Tashbook v. Fox

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION for 11 Motion for Order filed by Robert Tashbook, 16 Report and Recommendation, Accordingly, the Petition (Doc. No. 1) is DISMISSED without prejudice and Petitioners Request for Order or Protection (Doc. No. 11) is DENIED as moot, as more fully set out. Signed by Honorable David L. Russell on 5/5/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBERT TASHBOOK,
Petitioner,
v.
JOHN B. FOX, Warden,
Respondent.

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Case No. CIV-16-37-R

ORDER
Before this Court is the Report and Recommendation of Magistrate Judge Shon T.
Erwin, recommending that Petitioner Robert Tashbook’s Petition seeking a writ of habeas
corpus under 28 U.S.C. § 2241 be dismissed. Doc. No. 16. Petitioner objects. Doc. Nos.
17, 19. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews the Report and
Recommendation de novo in light of Petitioner’s objections.1 As set forth below, the
Court AFFIRMS the decision of the Magistrate Judge, but on different grounds.
I.

Background
Petitioner filed the instant action after learning that he has been designated to

United States Penitentiary #2-Coleman, Florida (“USP #2-Coleman”). Petitioner alleges
that a transfer to this facility is a threat to his personal safety and violated 18 U.S.C. §
3621(b)(3). Doc. Nos. 1, at 1-3; 17, at 2. He seeks transfer to another facility where he

1
The Court construes the petition liberally in light of Petitioner’s pro se status. See Haines v. Kerner, 404
U.S. 519, 520–21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court
should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

1 

will remain safely in general population or, in the alternative, “to a parole-like setting.”
Doc. No. 1, at 3.
II.

The Magistrate Judge’s Report and Recommendation
The Magistrate Judge concluded that Petitioner failed to satisfy Article III’s “case

or controversy” requirement. Doc. No. 16, at 2-3. As discussed below, the undersigned
disagrees with the Magistrate Judge’s conclusion.
The Magistrate Judge found that Petitioner had not alleged “that he has suffered or
is threatened with an actual injury traceable to the Respondent – the warden at the
Federal Transfer Center where Petitioner was temporarily detained.” The undersigned
disagrees. In a habeas corpus action, the proper respondent is the petitioner’s immediate
custodian. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004); 28 U.S.C. § 2242. At the
time he filed his petition, Petitioner alleges he was incarcerated at the Federal Transfer
Center in Oklahoma City where Respondent Fox was the Warden. Doc. No. 1. The
Magistrate Judge also found that Petitioner’s concerns regarding a transfer to USP #2Coleman were not “certainly impending” or “imminent.” However, Petitioner alleged that
he had been designated to USP #2-Coleman. This designation is sufficient for the
purposes of imminence.
In addition to his conclusion regarding Article III jurisdiction, the Magistrate
Judge found that Petitioner did not allege he was being held in violation of the United
States Constitution or any of its laws or treaties. Doc. No. 16. The Court understands this
conclusion to relate to whether Petitioner’s claims are properly brought as a habeas
corpus proceeding, which is discussed further below.
2 

III.

Petitioner’s Claims Are Not Proper Under Section 2241
The undersigned agrees that Petitioner’s Section 2241 petition must be denied.

“Habeas corpus review is available under § 2241 if an individual is ‘in custody in
violation of the Constitution or laws or treaties of the United States.’” Palma–Salazar v.
Davis, 677 F.3d 1031, 1035 (10th Cir.2012) (quoting 28 U.S.C. § 2241(c)(3)). In the
Tenth Circuit, habeas petitions are limited to challenges to the fact and duration of
confinement which seek immediate release or a shortened period of confinement. Palma–
Salazar 677 F.3d at 1035; McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.
1997). Petitioner’s challenge to his designated facility, i.e., the place of his confinement,
does not fit within this limitation. Rather, this is a challenge to the conditions of his
confinement. The Tenth Circuit requires such claims to be brought as a civil rights action
pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388, 91 (1971) or 28 U.S.C § 1331. See Palma–Salazar, 677 F.3d at 1033
(“Because he seeks a change in the place of his confinement, which is properly construed
as a challenge to the conditions of his confinement, [petitioner’s] claims must be brought
pursuant to Bivens”); United States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006)
(“request by a federal prisoner for a change in the place of confinement is properly
construed as a challenge to the conditions of confinement and, thus, must be brought
pursuant to Bivens . . . ”); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231, 1236
(10th Cir.2005) (28 U.S.C. § 1331 is a sufficient statutory basis for equity jurisdiction
over federal prisoner’s constitutional claims seeking injunctive relief against federal
actors concerning conditions of confinement); Arocho v. Nafziger, 367 F. App’x 942, 946
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n. 3 (10th Cir. 2010) (“Bivens suits are limited to damages, but equitable relief is
available in the nature of injunction and/or mandamus under 28 U.S.C. §§ 1331 and/or
1361”) (citing Simmat, 413 F.3d at 1236.).
Petitioner’s Objections (Doc. Nos. 17, 19) to the Report and Recommendation
supports the Court’s conclusion.2 Petitioner argues that the decision to transfer him to
USP #2-Coleman was done in violation of § 3621(b); that given this designation, the
transfer and resulting harm were imminent; that Warden Fox could have prevented the
transfer; and that he intends to call witnesses to demonstrate transfer to USP #2-Coleman
was improper. Doc. Nos. 17, 19. These arguments support the Court’s conclusion that
Petitioner’s Section 2241 claim is properly construed as a challenge to the place of, and
therefore the conditions of, his confinement. Accordingly, Petitioner’s challenge must be
brought pursuant to Bivens or 28 U.S.C. § 1331.3
IV.

Petitioner’s Request for Transfer to a “Parole-Like” Setting or “Quantum
Change” in Custody
As an alternative ground of relief, Petitioner seeks transfer to a “parole-like

setting,” and, for the first time in his Objections, for a “quantum change in his custody.”
Doc. Nos. 1 at 3; 17 at 5. A “quantum change in custody” refers to a change in the level
of freedom available to the inmate:
. . . the prisoner is seeking what can fairly be described as a
quantum change in the level of custody—whether outright
freedom, or freedom subject to the limited reporting and
financial constraints of bond or parole or probation, or the run

2
Petitioner filed two Objections, one designated a “draft” (Doc. No. 17) and a subsequent objection
incorporating by reference and supplementing the “draft” Objection (Doc. No. 19). The Court has
considered both Objections.
3
The Court does not express an opinion of the merits of such a claim.

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of the prison in contrast to the approximation to solitary
confinement that is disciplinary segregation . . .
Graham v. Broglin, 922 F.3d 379, 381 (7th Cir. 1991); Palma-Salazar, 677 F.3d at 1037
n. 2 (quoting id.); Porter v. Denham, 2015 WL 3961086, at *3 (D. Colo. June 29, 2015)
(describing a “quantum change” as a change in the level of freedom). Some circuits have
found that a petition requesting a quantum change in custody is cognizable as a habeas
petition. See, e.g., Graham, 922 F.3d at 381. Although the Tenth Circuit has not explicitly
adopted this concept, it has suggested that such requests could be cognizable under
Section 2241. See Boutwell v. Keating, 399 F.3d 1203, 1208-10 (10th Cir. 2005)
(challenge to denial in state pre-parole conditional supervision program should proceed
under habeas); Palma-Salazar, 677 F.3d at 1037 n. 2 (“This court’s precedents, including
Boutwell, indicate the types of claims cognizable under § 2241 are those in which an
individual seeks . . . placement on parole or in a parole-like custodial setting, or
immediate release from, or a shortened period of, custody altogether”); see also Porter,
2015 WL 3961086, at *4 (noting the Tenth Circuit has neither accepted nor rejected the
concept that request for quantum change is cognizable under Section 2241).
However, under the circumstances, the Court does not construe these requests to
constitute a challenge to the fact or duration of Petitioner’s confinement. At bottom,
Petitioner challenges his designation to USP #2-Coleman for safety reasons. Doc. No. 1,
at 1 (“Mr. Tashbook was notified . . . he will be transferred to USP #2- Coleman, FL. It is
this designation/transfer that concerns him and this petition”). Petitioner does not claim

5 

entitlement to a “parole-like setting” or a “quantum change” in custody, but instead
presents them as solutions to the allegedly improper conditions of his confinement.
Nevertheless, to the extent that Petitioner’s request for transfer or release into a
“parole-like” setting or for a “quantum change” in custody could be construed as a
challenge to the fact or duration of his confinement, his petition is still subject to
dismissal.4 Though not clear, it appears Petitioner’s request for a “parole-like setting” or
a “quantum change” in custody refers to placement into pre-release community
confinement (such as in a Residential Reentry Center or Community Correction Center5).
The propriety of such placement is governed in tandem by 18 U.S.C. §§ 3621(b) and
3624(c)6 and guided by memoranda issued by the Bureau of Prisons (“BOP”) on April
14, 2008, November 14, 2008, and June 24, 2010. This authority requires that prison
officials consider Section 3621(b) factors when determining if pre-release inmates7 are
appropriate for pre-release community confinement and reviewing requests for transfers

4
“If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the petition . . . ” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)); see also
Mayle v. Felix, 545 U.S. 644, 656 (2005) (same) (citing id.); Boutwell, 399 F.3d at 1210 n.2 (same).
5
Both terms describe “residence in a community treatment center, halfway house, restitution center,
mental health facility, alcohol or drug rehabilitation center, or other community correctional facility
(including residential re-entry centers); and participation in gainful employment, employment search
efforts, community service, vocational training, treatment, educational programs, or similar facilityapproved programs during non-residential hours.” 28 C.F.R § 570.20(a); see also Garza v. Davis, 596
F.3d 1198 (10th Cir. 2010) (quoting id.).
6
As relevant here, Section 3624(c) provides that “[t]he Director of the Bureau of Prisons shall, to the
extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final
months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable
opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions
may include a community correctional facility.” 18 U.S.C. § 3624(c)(1).
7
Pre-release inmates are those inmates close to their projected release date. The BOP requires prison
officials to consider whether a pre-release inmate is eligible for pre-release community confinement
within seventeen to nineteen months of their projected release date. See Memorandum from Federal
Bureau of Prisons to Chief Executive Officers (April 14, 2008).

6 

to pre-release community confinement from non-prerelease inmates. See Garza v. Davis,
596 F.3d. 1198, 1202-03 (10th Cir. 2010) (discussing the statutory framework). Petitioner
makes no allegation that he is a pre-release inmate (nor could he, as his projected release
date is January 21, 2054 according to the BOP website)8, nor that he made a request for
transfer to pre-release community confinement that was not given due consideration.9
Accordingly, on the facts before this Court, such a claim is not cognizable.10
V.

Request for Order or Protection
In light of his recommendation that the Petition be dismissed, the Magistrate Judge

recommended that Petitioner’s Request for Order or Protection (“Request”) be stricken as
moot. Petitioner objects, citing cases discussing whether voluntary cessation of certain
conduct moots a case. These cases are inapposite, because the Magistrate Judge
recommended denying the Request on mootness grounds based on the closure of the case,
not on the voluntary cessation of any conduct. The Court agrees with the
recommendation. Accordingly the Request is DENIED as moot.

8
The Court may take judicial notice of the BOP’s website. See Fed. R. Evid. P. 201; Triplet v. Franklin,
365 F. App’x. 86, 92 n.8 (10th Cir. Feb. 5, 2010) (citing Rule 201, taking judicial notice of Oklahoma
Department of Corrections’ website); Cantrell v. Rhodes, 2014 WL 6755971 (D. Colo. Dec. 1, 2014)
(citing Triplet, taking judicial notice of BOP website.)
9
Additionally, there is no allegation that Petitioner exhausted his administrative remedies or that
exhaustion would be futile with respect to a request for a pre-release transfer to community confinement.
See Garza, 596 F.3d at 1205 (administrative remedy process a perquisite to filing a habeas petition).
10
To the extent Petitioner’s request for a quantum change in his Objections refers to a transfer to a lowersecurity prison, he has not alleged sufficient facts to demonstrate such a transfer is anything more than a
“garden variety prison placement,” and therefore not proper as a habeas action. See Palma-Salazar, 677
F.3d at 1037; Porter, 2015 WL 3961086, at *4.

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VI.

Conclusion
Accordingly, the Petition (Doc. No. 1) is DISMISSED without prejudice and

Petitioner’s “Request for Order or Protection” (Doc. No. 11) is DENIED as moot.11
IT IS SO ORDERED, this 5th day of May, 2016.

11
The Court declines to sua sponte recharacterize Petitioner’s allegations as a Bivens or Section 1331
action. “[E]ven fully informed district courts that try their best not to harm pro se litigants by
recharacterizing may nonetheless end up doing so because they cannot predict and protect against every
possible adverse effect that may flow from recharacterization.” Castro v. United States, 540 U.S. 375,
387-88 (2003) (Scalia, J., concurring); see also Richards v. Bellmon, 941 F.3d 1015, 1018 n. 3 (10th Cir.
1991) (recharacterization “borders on advocacy and could interfere with a possible tactical choice by the
plaintiff”); Garcia v. Scibana, 2006 WL 2811901, at *1 (W.D. Okla. Sept. 28, 2006) (Friot, J., adopting
Report and Recommendation of then Magistrate Judge Bacharach declining to recharacterize Section
2241 Petition as a Bivens action). For example, if the Court were to recharacterize this action, Petitioner
would be required to pay an additional filing fee. See 28 U.S.C. §§ 1914(a), 1915(b)(1); LCvR 3.2; For
this reason, the Court leaves the decision to Petitioner to determine whether to pursue relief in a civil
rights action.

8