McIntire v. Willis

Filing 12

OPINION AND ORDER Dismissing Petition for Habeas Corpus. Signed by U.S. District Judge Roberto A. Lange on 3/19/15. (SLW)

FILED
UNITED STATES DISTRICT COURT

MAR 19 2015

DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

ROBERTS. McINTIRE,

4: 14-CV-04108-RAL

Plaintiff,
OPINION AND ORDER DISMISSING
PETITION FOR HABEAS CORPUS

vs.
WARDEN WILLIS,
Defendant.

Robert Mcintire filed a petition under 28 U.S.C. § 2241 challenging a denial by the
Bureau of Prisons (BOP) of his request for a $500 release gratuity under 18 U.S.C. § 3624(d).
Because 28 U.S.C. § 2241 is not the correct procedural vehicle for the claim Mcintire asserts,
this Court dismisses his petition for a lack of jurisdiction.
I.

Background
In 2007, a federal judge sentenced Mcintire to ten years in prison for drug crimes. Doc.

10-1 at 3. Mcintire was transferred to the Federal Prison Camp in Yankton, South Dakota, in
2010. Doc. 10 at 1-2. He filed the present petition on July 14, 2014, alleging that he was
entitled to a $500 release gratuity under 18 U.S.C. § 3624(d) rather than the $100 the BOP
planned to give him. Doc. 1. Mcintire was released from custody on July 22, 2014, based on
good conduct time and received a $100 release gratuity. Doc. 10-1 at 4. The Government filed a
response in October 2014, arguing that this Court lacks jurisdiction because the relief Mcintire
seeks cannot be granted through a habeas petition and because the issue is moot given his release

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from custody, or alternatively, that Mcintire is not entitled to the relief he seeks because the
issuance of gratuities is within the discretion of the BOP. Doc. 9.
II.

Analysis
Habeas corpus petitions under 28 U.S.C. § 2241 allow prisoners to challenge the fact or

duration of their confinement, not the conditions of their confinement. Spencer v. Haynes, 774
FJd 467, 469-70 (8th Cir. 2014); Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (per
curiam). When a prisoner "seeks a writ of habeas corpus and fails to attack the validity of his
sentence or the length of his ... custody, the district court lacks the power or subject matter
jurisdiction to issue a writ." Kruger, 77 F.3d at 1073.
Here, Mcintire is challenging the BOP's decision concerning his release gratuity rather
than challenging the validity of his conviction or the length of his sentence. As a consequence,
this Court lacks jurisdiction under§ 2241 to consider Mclntire's claim. Kruger, 77 F.3d at 1073;
Morris v. Zickefoose, No. 10-1511 (NLH), 2010 WL 4387502, at *2 (D.N.J. Oct. 29, 2010)
(dismissing for lack of jurisdiction § 2241 petition seeking release gratuity); Sumners v. Reese,
No. 5:07cv58-DCB-MTP, 2007 WL 1438982, at *2 (S.D. Miss. May 11, 2007) (concluding that
a claim for a release gratuity was not "habeas in nature" and dismissing petition); see also
Fitzgerald v. Thomas, No. 07-1842-CL, 2008 WL 2628442, at *1 n.l (D. Or. June 30, 2008)
(concluding that a claim for a release gratuity was essentially a request for monetary relief,
which is not available under § 2241 ).
Mclntire's petition appears to be a Bivens action. See Bivens v. Six Unknown Named
Agents of Ped. Bureau of Narcotics, 403 U.S. 388, 395-96 (1971) (allowing cause of action for
damages arising from constitutional violations by federal officers). Mcintire argues that he is
entitled to a $500 gratuity because he has not received any financial support from his relatives

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and because he was released to a common-law halfway house rather than a BOP Residential
Reentry Center (RRC), which would provide meals, clothing, and transportation to employment.
Mcintire's argument best can be understood as a claim that the BOP committed a due process
violation by refusing to provide him with the full $500 amount to which he was entitled under 18
U.S.C. § 3624(d).
Mcintire ideally should be given an opportunity to opt to have his claim deemed to be a
Bivens action. In Spencer v. Haynes, 774 F.3d 467 (8th Cir. 2014), the United States Court of
Appeals for the Eighth Circuit found that the district court should have liberally construed a
prisoner's § 2241 petition and allowed the prisoner the option to proceed under Bivens rather
than dismissing the prisoner's complaint. Id. at 471. However, the Eighth Circuit qualified:
[W]e think it appropriate to consider the potential detriment to
habeas petitioners if district courts, sua sponte, transformed their
habeas petitions into Bivens . . . claims, and vice versa. As a
result, we think the better practice will be for district courts to first
obtain the consent of the pro se individual before converting their
claims from a habeas proceeding to a Bivens action.
Id. at 471 (internal citation omitted). The concerns alluded to in Spencer about converting a
prisoner's habeas petition to a Bivens action-including whether the proper defendant is named,
filing fees and the means of collecting them, and restrictions on future filings-are not present
here because Mcintire's claim ultimately lacks any merit and because Mcintire no longer is a
prisoner. Accordingly, this Court will consider whether Mcintire has a viable Bivens claim for a
violation of the Due Process Clause regarding his release gratuity being just $100.
The Due Process Clause of the Fifth Amendment prohibits the Government from
depriving people of their property "without due process of law." Dusenbery v. United States,
534 U.S. 161, 167 (2002). To establish a due process violation, Mcintire must demonstrate that
he has a protected property interest in receiving the full $500 release gratuity under § 3624(d).
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I

Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808 (8th Cir. 2003). Whether § 3624(d) created a
property interest in receiving the full gratuity depends upon the extent to which the statute
restricts the discretion of the BOP. As the Eighth Circuit has explained, "[a] statute ... will give
rise to a protected property interest only where (1) it contains particularized substantive
standards or criteria that guide the decisionmakers, and (2) it uses mandatory language requiring
the decisionmakers to act in a certain way, thus limiting the official's discretion." Jennings v.
Lombardi, 70 F.3d 994, 996 (8th Cir. 1995); see also Dunham v. Wadley, 195 F.3d 1007, 1009
(8th Cir. 1999) ("Statutes ... that grant to a decision maker discretionary authority in their
implementation ... do not create protected property interests.").
The language of § 3624(d) and the relevant regulatory provision make clear that the
amount of the release gratuity given to an inmate is entirely within the discretion of the BOP.
Section 3624(d) provides:
Upon the release of a prisoner on the expiration of the prisoner's
term of imprisonment, the Bureau of Prisons shall furnish the
prisoner with(1) suitable clothing;
(2) an amount of money, not more than $500, determined
by the Director to be consistent with the needs of the offender and
the public interest, unless the Director determines that the financial
position of the offender is such that no sum should be furnished;
and
(3) transportation.
18 U.S.C. § 3624(d). The BOP, in tum, has promulgated 28 C.F.R. § 571.20, which states:
It is the policy of the Bureau of Prisons that an inmate being
released to the community will have ... some funds to use until he
or she begins to receive income. Based on the inmate's need and
financial resources, a discretionary gratuity up to the amount
permitted by statute may be granted.

28 C.F.R. § 571.20.

Although 18 U.S.C. § 3624(d) and 28 C.F.R. § 571.20 set forth some

criteria for the BOP to consider, they do not restrict the BOP's discretion to such an extent to
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give a prisoner like Mcintire a protected property interest in the full $500 release gratuity. See,
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Morrow v. Rios, No. 08-320 (JRT/RLE), 2009 WL 924525, at *15 (D. Minn. Mar. 31,

2009) (rejecting claim that petitioner was entitled to release gratuity because the payment of such
a gratuity was subject to BOP's discretion); Kenan v. Francis, No. 2:05-cv-76, 2006 WL
3900109, at *5 (N.D.W. Va. June 13, 2006) (same); Palmer v. Fed. Bureau of Prisons, No. CV.
05-1907-MO, 2006 WL 533511, at *2 (D. Or. Mar. 2, 2006) (same). Because Mcintire does not
have a property interest in the release gratuity, he is unable to establish a due process violation.
Nativi-Gomez, 344 F.3d at 808. Mcintire likewise cannot establish that he has a protected
liberty interest in a release gratuity. See Morrow, 2009 WL 924525, at *15 n.14 (concluding that
a prisoner's claim for a release gratuity under § 3624(d) does not present a legally cognizable
liberty interest so as to trigger due process protection).
Materials of record reveal yet another reason why Mclntire's claim is not meritorious.
Mcintire cannot establish that the BOP abused its discretion by denying his request for a $500
release gratuity. First, Mclntire's inmate trust fund account reflects monthly earnings ranging
from $22.77 to $91.95 while he was incarcerated at the Yankton Federal Prison Camp. Doc. 10
at 3; Doc. 10-4. The BOP urged Mcintire to save these earnings for his eventual release. Doc.
10 at 2-3; Doc. 10-2. Nevertheless, Mclntire's balance on July 22, 2014, was only $12.99,
despite his having earned $287.92 in the previous six months. Doc. 10 at 3; Doc. 10-5. Second,
the BOP was aware of Mclntire's concerns about not receiving financial support from his family
and not being placed in a BOP RRC. Doc. 10-2 at 7; Doc. 10-3. The BOP addressed these
concerns by securing a placement for Mcintire with a Public Law RRC for up to 180 days to
allow him to secure employment, save money, and locate a suitable residence prior to being
released into the community. Doc. 10 at 2-3; Doc. 10-2 at 7; Doc. 10-3. A Public Law RRC

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placement provides benefits to inmates similar to those afforded inmates who reside in BOP
RRCs, without the inmate having to pay a percentage for residing there. Doc. IO at 3. Based
upon Mclntire's failure to save the money he earned in prison and his placement with a Public
Law RRC, the BOP determined that a $100 release gratuity, along with $15 for cab fare and $21
for food while en route to the Public Law RRC, was sufficient for Mcintire. Doc. 1-5 at 2; Doc.
10 at 3. This was an entirely reasonable exercise of the BOP's discretion.

III.

Conclusion

For the reasons stated above, it is hereby
ORDERED that Plaintiffs Petition, Doc. 1, is dismissed and that judgment for Defendant
enter.

Dated March /'t~2015.

BY THE COURT:

R~fi~

UNITED STATES DISTRICT JUDGE

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