Ogman v. Ebbert

Filing 25

MEMORANDUM and ORDER ADOPTING the report and recommendation of MJ Blewitt 22 ; DENYING petitioners' 5 Motion for Preliminary Injunction; DENYING petitioner's 15 Motion for Summary Judgment; Clerk of Court is directed to CLOSE case. Signed by Honorable James M. Munley on 11/29/10 (sm, )

Ogman v. Ebbert

Doc. 25

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA M A R V IN OGMAN, P e t itio n e r : N o . 3:10cv1342 : : (J u d g e Munley) : : (M a g is tr a te Judge Blewitt) v. : : D A V ID J. EBBERT, : R espondent : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM B e fo re the court are petitioner's objections to the report and recommendation o f Magistrate Judge Thomas M. Blewitt, which proposes that the court dismiss the in s ta n t petition for a writ of habeas corpus and deny the petitioner's motion for a p re lim in a ry injunction. B a c k g ro u n d O n June 28, 2010, Marvin Ogman, an inmate at the United States Prison in A lle n w o o d , Pennsylvania, filed the instant petition for a writ of habeas corpus in this c o u rt pursuant to 28 U.S.C. § 2241. (See Petition for Writ of Habeas Corpus (Doc. 1 ) (hereinafter "Petition")). Petitioner contends that he is currently serving a 95m o n th sentence for drug-related charges. (Id.). He is scheduled for release on May 1 1 , 2011. (Id.). Beginning in January 2010, petitioner sought from the Bureau of P ris o n s consideration for a twelve-month placement in a Residential Reentry Center ("R R C ") pursuant to the Second Chance Act, 18 U.S.C. § 3624(c). (Id.). When the

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prison did not respond to his initial request, petitioner on January 17, 2010 filed an In fo rm a l Resolution Form with the prison requesting an "adequate response." (Id.). On January 26, 2010, petitioner requested an administrative remedy from the p ris o n 's warden, Respondent David Ebbert. (Id.). Warden Ebbert responded by d e n y in g petitioner's request. (Id.). Petitioner appealed this decision to the Regional D ire c to r for the Bureau of Prisons, who denied his request. (Id.). On April 16, 2010, p e titio n e r appealed to the Central Office, which initially denied his request for failure to submit paperwork. (Id.). This denial was without prejudice, and petitioner re s u b m itte d his claim. (Id.). Petitioner then filed the instant action, alleging that the p ris o n had violated the Second Chance Act by failing to provide incentives for p ris o n e rs to participate in skills development programs. (Id.). Included among these re q u ire d incentives, petitioner claims, is a statutory mandate to consider prisoners fo r early placement in residential reentry centers. (Id.). Petitioner alleges that his rig h ts were violated because the prison does not properly provide that incentive. He s e e k s immediate placement in an RRC program. M a g is tra te Judge Blewitt provided the petition with an initial screening p u rs u a n t to Rule 4 or the Rules Governing Section 2254 Cases in the U.S. District C o u rts . Judge Blewitt concluded that petitioner had failed to exhaust his a d m in is tra tiv e remedies as required under settled law in this Circuit. He therefore re c o m m e n d e d that the case be dismissed without prejudice. Petitioner filed o b je c tio n s to this report and recommendation, as well as a motion for a preliminary

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injunction. Petitioner provided the court with evidence that he had exhausted his a d m in is tra tiv e remedies, and this court therefore declined to adopt the report and re c o m m e n d a tio n . Instead, the court remanded the case to the magistrate judge. Respondent then filed a response to the petition and petitioner filed a motion for s u m m a ry judgment. After the parties briefed these issues, the magistrate judge is s u e d a report and recommendation proposing that petitioner's case be dismissed. Petitioner then filed objections, bringing the case to its present posture. J u r is d ic tio n Because petitioner filed his action pursuant to 28 U.S.C. § 2241, the court has ju ris d ic tio n pursuant to 28 U.S.C. § 1331 ("The district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws, or treaties of the U n ite d States."). Legal Standard When dealing with objections to a magistrate judge's report and re c o m m e n d a tio n , a district court must make a de novo determination of those p o rtio n s of the report to which objections are made. 28 U.S.C. § 636(b)(1)(c). This c o u rt may accept, reject, or modify, in whole or in part, the findings or re c o m m e n d a tio n s made by the magistrate. 28 U.S.C. § 636(b)(1)(c). The district c o u rt judge may also receive further evidence or recommit the matter to the m a g is tra te judge with instructions. Id. When no objections to portions of the report a n d recommendation have been filed, the court must determine whether a review of

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the record evidences plain error or manifest injustice. See, e.g., Sullivan v. Cuyler, 7 2 3 F.2d 1077, 1085 (3d Cir. 1983); FED. R. CIV. P. 72(b) 1983 Advisory Committee N o te s ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record to accept the recommendation"); 28 U.S.C. § 636(b)(1). Here, the petitioner has objected to the magistrate judge's re c o m m e n d a tio n that the petition for a writ of habeas corpus be dismissed, but has n o t objected to the recommendation that the motion for a preliminary injunction be d e n ie d . Discussion P e titio n for Writ of Habeas Corpus T h e magistrate judge recommended that the petition for a writ of habeas c o rp u s be denied. The court rejected petitioner's argument that respondent had fa ile d to give him proper consideration for a twelve-month placement in an RRC u n d e r the Second Chance Act, 18 U.S.C. § 3621(c). After considering the factors re q u ire d by the statute, the magistrate judge found, the Bureau had properly c o n c lu d e d that petitioner could best benefit from a 150 to 180 day term in an RRC. The magistrate judge noted that while plaintiff may have been eligible for up to tw e lv e months in an RRC, nothing in the statute requires a term of that length. The c o u rt also rejected petitioner's argument that the Bureau unlawfully failed to provide h im with an incentive to participate in prison skills-development programs. Nothing in the statute mandating such incentives, 42 U.S.C. § 17541, the court found,

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requires the prison to provide an extended stay in an RRC as an incentive for p a rtic ip a tio n in a skills program. P e titio n e r raises a single objection to this finding. He apparently does not d is a g re e with the conclusion that the Bureau considered the five factors contained in S e c tio n 3261(c) in evaluating the conditions for his release. The court agrees that n o clear error or manifest injustice exists in this finding. Petitioner insists, however, th a t the magistrate judge failed to address his claim that the Bureau of Prisons did n o t meet the statutory requirements of 42 U.S.C. § 17541 to establish incentives for p a rtic ip a tio n in skills development programs. Petitioner maintains that the Bureau of P ris o n s has not established such programs and therefore has failed to give him an o p p o rtu n ity to benefit from any incentives connected to them, which could include a re d u c tio n of one year in his sentence.1 T h e magistrate judge did address this claim about the absence of incentive p ro g ra m s , finding that such claims are not properly the subject of a habeas corpus p e titio n brought pursuant to 42 U.S.C. § 2441. The magistrate judge found that p e titio n e r's claim challenged the conditions of his confinement, not the fact or length o f his custody, and thus should have been brought pursuant to 42 U.S.C. § 1983. Petitioner appears to mis-read the statute on this point. The statute provides that "[t] Attorney General, in coordination with the Director of the Bureau of Prisons, shall, subject to the availability of appropriations, conduct the following activities to establish a Federal prison reentry initiative: . . . (2) Incentives for a prisoner who participates in reentry and skills development programs which may, at the discretion of the Director, include­(A) the maximum allowable period in a community confinement facility; and (B) such other incentives as the Director considers appropriate (not including a reduction of the term of imprisonment). 42 U.S.C. § 17541(a)(2)(A-B) (emphasis added). 5
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The Third Circuit Court of Appeals has emphasized that "whenever the challenge u ltim a te ly attacks the `core of habeas'­the validity of the continued conviction or the fa c t or length of the sentence­a challenge . . . must be brought by way of a habeas c o rp u s petition. Conversely, when the challenge is to a condition of confinement s u c h that a finding in plaintiff's favor would not alter his sentence or undo his c o n v ic tio n , an action under § 1983 is appropriate." Leamer v. Fauver, 288 F.3d 532, 5 4 2 (3d Cir. 2002). In this case, the challenge is to the Bureau's of Prison's im p le m e n ta tio n of Section 17541; petitioner argues that no incentive program has b e e n established as mandated by the statute. That challenge is not to the fact or le n g th of petitioner's confinement, but to the conditions of that confinement. Plaintiff's remedy if the Bureau has failed to establish those policies would be the p re s e n c e of incentive programs. The statute allows considerable discretion to the B u re a u on what incentives can be provided, but those incentives cannot include a re d u c tio n in the length of a sentence. As such, petitioner's claim regarding the p re s e n te n c e incentive programs is not properly before the court.2 The court will

In any case, there is no requirement that the incentives include a twelve-month placement in an RRC for prisoners who participate in skills-development programs. The statute provides for "[i]ncentives for a prisoner who participates in reentry and skills development programs which may, at the discretion of the Director, include­(A) the maximum allowable period in a community confinement facility." 42 U.S.C. 17541(a)(2)(A) (emphasis added). Twelve months in an RRC is therefore not a statutory requirement, but an example of an incentive that the Director of the Bureau of Prisons could choose to provide. The language of the statute is permissive, not mandatory. Participation in skill-development programs, therefore, does not convey a right to twelve months in an RRC. 6

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adopt the report and recommendation on this point.3 P e titio n e r 's Motions T h e petitioner has not objected to the magistrate judge's recommendation that th e court dismiss his motion for a preliminary injunction and his motion for summary ju d g m e n t. After careful review, the court concludes that this recommendation does n o t represent manifest injustice or clear error of law. As such, the court will adopt th e report and recommendation and deny the petitioner's motions for a preliminary in ju n c tio n and summary judgment. C o n c lu s io n F o r the reasons stated above, the court will dismiss the petitioner's objections to the report and recommendation. The court will adopt the report and re c o m m e n d a tio n and deny the petition for a writ of habeas corpus. The court will a ls o deny the petitioner's motion for a preliminary injunction and motion for summary ju d g m e n t. An appropriate order follows.

Petitioner's claim is also probably moot at this point. He seeks a twelve-month placement in an RRC. He is scheduled to be released in May, 2011 and has already begun his term in the RRC. As such, the court could not provide the relief he requests. 7

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA M A R V IN OGMAN, P e t itio n e r : N o . 3:10cv1342 : : (J u d g e Munley) : : (M a g is tr a te Judge Blewitt) v. : : D A V ID J. EBBERT, : R espondent : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER A N D NOW, to wit, this 29th day of November 2010, the petitioner's objections (D o c . 24) to the report and recommendation of Magistrate Judge Thomas M. Blewitt (D o c . 22) are hereby OVERRULED. The report and recommendation is ADOPTED. The petitioner's motion for a preliminary injunction (Doc. 5) is hereby DENIED. The p e titio n e r's motion for summary judgment (Doc. 15) is hereby DENIED. The Clerk of C o u rt is directed to CLOSE the case.

BY THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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