Schick v. Lara
Filing
19
OPINION AND ORDER: In light of the foregoing, the actual RRC bed space available at the time petitioner's pre-release placement was being considered is immaterial. Whatever space was available, the location and duration of petitioner's pre- release community confinement was committed to the BOP's discretion, and the court cannot reconsider the BOP's decision. Accordingly, petitioner's application for discovery is denied. (Signed by Magistrate Judge Henry B. Pitman on 3/8/2012) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
DAVID SCHICK,
:
Petitioner,
:
11 Civ. 1175 (DLC)(HBP)
-against-
:
OPINION
AND ORDER
FRANK LARA, Warden,
FCI Otisville,
:
:
Respondent.
:
-----------------------------------X
PITMAN, United States Magistrate Judge:
By an undated letter received by the Court's Pro Se
Office on August 16, 2011 (Docket Item 13), petitioner seeks
certain discovery.
For the reasons set forth below, the applica-
tion is denied.
This is an action brought pursuant to 28 U.S.C. § 2241
in which petitioner, a convicted felon who was formerly in the
custody of the United States Bureau of Prisons ("BOP"), seeks to
challenge a decision of the BOP limiting his pre-release community confinement to six months of home confinement.
The relevant
facts are set forth in full in my Report and Recommendation of
even date, familiarity with which is assumed.
One of the reasons
the BOP has given for its decision is the limited bed space that
was available in Residential Re-Entry Centers ("RRCs") in the
district into which petitioner was to be released.
Petitioner
now seeks discovery concerning the amount of RRC bed space
actually available at the time petitioner's referral for prerelease placement was being considered.
An inmate's challenge to a decision of the BOP concerning pre-release placement is a challenge to BOP's selection of
the place of the inmate's incarceration.
F.3d 71, 78 (2d Cir. 2006).
Levine v. Apker, 455
However, a prisoner has no constitu-
tional right to serve his sentence at a particular facility, Olim
v. Wakinekona, 461 U.S. 238, 249-50 (1983); Meachum v. Fano, 427
U.S. 215, 224-25 (1976), and the BOP's discretion to designate
the location at which an inmate will serve his sentence is
extremely broad.
Woodall v. Federal Bureau of Prisons, 432 F.3d
235, 245 (3rd Cir. 2005) ("In sum, we believe the statute indicates that the BOP may place a prisoner where it wishes, so long
as it considers the factors enumerated in § 3621." (emphasis in
original)); accord Levine v. Apker, supra, 455 F.3d at 82.
So
long as the BOP considers the factors enumerated in 18 U.S.C. §
3621(b), the BOP's decision as to where a prisoner shall serve
his sentence is not subject judicial review.
United States v.
Williams, 65 F.3d 301, 307 (2d Cir. 1995) (Decisions concerning
where prisoners are housed "are within the sole discretion of the
Bureau of Prisons.").
Even when the BOP has failed to consider
2
the factors enumerated in Section 3621(b), the only relief that a
court can grant is to direct the BOP to perform the designation
process in accordance with the statutory requirements; a court
cannot make the designation itself.
Mueses v. Terrell, 10-CV-
1701 (SLT), 2010 WL 4365520 at *4 (E.D.N.Y. Oct. 27, 2010) ("[I]n
order for a court to order the BOP to reconsider its placement
recommendation, the court must find that the BOP has abused its
discretion by failing to consider statutory factors.").
If the
BOP has considered the appropriate factors in reaching its
placement decision, a court cannot reconsider the BOP's placement
decision.
Fournier v. Zickefoose, 620 F. Supp. 2d 313, 319 (D.
Conn. 2009) ("[O]nce the court has determined that the BOP did
not exceed its authority in reaching its decision, it is beyond
the purview of the court to second guess the outcome."); see also
Owusu-Sakyi v. Terrell, 10-CV-507 (KAM), 2010 WL 3154833 at *5
(E.D.N.Y. Aug. 9, 2010); Wright v. Lindsay, 09-CV-4226 (KAM)(LB),
2010 WL 625360 at *4 (E.D.N.Y. Feb. 18, 2010).
The resources of the facility in which a prisoner's
placement is contemplated is one of the factors the BOP must
consider in making a placement decision.
28 U.S.C. § 3621(b)(1).
As the authorities cited in the foregoing paragraph teach,
however, a court cannot review the BOP's evaluation of those
resources.
Even if there was RRC bed space available at the time
3
petitioner's pre-release placement was being considered, the BOP
has the discretion to hold that bed space in reserve for antici
pated future needs, and a court cannot review that determination.
Moreover, because a prisoner has no right to be housed at any
particular facility, a court cannot revisit the BOP's pre-release
placement decision even if unlimited RRC bed space was available
at the time petitioner's placement was being considered.
In light of the foregoing, the actual RRC bed space
available at the time petitioner's pre-release placement was
being considered is immaterial.
Whatever space was available,
the location and duration of petitioner's pre-release community
confinement was committed to the BOP's discretion, and the court
cannot reconsider the BOP's decision.
Accordingly, petitioner's
application for discovery is denied.
Dated:
New York, New York
March 8, 2012
Respectfully submitted,
HENRYITMAN ~
United States Magistrate Judge
Copies mailed to:
Mr. David Schick
2209 Avenue I
Brooklyn, New York
11210
4
Alicia M. Simmons, Esq.
Assistant United States Attorney
Southern District of New York
86 Chambers Street
New York, New York 10007
5
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