Clair v. Hendrix

Filing 28

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 26 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. It is further ORDERED that this case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/18/18. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 12/18/2018: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARVIN LEON CLAIR,
Petitioner,
v.

Civil Action No. 5:18CV20
(STAMP)

DEWAYNE HENDRIX,
Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

The pro se1 petitioner, Marvin Leon Clair, filed a Petition
for Habeas Corpus Under 28 U.S.C. § 2241 (“§ 2241”).

The action

was referred to United States Magistrate Judge James P. Mazzone for
initial review and report and recommendation pursuant to Local Rule
of Prisoner Litigation Procedure 2.
The

magistrate

judge

filed

a

report

and

recommendation

recommending that this matter be dismissed with prejudice. ECF No.
26 at 16.

The magistrate judge informed the parties that if they

objected to any portion of the report and recommendation, they were
required to file written objections within 14 days after being
served with copies of the report.

Id. at 16-17.

Neither party

filed objections.
1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

II.
The

pro

se

petitioner

Facts

is

currently

incarcerated

at

FCI

Morgantown, where he is serving a sentence imposed by the United
States District Court for the Eastern District of Virginia.
No. 1 at 1-2.

ECF

The petitioner filed a Petition for Habeas Corpus

Under 28 U.S.C. § 2241, in which he alleges that the Federal Bureau
of

Prisons

(“BOP”)

unlawfully,

arbitrarily

and

capriciously

expelled him from the second phase of residential drug abuse
(“RDAP”) treatment.

Id. at 5.

In the attached memorandum of law

in support of his petition, the petitioner argues that “[a]lthough
the treatment staff has discretion in the assessment of a program
participant’s progress . . . [t]he treatment staff must cite
unsatisfactory progress or inappropriate behaviors (i.e. plural or
multiple) that can not be resolved with intervention prior to
expulsion.”

ECF No. 1-1 at 4 (emphasis omitted).

The petitioner

states that “[t]he isolated incident . . . for which no incident
report nor formal warning was issued simply does not meet the
threshold for expulsion.”

Id. at 5 (emphasis omitted).

The

petitioner asserts that the Northern District of West Virginia has
“opined that [two] formal warnings was an adequate standard to
support

expulsion

in

the

follow-up

care

module.”

Id.

Specifically, the petitioner requests that the Court rescind his
discharge from the program and direct FCI Morgantown to place him
back in the follow-up portion of the RDAP, to be completed at FCI

2

Morgantown.

Id.

at

6.

The

petitioner

has

supplemental briefs in support of his petition.

also

filed

two

See ECF Nos. 4

and 7.
The respondent then filed a motion to dismiss or in the
alternative, a motion for summary judgment.

ECF No. 13.

In the

accompanying memorandum, the respondent argues that the BOP’s
decision to expel petitioner from the RDAP is not subject to
judicial review.

ECF No. 13-1 at 5-7.

Moreover, the respondent

argues that the petitioner’s claims are meritless because: (1)
inmates do not have a liberty interest in early release from a
valid sentence, and (2) the BOP has broad discretion to expel the
petitioner.

Id. at 8-12.

Lastly, the respondent notes that the

petitioner has been readmitted into the RDAP program at FCI
Morgantown, and has received all the relief he is entitled. Id. at
12-13.

In support of his motion to dismiss, the respondent

attaches a declaration by a BOP Psychology Treatment Programs
Coordinator at the Mid-Atlantic Regional Office, Christina Ganz,
Psy.D.

(“Dr.

Ganz”),

indicating

that

the

petitioner

did

not

actively participate in the program, and that he received formal
warnings of expulsion.

ECF No. 13-2 at 1-4.

The petitioner filed a response to the respondent’s motion to
dismiss, or in the alternative, motion for summary judgment.
No. 20.

ECF

The petitioner first argues that judicial review is

available when an agency acts outside its statutory limits or has

3

violated

the

Constitution,

and

that

since

the

petitioner

is

alleging the “BOP violated its own statute . . . review is
appropriate.”
arguments

Id. at 4-5.

that

the

In response to the respondent’s

petitioner’s

claims

are

meritless,

the

petitioner asserts that the program violated its standards. Id. at
5-6.

He also contends that the case is not moot even though he was

readmitted to the RDAP program at FCI Morgantown, since “[i]f the
[C]ourt

provides

immediately

the

placed

relief

back

in

requested,
follow-up

[p]etitioner

services,

where

will
he

be
was

wrongfully expelled, and will withdraw from the entry program.”
Id. at 6.

The petitioner further asserts that although he may not

have a liberty interest in early release, he has a right to have
his case heard in order to change allegedly improper action.

Id.

at 8.
The petitioner then filed a motion to strike Dr. Ganz’s
declaration.

ECF No. 19.

In the motion, the petitioner argues

that Dr. Ganz does not have personal knowledge to testify regarding
the matters stated in the declaration.

Id. at 2.

The respondent filed a response to the petitioner’s motion to
strike.
Dr.

ECF No. 21.

Ganz’s

In the response, the respondent asserts that

declaration

opinions, or inferences.

consists
Id. at 2.

of

facts,

not

speculation,

Specifically, the respondent

notes that in order to perform her duties, Dr. Ganz has access to
official records.

Id. at 2-3.

Moreover, the respondent alleges

4

that Dr. Ganz became personally involved in the petitioner’s case
while he was incarcerated in another part of her region.

Id. at 3.

The petitioner then filed a reply to the respondent’s response
to petitioner’s motion to strike.

ECF No. 22.

In the reply, the

petitioner asserts that Dr. Ganz’s contact with him “has nothing to
do with [his] claims in the instant case.”

Id. at 1.

The petitioner has also filed a motion to expedite.
24.

ECF No.

In that motion, the petitioner explains that “[h]is current

home confinement eligibility date is set by the [BOP] for 12/18/18.
However, if the Court rules in [his] favor and places him back into
RDAP follow-up care, he would be subject to immediate release.”
Id. at 2.
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
III.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.
file

any

objections

to

the

Because the petitioner did not

report

and

recommendation,

the

magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”
§ 636(b)(1)(A).

5

28 U.S.C.

IV.

Discussion

In his report and recommendation, the magistrate judge finds
that under 18 U.S.C. § 3621, enrollment in the RDAP, and receipt of
its benefits, is within the discretion of the BOP.

Id. at 11.

Moreover, the magistrate judge notes that the petitioner does not
argue a sufficient liberty interest affected by his expulsion to
support a due process claim.
finds

that

given

the

Id. at 14.

The magistrate judge also

petitioner’s

documented

history

of

non-compliance with program requirements, and his observed failure
to apply treatment concepts, the BOP’s actions “do[] not reach a
conscious shocking level of arbitrariness, justifying federal
habeas corpus relief.”

Id. at 15.

Lastly, the magistrate judge

notes that under 28 U.S.C. § 550.53(g)(1), “[i]nmates may be
removed from the program by the Drug Abuse Program Coordinator
because

of

disruptive

behavior

related

unsatisfactory progress in treatment.”

to

the

Id. at 16.

program

or

The magistrate

judge thus recommends that respondent’s motion to dismiss or, in
the

alternative,

for

summary

judgment

be

granted,

that

the

petitioner’s petition be dismissed with prejudice, and that the
petitioner’s motion to strike and motion to expedite be denied.
Id. at 16.

This Court finds no error in the determinations of the

magistrate judge and thus upholds his recommendation.

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V.

Conclusion

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 report and recommendation of the magistrate judge
(ECF No. 26) is hereby AFFIRMED and ADOPTED in its entirety.
It is further ORDERED that this case be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.

Because the petitioner has failed to

object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the pro se
petitioner by certified mail.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.

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DATED:

December 18, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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