Schlager v. Stewart
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 20 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The Petitioner's 1 Section 2241 Petition is DENIED and DISMISSED WITH PREJUDICE and the respondent's 12 Motion to Dismiss or for su mmary judgment is GRANTED. This civil action is DISMISSED and STRICKEN from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 2/22/12. (c to pro se petitioner by cert mail)(cc) (Additional attachment(s) added on 2/22/2012: # 1 Certified Mail Return Receipt) (cc).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
IVAN C. SCHLAGER,
Civil Action No. 5:11CV118
TIMOTHY STEWART, Warden,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
Schlager, filed a petition for habeas corpus pursuant to 28 U.S.C.
wrongfully denied his admittance into the Residential Drug Abuse
Treatment Program (“RDAP”).2
On November 1, 2011, the respondent
filed a motion to dismiss or for summary judgment in which he
argues that the BOP staff appropriately used its discretionary
authority to determine that the petitioner is not eligible for the
contends that 18 U.S.C. § 3625 precludes judicial review of the
BOP’s substantive determination about the petitioner’s eligibility
to participate in the RDAP.
Finally, the respondent argues that
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1341 (9th ed. 2009).
The petitioner is currently an inmate at FCI-Morgantown
serving a term of imprisonment of 85 months.
projected release date is September 9, 2014.
participation. On November 22, 2011, the petitioner filed a reply,
in which he states that he is satisfied with his initial pleadings
and believes that no response to the respondent’s motion to dismiss
United States Magistrate Judge James E. Seibert issued a
report and recommendation on January 31, 2012, recommending that
the petitioner’s § 2241 petition be denied and dismissed with
prejudice. The magistrate judge advised the parties that, pursuant
to 28 U.S.C. § 636(b)(1)(C), any party may file written objections
to his proposed findings and recommendations on or before February
objections. For the reasons set forth below, this Court finds that
the report and recommendation of the magistrate judge should be
affirmed and adopted in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made. However, failure
to file objections to the magistrate judge’s proposed findings and
recommendation under the standards that the district court believes
are appropriate and, under these circumstances, the parties’ right
to de novo review is waived.
825 (E.D. Cal. 1979).
See Webb v. Califano, 468 F. Supp.
Because no objections were filed in this
case, this Court reviews the report and recommendation of the
magistrate judge for clear error.
In the report and recommendation, the magistrate judge first
provides an overview of the RDAP.
Next, the magistrate judge
addresses the respondent’s argument that 18 U.S.C. § 3625 precludes
petitioner’s eligibility to participate in the RDAP.
the magistrate judge concludes that any substantive decision by the
BOP to grant or deny the petitioner’s admittance into the RDAP is
not reviewable by this Court.
This Court agrees.
Section 706 of
the Administrative Procedure Act (“APA”), and its grant of judicial
review, does not apply to “any determination, decision, or order”
made under the RDAP statute.
18 U.S.C. § 3625; see Whitaker v.
Stansberry, No. 3:08cv662, 2009 WL 3762320, at *n.10 (E.D. Va. Nov.
9, 2009); Moore v. Driver, No. 1:07cv166, 2008 WL 4661478 (N.D. W.
Va. Oct. 21, 2008).
constitutional claims, finding both his due process claim and equal
protection claim to be without merit. Specifically, the magistrate
judge holds that the petitioner has no constitutional or inherent
right to participate in rehabilitative programs while incarcerated.
See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (stating that
Congress has given federal prison officials full discretion to
control conditions of confinement such as prisoner classification
and eligibility for rehabilitative programs). Also, with regard to
the petitioner’s equal protection claim, the magistrate judge found
that the petitioner fails to assert that any similarly situated
persons were treated differently than him, or that the alleged
unequal treatment was the result of intentional or purposeful
See Morrison v. Garraghty, 239 F.3d 648, 654 (4th
This Court finds no clear error in the conclusions of
the magistrate judge regarding the petitioner’s constitutional
interpretation of 18 U.S.C. § 3621 and concludes that the decision
of the BOP finding the petitioner ineligible for the RDAP and
subsequent one-year sentence reduction does not violate the terms
of the statute authorizing the RDAP.
As the magistrate judge
explains, this case hinges upon how the phrases “substance abuse
problem” and “eligible prisoner” are defined.
This Court agrees
that it is within the discretion of the BOP to determine which
prisoners have a substance abuse problem and are therefore eligible
for the RDAP.
For these reasons, the report and recommendation
must be affirmed.
Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the ruling of the magistrate judge is hereby ADOPTED and
AFFIRMED in its entirety.
Accordingly, for the reasons set forth
above, the petitioner’s § 2241 petition is DENIED and DISMISSED
WITH PREJUDICE and the respondent’s motion to dismiss or for
summary judgment is GRANTED.
It is ORDERED that this civil action
be DISMISSED and STRICKEN from the active docket of this Court.
Under Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985),
the petitioner’s failure to object to the magistrate judge’s
proposed findings and recommendation bars the petitioner from
appealing the judgment of this Court as to the matters addressed in
the magistrate judge’s report and recommendation.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is directed to enter judgment on this
February 22, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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