Waters v. Ray

Filing 23

ORDER: the magistrate judges 18 report and recommendation is hereby ORDERED ADOPTED; Petitioners 22 response/objections are OVERRULED; the 12 Motion to Dismiss, or in the Alternative, for Summary Judgment is GRANTED and the 1 Petition i s DENIED and DISMISSED WITHOUT PREJUDICE; and the 17 Motion to Hold/Continue Any and All Mail is DENIED AS MOOT. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 3/26/2024. (copy to pro se petitioner via cm,rrr) (nmm) (Additional attachment(s) added on 3/26/2024: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
GREGORY A. WATERS,
Petitioner,
v.

CIVIL ACTION No. 5:23-CV-330
Judge Bailey

MRS. H. RAY,
Respondent.
ORDER
The above-styled matter came before this Court for consideration of the Report and
Recommendation of United States Magistrate Judge Mazzone [Doc. 18]. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Mazzone for submission
of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his
R&R on February 13, 2024, wherein he recommends that the Petition be denied, the
Motion to Dismiss, or in the Alternative, for Summary Judgment be granted, and the Motion
to Hold/Continue Any and All Mail be denied as moot. For the reasons that follow, this
Court will adopt the R&R.
I. BACKGROUND1 & STANDARD OF REVIEW
Pursuant to 28 U.S.C.

§

636(b)(1)(c), this Court is required to make a de novo

review of those portions of the magistrate judge’s findings to which objection is made.

This Court fully adopts and incorporates herein the “Background” section of the
R&R. See [Doc. 18 at 2—3].
1

1

However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Am, 474 U.S. 140,
150 (1985). Nor is this Court required to conduct a de novo review when the party makes
only “general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
In addition, failure to file timely objections constitutes a waiver of de novo review and
the right to appeal this Court’s Order. 28 U.S.C.

§ 636(b)(1); Snyder v. Ridenour, 889

F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94(4th Cir.
1984). Pro se filings must be liberally construed and held to a less stringent standard than
those drafted by licensed attorneys, however, courts are not required to create objections
where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)
days of receipt, pursuant to 28 U.S.C.

§ 636(b)(1) and Rule 72(b)(2) of the Federal Rules

of Civil Procedure. On February 15, 2024, service of the R&R was accepted at FCI
Hazelton. See [Doc. 19]. The Court notes that petitioner had informed the Court that he
anticipated he would soon be transferred to a new facility, and sought to hold his mail.
[Doc. 17]. The Court further notes that according to the Bureau of Prisons’ website,
petitioner is now located at FCI Petersburg Medium in Hopewell, Virginia. Thus, this Court
directed the Clerk to send petitioner a copy of the R&R to his new address. See [Doc. 201.

The R&R was delivered on March 14, 2024, to petitioner’s new address. See
[Doc. 20-1]. Petitioner timely filed his response/objections to R&R [Doc. 22] on March 25,
2024. Accordingly, this Court will review the portions of the R&R to which objection was
filed under a de novo standard of review. The remainder of the R&R will be reviewed for
clear error.
II. DISCUSSION
In the R&R, Magistrate Judge Mazzone found (1) petitioner’s claims are subject to
dismissal for his failure to exhaust administrative remedies [Doc. 18 at 6—9]; (2) while
petitioner is eligible to earn time credits under the First Step Act, he is not eligible to have
them applied toward either his release date, transfer to earlier placement in pre-release
custody, or supervised release because his score is not “low” or “minimum,” and because
there is no indication that he has successfully petitioned the warden for approval to apply
earned time credits to prerelease custody or supervised release, or that the warden has
exercised his discretion to allow petitioner to transfer to prerelease custody [id. at 9—13];
(3) petitioner’s requests for Court-ordered RDAP placement and/or transfer to another
facility are not proper subjects for a

§ 2241 petition [id. at 13—14]; and (4) petitioner’s

complaint of cruel and inhumane treatment is not cognizable in a

§ 2241 petition.

Petitioner first notes that the “papers didn’t come to [him].” See [Doc. 22 at 1].
Petitioner next notes how he has “already explained [his] how’s why’s and what [he]
is looking for in return and that is the courts Judge to make a decision that can be made
from Him/Her on this matter.” See [id. at 1—2].

Petitioner then goes on and provides his understanding of the First Step Act, states
how he is “doing the Right things to be reintegrated into society to be a better man” and
asserts he “brought up 3 different cases that went to courts without the administrative
remedies.” See [id. at 2—5].
Lastly, petitioner states that he “object[s] to EVERYTHING THE Government is
saying..

.

.“

See [id. at 6].

First, petitioner argues he did not get the “papers.” However, it is clear he received
the R&R, certified mail on March 14, 2024.
Next, petitioner states he brought up 3 cases that went to courts without the
administrative remedies. In the R&R, Magistrate Judge Mazzone states after a discussion
and analysis of the law surrounding exhaustion of administrative remedies: “Nonetheless,
even if petitioner’s claim could survive his failure to exhaust administrative remedies, his
petition is subject to dismissal.” See [Doc. 18 at 9 (emphasis added)]. Magistrate Judge
Mazzone did not conclude the R&R after determining petitioner failed to exhaust his
administrative remedies. Magistrate Judge Mazzone found that even if petitioner’s claims
could survive his failure to exhaust administrative remedies, he is not eligible to have the
First Step Act time credits applied toward either his release date, transfer to earlier
placement in pre-release custody, or supervised release. Thus, petitioner’s assertion that
his case should continue because the 3 cases he cited did lacks merit because Magistrate
Judge Mazzone dismissed his petition on other grounds as well.
Lastly, petitioner states that he objects to “EVERYTHING.”

“When a party does make objections, but these objections are so general or
conclusory that they fail to direct the district court to any specific error by the magistrate
judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F.Supp.3d 723, 730
(S.D. W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). “When
only a

general

objection

is

made to

a

portion

of a

magistrate judge’s

report-recommendation, the Court subjects that portion of the report-recommendation to
only a clear error review.” Williams v. New York State Div. ofParole, 2012 WL 2873569,
at *2 (N.D.N.Y. July 12, 2012).
A party waives any objection to an R&R that lacks adequate specificity. See Mario
v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that a party’s
objections to the magistrate judge’s R&R were not specific enough to preserve the claim
for review).

Bare statements “devoid of any reference to specific findings or

recommendation.

.

.

and unsupported by legal authority, [are] not sufficient.” Mario, 313

F.3d at 766. Pursuant to the Federal Rules of Civil Procedure and this Court’s Local Rules,
“referring the courtto previouslyfiled papers orarguments does not constitute an adequate
objection.” Id.; see also Fed. R. Civ. P. 72(b); LR PL P 12.
Petitioner does not object to any specific error made by Magistrate Judge Mazzone.
As held by Magistrate Judge Mazzone, petitioner overlooks the fact that there is a clear
distinction between the ability to earn time credits and the application of those credits to
affect one’s release date, prerelease custody or supervised release. The application of
time credits to prerelease custody or supervised release is governed by 18 U.S.C.

§ 3624(g). Section 3624(g)(1) sets forth the criteria for eligibility:

(1) Eligible prisoners.--This subsection applies in the case of a prisoner (as
such term is defined in section 3635) who-(A) has earned time credits under the risk and needs assessment
system developed under subchapter D (referred to in this subsection
as the “System”) in an amount that is equal to the remainder of the
prisoner’s imposed term of imprisonment;
(B) has shown through the periodic risk reassessments a
demonstrated recidivism risk reduction or has maintained a minimum
or low recidivism risk, during the prisoner’s term of imprisonment;
(C) has had the remainder of the prisoner’s imposed term of
imprisonment computed under applicable law; and
(D)(i) in the case of a prisoner being placed in prerelease custody, the
prisoner—
(I) has been determined under the System to be a minimum or
low risk to recidivate pursuant to the last 2 reassessments of
the prisoner; or
(II) has had a petition to be transferred to prerelease custody
or supervised release approved by the warden of the prison,
after the warden’s determination that—
(aa) the prisoner would not be a danger to society if
transferred to prerelease custody or supervised release;

(bb) the prisoner has made a good faith effort to lower
their recidivism risk through participation in recidivism
reduction programs or productive activities; and
(cc) the prisoner is unlikely to recidivate; or
(ii) in the case of a prisoner being placed in supervised release, the
prisoner has been determined under the System to be a minimum or
low risk to recidivate pursuant to the last reassessment of the
prisoner.
18 U.S.C.

§ 3632(g)(1). A prisoner, therefore, may be eligible under 18 U.S.C. § 3632(d)

to earn and receive time credits but not be eligible to have those credits applied under 18
U.S.C.

§ 3624(g).
The statute does, however, contain a safety valve provision for inmates who cannot

meet this recidivism threshold, and which provides that the warden may exercise discretion
to apply a prisoner’s earned credits toward prerelease custody or supervised release, upon
determining that the prisoner (1) “would not be a danger to society if transferred to
prerelease custody or supervised release,” (2) “has made a good faith effort to lower their
recidivism risk through participation in recidivism reduction programs or productive
activities;” and (3) “is unlikely to recidivate.” 18 U.S.C.
C.F.R.

§ 3624(g)(1)(D)(i)(ll)(aa-cc); 28

§ 523.44(c)(2). This type of request is initiated by submitting a BP-A0148, Inmate

Request to Staff, during his or her regularly scheduled Program Review. BOP PS 5410.01:
First Step Act of 2018

—

Time Credits: Procedures for Implementation of 18 U.S.C.

§

3632(d)(4), dated November 18, 2022, at Section 10, p.16.
Thus, a prisoner wishing to have earned time credits applied toward placement in
7

prerelease custody or supervised release under the First Step Act must either: (1) be
determined to be a MINIMUM or LOW risk of recidivism for the last two reassessments,
or (2) have successfully petitioned the warden for approval. 18 U.S.C.

§ 3624(g).

Regardless of what petitioner has completed or how many “right things” he has
done, the petitioner’s risk score is medium, and it has remained a medium over the past
four times that he has been assessed between December 2022 and October 2023.
[Docs. 12-6; 12-8]. Because petitioner’s score is not “low~’ or “minimum,” and because
there is no indication that he has successfully petitioned the warden for approval to apply
earned time credits to prerelease custody or supervised release, or that the warden has
exercised his discretion to allow petitioner to transfer to prerelease custody, it thus plainly
appears on the Petition that he has failed to state a claim.
III. CONCLUSION
Aside from the arguments addressed herein, a de novo review of the record
indicates that the magistrate judge’s report accurately summarizes this case and the
applicable law. Accordingly, the magistrate judge’s report and recommendation [Doc. 18]
is hereby ORDERED ADOPTED forthe reasons more fully stated in the magistrate judge’s
report. Petitioner’s response/objections [Doc. 22] are OVERRULED.

The Motion to

Dismiss, or in the Alternative, for Summary Judgment [Doc. 12] is GRANTED and the
Petition [Doc. 1] is DENIED and DISMISSED WITHOUT PREJUDICE. The Motion to
Hold/Continue Any and All Mail [Doc. 17] is DENIED AS MOOT.
This Court further DIRECTS the Clerk to enter judgment in favor of the respondent
and to STRIKE this case from the active docket of this Court.

It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: March 26, 2024.

~AA~

JO
“ESTON BAILEY
UNITED STATES DISTRICT JUDGE