Green v. Maye

Filing 10

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Reginald Green. The Magistrate Judge RECOMMENDS that the District Judge DENY Reginald Greens Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Signed by Judge Andrew W. Austin. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
REGINALD GREEN, #63828-080,
V.
CLAUDE MAYE, WARDEN FEDERAL
CORRECTIONAL INSTITUTE,
BASTROP, TEXAS

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A-12-CA-065 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Reginald Green’s Petition for Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2241 (Clerk’s Doc. No. 1) and Respondent’s Response to Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (Clerk’s Doc. No. 8).
The Magistrate Judge submits this Report and Recommendation to the United States District
Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of the
United States District Court for the Western District of Texas, Local Rules for the Assignment of
Duties to United States Magistrate Judges.
I.

GENERAL BACKGROUND
Petitioner Reginald Green is currently serving a 384-month sentence for imprisonment for

Conspiracy to Distribute in Excess of 50 Grams of Cocaine Base and Continuing Criminal Enterprise
imposed in the Norther District of Mississippi - Eastern Division. He is currently incarcerated at FCI
Bastrop and his projected release date is May 19, 2025.
Green filed the instant pro se habeas petition under 28 U.S.C. § 2241 on January 23, 2012.
He alleges that the Bureau of Prisons (“BOP”) has improperly banned him from using the Trust Fund

Limited Inmate Computer System (“TRULINCS”) in violation of: his Due Process rights, the Equal
Protection Clause of the Constitution, and the Administrative Procedure Act. The parties do not
dispute that Green has exhausted his administrative remedies.
Green complains that the BOP is wrongly denying him access him to e-mail. The parties
agree that while Green was imprisoned at FCI Three Rivers, he ordered a book entitled “Hacking
Exposed” which was confiscated and instigated an investigation uncovering various contraband
items in his cell. Because of the incident, Green is denied access to computers and TRULINCS for
the duration of his imprisonment.
II.

ANALYSIS
The essence of a petition for writ of habeas corpus under 28 U.S.C. § 2241 is an attack by

a person in custody upon the legality of that custody, and the traditional function of the writ is to
secure release from illegal custody. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Thus, a § 2241
petition attacks the manner in which a prisoner’s sentence is carried out or the prison authorities’
determination of its duration. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). A petition for writ
of habeas corpus may only be filed in the district where the prisoner is incarcerated. Id. A challenge
to a condition of confinement by a federal prisoner, such as Petitioner bring in this case, is properly
brought by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See United States
v. Huss, 520 F.2d 598, 603 (2d Cir. 1975); 28 U.S.C. § 2241(c)(3).
TRULINCS procedures are set forth in the Bureau of Prisons Policy Statement 5265.13. See
http://www.bop.gov/DataSource/execute/dsPolicyLoc. Using TRULINCS, an inmate is permitted
to send or receive electronic, computer-based, written messages to and from family members and
friends in the community who are included on the inmate’s electronic message contact list. Thus,
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TRULINCS provides inmates with an alternative method of written communication. See Program
Statement 5265.13(2). The Bureau of Prisons Policy Statement 5265.13 states that the use of
TRULINCS is a privilege and that the BOP has absolute discretion in determining whether to limit
or deny the use of TRULINCS by an inmate. See Program Statement 5265.13(2). When the BOP
determines that an inmate’s use of the electronic messaging system would threaten the safety or
security of the public or a prison facility or interfere with the orderly operation of the prison facility,
the inmate will not be permitted to use TRULINCS. See id.
Petitioner in this case requests that the Court require the BOP to “lift the TRULINCS ban”
against him.
A.

Due Process Claims

Green argues that the BOP denied him due process by declaring him ineligible to use the
TRULINCS messaging system. Prisoners charged with institutional rules violations are entitled to
rights under the Due Process Clause only when the disciplinary action may result in a sanction that
will infringe upon a constitutionally protected liberty interest. See Sandin v. Conner, 515 U.S. 472
(1995). The Fifth Circuit has held that the only actions that affect a prisoner’s liberty interests are
those that affect the duration of his sentence. Thompson v. Cockrell, 263 F.3d 423, 425 (5th Cir.
2001). A prisoner does not have a constitutionally protected liberty interest in using TRULINCS,
at its use does not affect the duration of one’s sentence and is a privilege. See Madison v. Parker,
104 F.3d 765 (5th Cir. 1997); see Glick v. Montana Dept. of Corrections, No. CV 07-41-H-DWM,
2009 WL 2959730, at *2 (D. Mont. May 7, 2009) (adopting recommendation to dismiss claim of
denial of access to computer, email and other electronic communications because computer access
is not a constitutional right and prohibition on use of computer and email did not violate free speech
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or expression because inmate had other means of communication available to him).

Because

Green’s due process rights are not implicated by his ban from using TRULINCS, the Court rejects
his due process claim.1
B.

Equal Protection Claim

Green next argues that the BOP’s limitation on his computer use violates the Equal
Protection Clause of the Fourteenth Amendment.2 He contends that other inmates who are sexcrimes offenders or whose crimes were directly related to computer use are not excluded from using
TRULINCS, while he is being denied access for merely ordering a book about computer hacking.
The Equal Protection Clause requires the government to treat similarly situated persons alike.
See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). To prevail, “a plaintiff
must plead and prove that the defendant acted with discriminatory purpose . . . on account of race,
religion, or national origin.” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1948 (2009); see
Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977)
(requiring proof of racially discriminatory intent or purpose to show violation of equal protection).
Thus, a plaintiff must allege an improper motive, and not merely a discriminatory impact. See
Washington v. Davis, 426 U.S. 229, 245 (1976).
Plaintiff in this case has failed to plead that he is a member of a suspect class or to identify
an improperly discriminatory motive. His claim fails on this basis. McCleskey v. Kemp, 481 U.S.

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Additionally, because Green is still able to communicate with friends and family outside of
prison through the United States mail, his First Amendment rights are not implicated.
2

The Due Process Clause of the Fifth Amendment applies to the federal government and
imposes the same equal protection requirements as the Fourteenth Amendment imposes on the states.
Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
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279 (1987); Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992). When a plaintiff fails to
allege that he is a member of a suspect class, and “if the challenged government action does not
appear to classify or distinguish between two or more relevant persons or groups, then the
action—even if irrational does not deny them equal protection of the laws.” Brennan v. Stewart, 834
F.2d 1248, 1257 (5th Cir. 1988).
Additionally, Petitioner has failed to show a lack of a rational basis for the difference in
treatment between him and other inmates. See Unruh v. Moore, 326 Fed. Appx. 770, 772 (5th Cir.
2009) (rejected equal protection claim based on rational basis where an inmate was treated
differently due to disciplinary history and security concerns). The BOP asserts that the decision to
deny Green access to TRULINCS was a result of his attempt to educate himself about computer
hacking. Green’s actions showed he was a potential threat to the prison computer system and
possibly the public. The Court finds the BOP’s decision to exclude Green from computer access is
rationally related to a legitimate peneological interests. See Brown v. Dretke, 2006 WL 1582719,
at *1 (5th Cir. 2006) (finding that subjecting inmates who are sex offenders to different parole
proceedings is reasonably related to legitimate penological interests). Accordingly, Petitioner’s
equal protection claim fails.
C. Administrative Procedure Act Claim
Green also asserts that the BOP violated the Administrative Procedure Act when it
promulgated Program Statement 5265.13, which deals with Electronic Messaging. Green seems
to assert that the BOP’s Program Statement 5265.13 violates the “notice and comment” provisions
of the rulemaking procedures of the APA, codified at 5 U.S.C. §§ 553(b) and (c). However, Program
Statement 5265.13 is not the type of agency decision that requires notice and comment. See Russell
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v. Whitehead, No. DKC–09–3007, 2010 WL 2367370, at *3 (D. Md. 2010) (noting that Program
Statement 5265.13 is only an interpretive internal agency explanation or guideline) (citing Reno v.
Koray, 515 U.S. 50, 61 (1995) (noting that BOP Program Statements are not “laws” within the
meaning of the statute because they do not constitute regulations promulgated in compliance with
the notice and comment requirements of the Administrative Procedure Act; rather they are internal
agency guidelines that are “akin to . . . interpretive rules”)).
To the extent that Green attacks Program Statement 5265.13 as “arbitrary and capricious,”
as an interpretive rule, Program Statement 5265.13 is unreviewable by the Court as it falls within
the BOP’s broad discretionary powers to administer prisons. TRULINCS procedures are set forth
in the Bureau of Prisons Policy Statement 5265.13.3 In that policy statement. the BOP acknowledges
that its authority to implement TRULINCS is found in 18 U.S.C. § 4042(a). Id. at 2. Section
4042(a) addresses only the general responsibilities of the BOP, and thus, “[t]he absence of specific
guidelines of appropriate conduct by BOP officials in administering these duties . . . leaves judgment
or choice to BOP officials.” Scrima v. Hasty, 1998 WL 661478, at *3 (S.D. N.Y.1998). The total
absence of specific guidelines indicates that the BOP has broad discretion in fulfilling its
responsibilities. See Harrison v. Federal Bureau of Prisons, 464 F.Supp.2d 552, 558 (E.D. Va.
2006); Crooker v. Morris, 1996 WL 608553, at *6 (D. N.J. 1996) (“[I]t is well-settled that the BOP
generally has wide discretion to implement the . . . provisions in § 4042(a)”) (other citations
omitted)).
Therefore, the APA precludes judicial review where, as here, the BOP has broad discretion
to provide suitable quarters and care for inmates, which would include the provision of electronic
3

See www.bop.gov/policy/progstat/5265_013.pdf (last visited June 1, 2012).
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messaging services. See Harrison, 464 F.Supp.2d at 558 (holding that inmate plaintiff's challenge
to increased cost of telephone calls pursuant to a program statement implemented under § 4042 was
precluded by the APA). Accordingly Green’s final claim also fails.
III.

RECOMMENDATION
For the reasons set out above, the Magistrate Judge RECOMMENDS that the District Judge

DENY Reginald Green’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Clerk’s
Doc. No. 1).
IV.

WARNINGS
The parties may file objections to this Report and Recommendation. A party filing

objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. U. S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–153 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is

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directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 1st day of June, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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