Umburger v. Craig
Filing
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MEMORANDUM OPINION AND ORDER: The court ACCEPTS the 6 PROPOSED FINDINGS AND RECOMMENDATION of Magistrate Judge VanDervort; DISMISSES plaintiff's 1 application under 28 U.S.C. Section 2241 and directs the Clerk to remove this action from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 9/28/2011. (cc: Plaintiff, Pro Se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
CHRISTOPHER UMBERGER,
Plaintiff,
v.
CIVIL ACTION NO. 1:08-0851
T.R. CRAIG, Warden,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
findings and recommendations regarding disposition pursuant to 28
U.S.C.A. § 636(b)(1)(B).
Magistrate Judge VanDervort submitted to
the court his Findings and Recommendation on December 16, 2008, in
which he recommended that the District Court dismiss plaintiff’s
application under 28 U.S.C. § 2241, and remove this matter from
the court’s docket.
In accordance with the provisions of 28 U.S.C.A. § 636(b)
in effect at the time, the parties were allotted ten days, plus
three mailing days, in which to file any objections to Magistrate
Judge VanDervort’s Findings and Recommendation.
The failure of
any party to file such objections constitutes a waiver of such
party's right to a de novo review by this court.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).
Snyder v.
On December 29, 2008, plaintiff filed objections to the
Proposed Findings and Recommendation.
With respect to those
objections, the court has conducted a de novo review.
I.
Background
On September 13, 2000, Umberger was charged in a threecount indictment with knowingly and intentionally distributing
heroin, in violation of 21 U.S.C. § 841(a)(1).
United States v.
Umburger, Criminal No. 1:00-0204, Document No. 1.
On May 21,
2001, he entered a plea of guilty to Count One of the Indictment
pursuant to a written plea agreement with the Unites States.
id., Document Nos. 27 and 30.
See
At the sentencing hearing, held on
August 20, 2001, the court granted the United States’ Motion for a
Downward Departure based on Umberger’s substantial assistance and
he was sentenced to term of imprisonment of 120 months and a
three-year term of supervised release.
and 37.
See id., Document Nos. 36
The court also recommended that defendant receive
treatment for narcotics addition while incarcerated.
II.
A.
See id.
Analysis
Eligibility for Early Release Under 18 U.S.C. § 3621(e)
Umberger’s first objection to the PF&R concerns Magistrate
Judge VanDervort’s conclusion that the Bureau of Prisons (“BOP”)
was within its discretion in finding Umberger ineligible for early
release upon completion of the BOP’s Residential Drug Abuse
Program (“RDAP”).
As an exhibit to his Application, Petitioner
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submitted a copy of a “Drug Abuse Program Notice to Inmate” dated
January 23, 2007, indicating that he qualified to participate in
the RDAP but was determined to be provisionally ineligible for
early release because he had a “prior conviction for unlawful
wounding (shot deputy in the back).”
According to Umberger’s Pre-
Sentence Investigation Report (“PSR”), in 1986, he was convicted
in the Circuit Court of Mercer County, West Virginia, of unlawful
wounding and kidnaping for shooting a police officer in the back.
18 U.S.C. § 3621(b) authorizes the BOP to implement drug
abuse treatment programs for its prisoners:
“The Bureau shall
make available appropriate substance abuse treatment for each
prisoner the Bureau determines has a treatable condition of
substance addiction or abuse.”
To effectuate this mandate, the
BOP is required to ensure that all eligible prisoners “with a
substance abuse problem have the opportunity to participate in
appropriate substance abuse treatment . . . [and the BOP shall]
provide residential substance abuse treatment.”
18 U.S.C. §
3621(e)(1).
As an incentive for successful completion of RDAP, “[t]he
period a prisoner convicted of a nonviolent offense remains in
custody after successfully completing a treatment program may be
reduced by the Bureau of Prisons, but such reduction may not be
more than one year from the term the prisoner must otherwise
serve.”
18 U.S.C. § 3621(e)(2)(B)(emphasis added).
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The statute
makes clear that the decision to grant early release lies within
the discretion of the Bureau of Prisons.
U.S. 230, 240 (2001).
See Lopez v. Davis, 531
In the exercise of this discretion, the BOP
has adopted regulations respecting the early release of prisoners
who successfully complete RDAP.
28 C.F.R. § 550.58 (a)(1)(iv) provides:
(1) As an exercise of discretion vested in the
Director of the Federal Bureau of Prisons, the
following categories of inmates are not eligible for
early release:
* * *
(iv) Inmates who have a prior felony or misdemeanor
conviction for homicide, forcible rape, robbery, or
aggravated assault, or child sexual abuse offenses.
The Supreme Court has upheld this regulation, finding it a
permissible exercise of the BOP’s discretion.
Lopez, 531 U.S. at
244 (“[T]he Bureau may categorically exclude prisoners based on
their preconviction conduct . . . .”).
Umberger contends that, because his prior conviction was
for unlawful wounding and not for aggravated assault, he is
eligible for early release.
Umberger’s argument misses the mark.
As the Court explained in Lopez:
In the Bureau's view, § 3621(e)(2)(B) establishes
two prerequisites for sentence reduction:
conviction of a nonviolent offense and successful
completion of drug treatment. If those
prerequisites are met, the Bureau “may,” but also
may not, grant early release. The BOP opposes
Lopez's argument that Congress barred the Bureau
from imposing limitations categorically or on the
basis of preconviction conduct. According to the
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Bureau, Congress simply “did not address how the
Bureau should exercise its discretion within the
class of inmates who satisfy the statutory
prerequisites for early release.” Because
Congress left the question unaddressed, the Bureau
maintains, the agency may exclude inmates either
categorically or on a case-by-case basis, subject
of course to its obligation to interpret the
statute reasonably, in a manner that is not
arbitrary or capricious, see 5 U.S.C. § 706(2)(A).
* * *
We agree with the Bureau's position.
* * *
When an eligible prisoner successfully completes
drug treatment, the Bureau thus has the authority,
but not the duty, both to alter the prisoner's
conditions of confinement and to reduce his term
of imprisonment.
Id. at 239-41 (internal citations omitted).
The BOP was entirely
within its discretion in finding that the circumstances
surrounding Umberger’s 1986 conviction - shooting a police
officer in the back and then kidnaping him - rendered him
ineligible for early release.
See id. at 242 (“[T]he Bureau need
not blind itself to preconviction conduct that the agency
reasonably views as jeopardizing life and limb.
By denying
eligibility to violent offenders, the statute manifests
congressional concern for preconviction behavior-and for the very
conduct leading to conviction.
to these factors as well.”).
The Bureau may reasonably attend
Based on the foregoing, Umberger’s
objection is OVERRULED.
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B.
Loss of Good Time Credit.
In his Application, Umberger alleges that “Bureau of
Prisons illegally took earned good time without proper hearing or
constitutional guarantees such as right to call witnesses,
cross-examine witnesses or appeal findings.”
Application Under
28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in State
or Federal Custody, Doc. # 1, at p. 7.
He did not explain the
circumstances which resulted in his alleged loss of good time
credits or the amount of credit lost.
In his PF&R, Magistrate Judge VanDervort found that
Umberger’s failure to do so rendered his Application subject to
dismissal because it did not contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.”
Proposed Findings and Recommendation at 6-7.
However, in
recognition of the mandate that where a pro se complaint can be
remedied by amendment such amendment should be allowed, see
Denton v. Hernandez, 504 U.S. 25, 34 (1992), the PF&R suggested
that Umberger amend his Application to “state how much good time
credit he has lost and the factual and procedural circumstances
which resulted in his loss of good time credit.”
Id. at 7.
Rather than addressing any of the deficiencies noted in
the PF&R, Umberger objected as follows:
Court after [court] have ruled that even inmates
have the right to cross-examine witnesses, have
hearings recorded, a fair and impartial hearing
officer, a right to appeal. This [sic] are basic
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rights enjoyed by all state and federal prisoner’s
[sic]. I gave a short and plain statement. I was
charged improperly, not allowed to cross-examine
or even face my accuser, found guilty with no
evidence as no witnesses appeared by a hearing
officer that finds 100% guilty and denied my right
to appeal. Short and plain. I do state a claim
for which the government can grant relief. Grant
me a hearing and Petitioner will subpoena records,
call witnesses and prove the allegations.
Objections at p. 1.
“[A] complaint must contain sufficient factual matter,
accepted as true, to `state a claim to relief that is plausible
on its face.’”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
A plaintiff must plead factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.
See id.
As the Court held in Twombly, 550 U.S. 544, 127
S.Ct. 1955, 167 L.Ed.2d 929, the pleading standard
Rule 8 announces does not require “detailed
factual allegations,” but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me
accusation. Id., at 555, 127 S.Ct. 1955 (citing
Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct.
2932, 92 L.Ed. 2d 209 (1986)). A pleading that
offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action
will not do.” 550 U.S., at 555, 127 S.Ct. 1955.
Nor does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual
enhancement.” Id., at 557, 127 S.Ct. 1955.
Id.
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Umberger has failed to plead sufficient factual matter to
show that he is entitled to relief.
Accordingly, his objection
is OVERRULED.
C.
Alleged Lack of Medical Care
Umberger’s last objection concerns Magistrate Judge
VanDervort’s conclusion that plaintiff’s claim for inadequate
medical care is beyond the scope of 28 U.S.C. § 2241.
A § 2241
petition is used to attack the manner in which a sentence is
executed, and is appropriate where a prisoner challenges the fact
or length of his confinement, but generally not the conditions of
that confinement.
499-500 (1973).
See Preiser v. Rodriguez, 411 U.S. 474,
Therefore, Umberger’s claim is beyond the scope
of Section 2241 and, instead, falls under Bivens v. Six Unknown
Named Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971) and/or the Federal Tort Claims Act [FTCA], 28 U.S.C. §§
Accordingly, his objection to the
1346(b) and 2671, et seq.
finding that § 2241 is not the proper avenue for his claims is
OVERRULED.
III.
Conclusion
Based on the foregoing, the court accepts Magistrate
Judge VanDervort’s findings and recommendation.
The court
DISMISSES plaintiff’s application under 28 U.S.C. § 2241 and
directs the Clerk to remove this case from the court’s active
docket.
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Additionally, the court has considered whether to grant a
certificate of appealability.
See 28 U.S.C. § 2253(c).
A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).
The court concludes that the governing
standard is not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is directed to forward a copy of this
Memorandum Opinion and Order to plaintiff, pro se, and counsel of
record.
IT IS SO ORDERED this 28th day of September, 2011.
ENTER:
David A. Faber
Senior United States District Judge
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