CURRY v. CARAWAY

Filing 26

MEMORANDUM re petition 1 filed by Daniel J. Curry (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 08/18/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL J. CURRY,
Petitioner
v.
J. L. THOMAS,
Respondent

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CIVIL NO. 1:CV-14-0756
(Judge Rambo)

MEMORANDUM
Petitioner Daniel J. Curry, an inmate currently incarcerated at the United States
Penitentiary at Allenwood (“USP-Allenwood”) in White Deer, Pennsylvania, filed the
instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on August 5,
2013,1 seeking an order compelling Respondent to place him in a residential re-entry
center (“RRC”) for the maximum time permissible in the remainder of his sentence, in
accordance with an incentive provision in the Second Chance Act of 2007. (Doc. 1.)
For the reasons that follow, the petition will be denied.

Plaintiff initially filed his habeas petition in the Southern District of Indiana, where he
was incarcerated at the time. (See Doc. 1.) On April 17, 2014, due to Plaintiff’s transfer to the
Middle District of Pennsylvania, the Indiana court transferred this matter to this court. (See Doc.
17.)
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I.

Background
Petitioner arrived at USP-Allenwood on March 11, 2014, and has been assigned

to Case Manager Randy Arnold. (Doc. 25-2 at 1, Ex. 1, R. Arnold Decl.) On July 16,
2014, Mr. Arnold conducted a search of Petitioner’s inmate records and determined
that he has not yet been considered for RRC placement. (Id. at 2.) In addition, Mr.
Arnold learned that Petitioner’s projected release date via good conduct time is April
11, 2016. (Id. at 4.) As a result, Mr. Arnold asserts that Petitioner is not eligible for
consideration of RRC placement until the fall of 2014. (Id.)
On April 9, 2008, the Second Chance Act of 2007, Pub. L. No. 110-199, Title
II, § 251, 122 Stat. 657, 692 (“Second Chance Act”), codified at 18 U.S.C. §§ 3621,
3624, was signed into law. The Second Chance Act increases the duration of prerelease placement in an RRC from six (6) to twelve (12) months and requires the
Bureau of Prisons (“BOP”) to make an individual determination that ensures that the
placement be “of sufficient duration to provide the greatest likelihood of successful
reintegration into the community.” 18 U.S.C. § 3624(c)(6)(C). (Apr. 9, 2008).
Thereafter, the BOP issued two guidance memoranda, dated April 14, 2008, (Doc. 252), and November 14, 2008, both of which required approval from the Regional
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Director for RRC placements of longer than six (6) months. The interim regulations
that passed on October 21, 2008 state that “[i]nmates may be designated to community
confinement as a condition of pre-release custody and programming during the final
months of the inmate’s term of imprisonment, not to exceed twelve months.” 28
C.F.R. § 570.21(a). Moreover, “[i]nmates will be considered for pre-release
community confinement in a manner consistent with 18 U.S.C. § 3621(b), determined
on an individual basis, and of sufficient duration to provide the greatest likelihood of
successful reintegration into the community, within the time-frames set forth in this
part.” 28 C.F.R. § 570.22 (Oct. 21, 2008).
Recommendations for RRC placement are ordinarily reviewed with the inmate
and Unit Team seventeen (17) to nineteen (19) months prior to the inmate’s probable
release date. (Doc. 25-2 at 4.) In addition, the Warden of the inmate’s institution has
final authority on whether to refer an inmate to the Community Corrections Manager,
which usually occurs eleven (11) to thirteen (13) months prior to the inmate’s
probably release date. (Doc. 25-2, Ex. 3, BOP Program Statement 7310.04,
Community Corrections Center Utilization and Transfer Procedures.) Each inmate
recommendation and referral is conducted by staff with the understanding that inmates
are entitled to a maximum RRC placement of twelve (12) months, but that specific
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RRC placement recommendations should be based on an individualized assessment of
a particular inmate’s needs for services, public safety, and the necessity of the BOP to
manage its inmate population responsibly. (Doc. 25-2 at 3) (citing BOP Program
Statement 7310.04).
On June 24, 2010, the BOP issued a revised guidance memorandum to its staff
which prescribed policies for RRC placements. See Wilson v. Strada, Civ. No. 3:11CV-1690, 2011 WL 6369787, at * 3 (M.D. Pa. Dec. 16, 2011) (citing June 24, 2010
Guidance Memo). This policy guidance underscores for prison staff that all inmates
are, by law, eligible for up to twelve (12) months pre-release RRC placement. (Id.)
While the memo acknowledges that not all inmates may be appropriate for RRC
placement, it further notes that with respect to those inmates who may appropriately
be placed in an RRC setting, the length of the RRC placement must be determined on
an individual basis. (Id.)
When assessing an inmate for RRC recommendation, the Unit Team considers
the criteria set forth in 18 U.S.C. § 3621(b), including the inmate’s need for services,
public safety, the necessity of the prison to manage its inmate population responsibly,
and any other pertinent information that will assist in rendering a decision. (Doc. 25-2
at 3.) In every instance, the goal of the statute and policy is to provide each inmate
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with an RRC placement of a sufficient duration to provide the greatest likelihood of
successful reintegration into the community, while ensuring the safety of the public.
(Id.) Further, the Unit Team must review the resources of the facility contemplated,
the nature and circumstances of the inmate’s offense, the history and characteristics of
the inmate, any statement of the court that imposed the sentence, and any pertinent
policy statement issued by the U.S. Sentencing Commission. (Id.) The inmate’s
institutional conduct and programming are also an important part of this assessment
process, and are considered to determine whether additional RRC time is warranted as
an incentive for positive behavior by the inmate under 42 U.S.C. § 17541. See
Wilson, 2011 WL 6369787, at *4 (citing 42 U.S.C. § 17541).
In the instant case, Petitioner is currently scheduled for release via good
conduct time on April 11, 2016. (Doc. 25-2 at 4.) Respondent asserts that, because of
his scheduled release date, Petitioner is not eligible for review for RRC placement
until the fall of 2014, and thus, a decision on RRC placement has not yet occurred in
his case. (Id.) In addition, Respondent notes that, once a RRC placement decision is
made, if Petitioner is dissatisfied with the decision, he can file a grievance in
accordance with the BOP’s Program Statement 1330.18, Administrative Remedy
Program, and 28 C.F.R. § 542.10, et seq. (See Doc. 25-2 at 4.)
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II.

Discussion
As set forth above, Petitioner has not yet received a decision from the Warden

as to his Unit Team’s RRC recommendation. Therefore, Petitioner’s habeas petition
is procedurally flawed. Specifically, Petitioner’s claim is not yet ripe for adjudication
because the BOP has not yet made an RRC placement decision in his case. The court
cannot address a petitioner’s concerns without the existence of some genuine,
currently justiciable case or controversy between the parties to litigation. Thus, a ripe
dispute is an essential prerequisite to any exercise of judicial authority. As this court
has observed,
“No principle is more fundamental to the judiciary’s proper role in our
system of government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.” Simon v. Eastern Kentucky
Welfare Rights Org., 426 U.S. 26, 37, 96 S. Ct. 1917, 48 L. Ed. 2d 450
(1976). Standing provides “justiciability: whether the plaintiff has made
out a ‘case or controversy’ between himself and the defendant within the
meaning of Art. III.” Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2130,
119 L. Ed. 2d 343 (1975). The Supreme Court has described three
elements that comprise the “irreducable constitutional minimum of
standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct.
2130, 119 L. Ed. 2d 351 (1992). A plaintiff must first “have suffered an
‘injury in fact’ - an invasion of a legally protected interest which is (a)
concrete and particularized [citations omitted] and (b) ‘actual or
imminent, not ‘conjectural or hypothetical.’” Id. (quoting Los Angeles v.
Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)).
Next, the injury suffered by the plaintiff must by casually connected to
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the conduct of which the plaintiff complains: “the injury has to be ‘fairly
. . . trace[able] to the challenged action of the defendant, and not . . . the
result [of] the independent action of some third party not before the
court.’” Id. (quoting Simon, 426 U.S. at 41-42). Finally, “it must be
‘likely’ as opposed to merely ‘speculative,’ that the injury will be
‘redressed by a favorable decision.’” Id.
Griffin v. Holt, Civ. No. 3:08-CV-1028, 2008 WL 5348138, at *2 (M.D. Pa. Dec. 17,
2008).
In this case, Petitioner claims that he has been unlawfully denied access to the
release program. Apparently, however, the government has yet to make that decision.
Therefore, because a final RRC placement decision had not been made at the time
Petitioner filed his habeas petition, it was not ripe, nor is it now. As decided in other
cases, where an inmate seeks judicial intervention in the RRC placement process
before a final placement decision has been made, a habeas petition must be dismissed
since the petition is premature and does not present a justiciable case or controversy.
See, e.g., Wilson v. Strada, Civ. No. 3:11-CV-1690, 2011 WL 6369787 (M.D. Pa.
Dec. 16, 2011); Rosario v. Scism, Civ. No. 1:10-CV-2600, 2011 WL 444145 (M.D.
Pa. Feb. 1, 2011); Stanko v. Ebbert, Civ No. 4:09-CV-2180, 2010 WL 1805387 (M.D.
Pa. May 5, 2010); Sass v. Thomas, Civ. No. 08-300-MA, 2009 WL 2230759 (D. Or.
July 23, 2009); Calloway v. Thomas, Civ. No. 08-544-MA, 2009 WL 1925225 (D. Or.
July 1, 2009); Griffin v. Holt, Civ. No. 3:08-CV-1028, 2008 WL 5348138 (M.D. Pa.
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Dec. 17, 2008). Moreover, the Third Circuit Court of Appeals has expressly held that
an inmate may not bring a habeas challenge to an anticipated Second Chance Act
decision prior to final agency action by the BOP. Stanko v. Obama, 393 F. App’x
849, 851 (3d Cir. 2010) (finding that because no BOP decision had been made in
petitioner’s case, any injury based on the application of the Second Chance Act to him
was speculative). Therefore, based on this precedent, Petitioner’s petition will be
dismissed since no final agency action has been taken, and this matter is not yet ripe
for resolution by the court.

III.

Conclusion
Based on the foregoing, the petition for writ of habeas corpus (Doc. 1) will be

dismissed. An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: August 18, 2014.

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