Johnson v. Saad

Filing 25

MEMORANDUM OPINION AND ORDER: The court OVERRULES all of petitioner's objections; ADOPTS the 20 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn; DENIES petitioner's 3 Petition for Writ of Habeas Corpus (2241); DENIES as moot respondent's 24 Motion to Dismiss; DISMISSES this action and directs the Clerk to remove this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 9/25/2019. (cc: counsel of record and any unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
CARMEN JOHNSON
Petitioner,
v.

CIVIL ACTION NO. 1:18-00444

WARDEN SAAD,
Respondent.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

Magistrate Judge Aboulhosn submitted to

the court his Proposed Findings and Recommendation (“PF&R”) on
August 21, 2018, in which he recommended that the court deny
petitioner’s petition for writ of habeas corpus, and remove this
case from the court’s active docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
petitioner was allotted fourteen days and three mailing days in
which to file any objections to Magistrate Judge Aboulhosn’s
Findings and Recommendation.

The failure of any party to file

such objections within the time allowed 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 September 6, 2018,

petitioner, acting pro se, filed objections to the PF&R.
ECF No. 22.

See

As such, her objections were timely.

Liberally construing petitioner’s objections, the court
finds that petitioner’s motion sets forth three primary
objections.

First, petitioner objects to the PF&R’s conclusion

that she failed to exhaust her administrative remedies.
at ¶ 1.

See id.

Second, petitioner objects that she informed respondent

as to her unique pre-release placement preferences nineteen
months before her good time date, but that respondent did not
incorporate her personal circumstances and preferences in its
final pre-release placement decision.

See id. at ¶ 2.

Third,

petitioner objects that respondent did not properly consider
petitioner’s mental health and personal concerns related to reentry, as respondent did not complete a Mental Health Re-Entry
Plan or Residential Re-Entry Plan.
I.

See id.

Standard of Review of Pro Se Objections
Pursuant to Fed. R. Civ. P. 72(b), the court must “make a

de novo determination upon the record . . . of any portion of
the magistrate judge's disposition to which specific written
objection has been made.”

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.

See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).
2

Furthermore, de novo review is not required and unnecessary
“when a party makes 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, 47–48 (4th Cir. 1982); see also United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for
appeal an issue in a magistrate judge's report, a party must
object to the finding or recommendation on that issue with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection.”); McPherson v.
Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009) (“[F]ailure
to file a specific objection constitutes a waiver of the right
to de novo review.”).
“A document filed pro se is ‘to be liberally construed.’ ”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).

Specifically as to objections

to a PF&R, courts are “under an obligation to read a pro se
litigant's objections broadly rather than narrowly.”

Beck v.

Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2
(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).
However, objections that are “unresponsive to the reasoning
contained in the PF&R” are irrelevant and must be overruled.
Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W. Va. July 7,
2009) (citing Orpiano, 687 F.2d at 47).
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II.

Analysis
A.

Objection 1 – Exhaustion of Administrative Remedies

Petitioner objects to the PF&R’s finding that she failed to
exhaust her administrative remedies.
petitioner’s favor on this issue.

However, the PF&R found in

See ECF No. 20 (“[T]he

undersigned cannot conclude that Petitioner failed to exhaust
her administrative remedies.”).

Petitioner’s objections related

to the PF&R’s findings as to her administrative remedies are
therefore unresponsive to the PF&R and are irrelevant, see
Kesterson, 2009 WL at *1, and must be OVERRULED.
B.

Objection 2 – Failure to Consider Personal
Circumstances

Petitioner’s second objection is that respondent did not
incorporate her personal circumstances and preferences in its
final pre-release placement decision as required by the Second
Chance Act.

See ECF No. 22, at ¶ 2.

The Bureau of Prisons

(“BOP”) has the authority to designate a prisoner's place of
imprisonment, which includes authority to make all pre-release
placement decisions.

See 18 U.S.C. § 3621.

Section 3621(b)

requires the BOP to consider five factors when determining a
prisoner's placement: (1) the resources of the facility
contemplated; (2) the nature and circumstances of the offense;
(3) the history and characteristic of the prisoner; (4) any
statement by the court that imposed the sentence; and (5) any
4

pertinent policy statement issued by the Sentencing Commission
pursuant to Section 994(a)(2) and Title 28.

Id. § 3621(b).

The Second Chance Act permits the BOP to allow a prisoner
to serve a portion of his or her sentence in the community, such
as in home confinement, placement in a community correctional
facility, or in a Residential Re-Entry Center (“RRC”).
§ 3624(c).

See id.

The Second Chance Act also requires that the BOP

issue new regulations designed to ensure that such pre-release
placements are “(A) conducted in a manner consistent with
Section 3621(b) of this title; (B) determined on an individual
basis; and (C) of sufficient duration to provide the greatest
likelihood of successful reintegration into the community.”

Id.

§ 3624(c)(6).
Therefore, together, Sections 3621(b) and 3624(c) require
the BOP to make pre-release decisions on an individualized basis
by considering each of the five factors with respect to the
individual prisoner, and with the end of providing the greatest
likelihood of successful reintegration of the prisoner into the
community.

Once a court is satisfied that the BOP considered

all five factors on an individualized basis, the BOP’s placement
decision is given “considerable discretion.”

Byrd v. Moore, 252

F. Supp. 2d 293, 300 (W.D.N.C. 2003) (“Section 3621 endows the
BoP with considerable discretion to designate prisoners anywhere
the BoP decides is appropriate, considering only the five
5

factors listed in § 3621.”).
Here, the record reflects that petitioner was properly
considered for pre-release placement on an individualized basis,
considering each of the five factors.

On August 9, 2017,

petitioner’s BOP Unit Team prepared an Individualized Re-entry
Plan, where they recommended petitioner for a 151-180 day RRC
placement.

See ECF No. 13, Exh. 1 Attachment B at 3.

Considering all five Section 3621(b) factors, respectively, the
BOP determined that (1)“there are available community
corrections in the release area;” (2) “the nature and
circumstances of the offense are eligible for community
corrections;” (3) petitioner has “established residence and
community ties;” (4) “[t]here were no statements [from] the
sentencing court regarding RRC placement and there was no
pertinent policy applied by the Sentencing Commission;” and (5)
petitioner “is 50 years old and has a stable release plan and
community.”

Id.

Petitioner’s objection that respondent did not

give her an individualized assessment as required by the Second
Chance Act is not supported by evidence.

This court finds that

the BOP appropriately and individually considered petitioner for
pre-release placement under Sections 3621(b) and 3624(c), and
thus petitioner’s Objection 2 is OVERRULED.
C. Objection 3 – Failure to Create Mental Health Re-Entry
Plan and Residential Re-Entry Plan
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Petitioner’s third objection is that respondent did not
properly consider petitioner’s mental health and personal
concerns related to re-entry, as respondent did not complete a
Mental Health Re-Entry Plan or Residential Re-Entry Plan.
ECF No. 22, at ¶ 2.

See

Petitioner cites to BOP Policy 5200.05,

“Management of Inmates With Disabilities,” as providing the
basis for respondent’s duty to provide such plans to her.

While

Policy 5200.05 does contain a subsection containing BOP policies
regarding disabled prisoners’ re-entry needs, Policy 5200.05
contains no provisions regarding any re-entry plan that needs to
be created.

See Management of Inmates With Disabilities, DEPT.

JUSTICE FEDERAL BUREAU

OF

OF

PRISONS POLICY 5200.05 (2017),

https://www.bop.gov/policy/progstat/5200_005.pdf.

Therefore

Magistrate Judge Aboulhosn’s recommendation to dismiss
petitioner’s claims is supported by substantial evidence, and
petitioner’s Objection 3 is OVERRULED.
Moreover, to the extent that petitioner is asserting a
constitutionally protected interest in either her pre-release
placement, the duration of her pre-release placement, or in her
receipt of a Mental Health Re-Entry Plan or Residential Re-Entry
Plan, the court finds that petitioner does not possess any such
interest.

To establish a due process claim, “a plaintiff must

prove that he possessed a protected liberty or property interest
and that he was deprived of that interest without being afforded
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the process to which he was constitutionally entitled.”
v. Bostick, 760 F. Supp. 524, 528 (D. Md. 1991).

Jackson

Petitioner has

not stated a viable due process claim because she has no
protected liberty interest in a particular pre-release placement
or duration of placement, or in having a Mental Health Re-Entry
Plan or Residential Re-Entry Plan created for her.

The Fourth

Circuit has specifically stated that “[t]he federal constitution
itself vests no liberty interest in inmates retaining or
receiving any particular security or custody status ‘[a]s long
as the [challenged] conditions or degree of confinement . . . is
within the sentence imposed . . . and is not otherwise violative
of the Constitution.’”

Slezak v. Evatt, 21 F.3d 590, 594 (4th

Cir. 1994) (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)).
Neither Section 3621(b) nor Section 3624(c) contain
explicit mandatory language or standards limiting the BOP's
discretion, which may have given rise to a protected liberty
interest in a particular security classification.

Section

3621(b) clearly vests the BOP with broad discretionary authority
as to prisoners' placement and classification while
incarcerated.

See 18 U.S.C. § 3621; see also Jaworski v.

Gutierrez, 509 F. Supp. 2d 573, 584 (N.D.W. Va. 2007) (“the BOP
[has] the discretion to determine which inmates may participate
in the BOP's pre-release programs”) (citing Lopez v. Davis, 531
U.S. 230, 235-38 (2001)).

The language of Section 3621(b)
8

stating that the “Bureau may designate any available penal or
correctional facility that meets minimum standards of health and
habitability . . . that the Bureau determines to be appropriate
and suitable,” is clearly permissive; the statute does not
mandate that the BOP place a prisoner in a certain facility.

18

U.S.C. § 3621(b); see also Pennavaria v. Gutierrez, 2008 WL
619197, *9 (N.D.W. Va. Mar. 4, 2008) (stating that federal
prisoners do not have a protected liberty interest in being
placed on home confinement, and the BOP has complete and
absolute discretion regarding where a prisoner is to be held in
pre-release confinement).

As a Mental Health Re-Entry Plan or a

Residential Re-Entry Plan relate to a prisoner’s placement,
these plans also create no liberty interest of which petitioner
was deprived.

Additionally, BOP policies that do not place

substantive limitations on official discretion do not create
constitutionally protected liberty interests.

See, e.g., Kotz

v. Lappin, 515 F. Supp. 2d 143, 150 (D.D.C. 2007) (“Internal
documents as part of prison administration have been found not
to create a protected liberty interest.”); see also Ewell v.
Murray, 11 F.3d 482, 488 (“inmates do not have a protected
liberty interest in the [BOP] procedures themselves”).
Therefore, even if petitioner were entitled to a Mental Health
Re-Entry Plan or a Residential Re-Entry Plan under BOP Policy
5200.05, the fact the petitioner did not receive either plan
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does not violate due process or entitle her to relief under
Section 2241.
D. Respondent’s Motion to Dismiss for Mootness
Respondent filed a motion to dismiss this case as moot
because petitioner satisfied her sentence and was released from
custody on May 14, 2019.

See ECF No. 24, Exh. 1 Attachment A.

To fairly consider petitioner’s objections which were timely
filed before her release, the court has reviewed the record, the
Magistrate’s findings and recommendations, and petitioner’s
objections.

The court rules that all of petitioner’s objections

are OVERRULED, and accordingly, DENIES petitioner’s motion under
28 U.S.C. § 2241 and DISMISSES this case.

As the case is

dismissed on the merits, respondent’s motion is DENIED as moot.
III. Conclusion
The court adopts the Findings and Recommendation of
Magistrate Judge Aboulhosn as follows:
1.

Petitioner’s petition for writ of habeas corpus under
28 U.S.C. § 2241 is DENIED;

2.

This action is DISMISSED; and

3.

The Clerk is directed to remove this case from the
court’s active docket.

The court also DENIES respondent’s motion to dismiss as moot.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).
10

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 further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and
unrepresented parties.
IT IS SO ORDERED this 25th day of September, 2019.
ENTER:
David A. Faber
Senior United States District Judge

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