Owens v. Ziegler
Filing
14
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATION: Based on the findings herein, the Court does hereby ORDER that the Magistrate Judge's 11 Proposed Findings and Recommendation be ADOPTED. The court ORDERS that Petit ioner's 1 Application Under 28 U.S.C. Section 2241 for Writ of Habeas Corpus By a Person in State or Federal Custody be DISMISSED and Petitioner's 10 Motion for Preliminary Injunction and Temporary Restraining Order be DENIED. Finally, the Court ORDERS that this matter be removed from the docket. Signed by Judge Irene C. Berger on 8/31/2012. (cc: attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
CARROL OWENS,
Petitioner,
v.
CIVIL ACTION NO. 5:11-cv-00864
JOEL ZIEGLER,
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING PROPOSED FINDINGS AND RECOMMENDATION
The Court has reviewed Petitioner’s Application Under 28 U.S.C. § 2241 for Writ of
Habeas Corpus by a Person in State or Federal Custody (Document 1) filed on November 7, 2011,
wherein Petitioner argues that the Bureau of Prisons (“BOP”) is improperly denying him a
sentence reduction pursuant to 18 U.S.C. § 3621. By Standing Order (Document 3) entered on
November 7, 2011, this action was referred to the Honorable R. Clarke VanDervort, United States
Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation
for disposition, pursuant to 28 U.S.C. § 636. On August 9, 2012, Magistrate Judge VanDervort
submitted his Proposed Findings and Recommendations (“PF&R”) (Document 13), wherein it is
recommended that the Court dismiss Petitioner’s Application under 28 U.S.C. § 2241 for Writ of
Habeas Corpus, deny Petitioner’s Motion for Preliminary Injunction and Temporary Restraining
Order (Document 10) and remove this matter from the Court’s docket. On August 24, 2012,
Petitioner timely filed his objections to the PF&R.
I.
RELEVANT FACTS AND PROCEDURAL HISTORY
While incarcerated at FCI-Beckley, Petitioner was enrolled in the Residential Drug Abuse
Program (“RDAP”). On October 6, 2011, Petitioner alleges he was informed that the History
Channel would no longer be available on the educational television in the RDAP community
because “one black inmate complained that the History Channel showed nothing but racist
propaganda.” (Document 1 at 2.)
On October 12, 2011, Petitioner alleges he tried to
diplomatically resolve this issue by filing a complaint with his Drug Treatment Specialist, William
Carnell, but then Mr. Carnell instructed his “Inmate Hit Team” to deal with Petitioner. (Id. at 4-5.)
On October 17, 2011, Petitioner filed a B-9 grievance alleging Mr. Carnell retaliated against him.
(Id.) The following day, Petitioner alleges he was kicked out of the RDAP program. (Id.)
Petitioner argues he has been denied due process by Carnell’s actions because the BOP is required
to provide him drug and alcohol abuse treatment as ordered by his sentencing judge. (Id. at 5.)
Further, Petitioner alleges Carnell violated 28 C.F.R. § 550.53(g) by removing Petitioner from
RDAP without giving him a formal warning. (Id.) Petitioner alleges he was “denied the liberty
interest in the incentive time off of his sentence for the completion of RDAP without due process
in violation of the 5th Amendment.” (Id.) Petitioner acknowledges he failed to exhaust his
administrative remedies, but argues he should be excused because he would have been released in
April of 2012 had he not been kicked out of the RDAP program. (Id. at 4.) Petitioner asks the
Court to order the BOP to reinstate him into the RDAP program. (Id. at 7.)
On February 6, 2012, Petitioner filed a Motion for Preliminary Injunction and Temporary
Restraining Order, wherein he contends Mr. Carnell continues to “send members of the RDAP
program to threaten, harass, intimidate, and attempt to pay [him] off with bribes.” (Document 10 at
2
2.) Petitioner argues he continues to suffer irreparable harm for his expulsion from RDAP
program because this significantly altered his release date.
II.
STANDARD OF REVIEW
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
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. Arn, 474 U.S. 140, 150 (1985). In addition, this
Court need not conduct a de novo review 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 (4th Cir. 1982). When reviewing
portions of the PF&R de novo, the Court will consider the fact that Plaintiff is acting pro se, and his
pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe
v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
III.
DISCUSSION
A. Magistrate Judge’s PF&R1
The Magistrate Judge first found that “Petitioner failed to fully exhaust his administrative
remedies prior to filing the instant action.” (Document 11 at 6.) As noted, Petitioner admitted he
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Petitioner alleges he has been subjected to cruel and unusual punishment in violation of the Eighth Amendment. (Id.)
Moreover, Petitioner alleges he was “denied equal protection against racial discrimination in violation of the 1st, 5th,
and 14th Amendments.” (Id. at 7.) Petitioner did not object to the Magistrate Judge’s proper finding that Eighth
Amendment and equal protection claims are not cognizable in habeas proceedings. (Document 11 at 2, n. 3.) The
Court need not address findings to which no objection is filed.
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failed to exhaust his administrative remedies. Next, the Magistrate Judge addressed Petitioner’s
argument that he should be excused from exhausting his administrative remedies. The Magistrate
Judge noted that “[e]xhaustion may be excused under certain circumstances, such as by a showing
of futility or irreparable injury.” (Id.) However, the Magistrate Judge indicated that “[i]t is clear,
however, that exhaustion should not be excused simply because an inmate believes that the length
of the exhaustion process will prevent the inmate from receiving a full 12 month RCC placement.”
(Id.)(citing See Wright v. Warden, 2010 WL 1258181,*1(D.Md. Mar. 24, 2010)(slip copy)(finding
that “[e]xhaustion of administrative remedies is not rendered futile simply because an inmate
anticipates he will be unsuccessful in his administrative appeals before the 12-month pre-release
mark”)).
Therefore, the Magistrate Judge found Petitioner should not be excused from
exhausting his administrative remedies and recommends that the Petition be dismissed for failure
to exhaust. (Document 11 at 7.)
Although the Magistrate Judge recommends dismissal on exhaustion grounds, he also
considered Petitioner’s substantive claim. The Magistrate Judge indicated that “[a]n inmate holds
a protectable right in those interests to which he has a legitimate claim of entitlement.” (Document
11 at 8) (citing Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7, 99 (1979)).
The Magistrate Judge indicated that prisoners are entitled to rights “not taken away, expressly or
by implication, in the original sentence to confinement.” (Id.) (citing Gaston v. Taylor, 946 F.2d
340, 343 (4th Cir. 1991)). However, the Magistrate Judge correctly noted this entitlement
will be generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). The Magistrate Judge then
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properly stated the legal prerequisites for establishing a deprivation of a liberty interest with
respect to RDAP. “Petitioner must show either (1) that he has a legitimate entitlement to admission
in RDAP or in early release or (2) that the denial thereof creates an atypical and significant
hardship on him in relation to the ordinary incidents of prison life.” (Document 11 at 8.) (citing See
Sandin, 515 U.S. at 483-84.) The Magistrate Judge concluded 18 U.S.C. § 3621(e) “vests the
BOP with broad discretionary authority to reduce, by up to one year, the sentence of a federal
prisoner convicted of a nonviolent offense, upon the successful completion of a substance abuse
treatment program.” (Id. at 9) (citing 18 U.S.C. § 3621(e); see also Lopez v. Davis, 531 U.S. 230,
232 (2001)). The Magistrate Judge found the “BOP has wide discretion in determining both
whether an inmate enters such a program in the first instance and whether to grant or deny eligible
inmates a sentence reduction under Section 3621(e).” (Id. at 10.)
The Magistrate Judge concluded the Petitioner does not have a constitutionally protected
expectation interest in receiving a sentence reduction. (Id.) Further, the Magistrate Judge found
“[n]either Section 3621(e), the BOP’s Program Statement (P.S. 5162.04), nor the Code of Federal
Regulations (28 C.F.R. § 550.58), contain explicit mandatory language or standards limiting the
BOP’s discretion, which may have given rise to a protected liberty interest in early release.” (Id.)
Thus, the Magistrate Judge concluded Petitioner does not possess a statutorily protected
expectation interest in early release. (Id. at 11.) Finally, the Magistrate Judge concluded the
determination that Petitioner is ineligible for early release does not amount to an “atypical and
significant hardship” in relation to the ordinary incidents of prison life. (Id.) “Because nothing in
the record indicates that Petitioner’s conditions of confinement at FCI Beckley were atypical or
resulted in a significant hardship,” the Magistrate Judge found that Petitioner has failed to
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demonstrate a due process violation and thus, does not possess a constitutionally protected interest
in early release or reinstatement in RDAP. (Id.)
B. Petitioner’s Objections
Petitioner makes several objections to the Magistrate Judge’s finding that he does not
possess a constitutionally or statutorily protected liberty interest in early release.2 (Id. ¶¶ 3,6-9)
First, Petitioner contends he has a protected liberty interest with respect to the RDAP program
because he was already enrolled and participating in the program and upon completion he would
have been released early. (Document 13 ¶ 3.) Second, Petitioner argues his claim is different than
Greenholtz and Gaston because those cases dealt with parole board hearings, while his case deals
with expulsion from RDAP which caused a delayed release date. (Id. ¶ 6.) Third, Petitioner
argues his case is distinguishable from Sandin because he was expelled from RDAP program as
opposed to not being admitted into the RDAP program. (Id. ¶ 7.) Fourth, Petitioner appears to
concede that § 3621(e) vests the BOP with discretionary authority to reduce a prisoner’s sentence.
(Id. ¶ 8.) However, he then states:
[b]e that as it may, on [July 21, 2011] the (RDAP-C) J. Moore, Ph.D. submitted
(BP-A0942) ‘Request for § 3621(e) Offense Review Form’ to the (DSSC) in Grand
Prarie, Tx. On [July 25, 2011] Assistant General Counsel approved the request for
early release incentive and petitioner would no doubt have received the early
release incentive as it is a regular practice to award inmates who have completed
RDAP with the early release incentive. Therefore, petitioner was entitled to receive
the early release incentive upon completion of RDAP and by erroneously expelling
petitioner from the RDAP program without due process in effect denied a protected
liberty in the early release incentive . . . [.]
(Id.) Finally, Petitioner argues his erroneous expulsion from the RDAP program was an “atypical
and significant hardship” because this “altered and modified his term of imprisonment.” (Id. ¶ 9.)
2
Petitioner argues his expulsion from RDAP was in retaliation for filing a grievance against Mr. Carnell. (Document
13 ¶ 1.) In essence, Petitioner is challenging his expulsion from RDAP in violation of his due process rights.
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To demonstrate a due process violation, the Petitioner must show he was deprived of a
liberty interest protected under the Fifth Amendment. Greenholtz, 442 U.S. at 7. The Supreme
Court clearly held a prisoner has no constitutional or inherent right in being released before the
completion of lawful sentence. Greenholtz, 442 U.S. at 7; see also Sandin, 515 U.S. at 484 (1995).
Furthermore, several courts have held that there is no protected liberty interest in discretionary
early release under 18 U.S.C. § 3621(e) for completion of the RDAP. See Cook v. Wiley, 208
F.3d 1314, 1322–23 (11th Cir. 2000); Orr v. Hawk, 156 F.3d 651 (6th Cir. 1998); Santiago–
Lebron v. Fla. Parole Comm'n, 767 F.Supp.2d 1340, 1351 (S.D. Fla. 2011) (“It is well established
that inmates have absolutely no constitutional right to, or other protected liberty interest in, either
participating in RDAP or receiving a sentence reduction for completing such a program.”). A
Fourth Circuit Magistrate Judge found “no authority that construes § 3621 as conferring upon an
inmate a private right of action based on expulsion or exclusion from an RDAP program . . . [.]”
Mack v. Fed. Bureau of Prisons, CA 4:10-567-HMH-TER, 2011 WL 3419376 (D.S.C. May 23,
2011) report and recommendation adopted, CA 4:10-567-HMH-TER, 2011 WL 3419373 (D.S.C.
Aug. 3, 2011) aff'd, 459 F. App'x 213 (4th Cir. 2011).
The Court finds Petitioner’s objections are without merit because his participation in and
expulsion from the RDAP program is not a protected liberty interest under the Due Process Clause.
Furthermore, the Petitioner would have no protected liberty interest in an “early release” even had
he completed the program. Finally, to the extent Petitioner argues expulsion from the RDAP
program is an “atypical and significant hardship,” such objection is without merit because his
sentence was not altered or modified. Rather, he is simply not receiving a “possible” incentive
reduction which he would have received only if he completed RDAP and the BOP used its
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discretion to release him early. Further, the Court finds Petitioner’s perceived hardship is not
different from any other prisoner who is expelled from the RDAP program. Accordingly, the
objections are overruled and the Petition should be dismissed.3
IV.
CONCLUSION
Therefore, based on the findings herein, the Court does hereby ORDER that the Magistrate
Judge’s Proposed Findings and Recommendation (Document 11) be ADOPTED. The Court
ORDERS that Petitioner’s Application Under 28 U.S.C. § 2241 For Writ of Habeas Corpus By a
Person in State or Federal Custody (Document 1) be DISMISSED and Petitioner’s Motion for
Preliminary Injunction and Temporary Restraining Order (Document 10) be DENIED. Finally,
the Court ORDERS that this matter be removed from the docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:
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August 31, 2012
Petitioner makes three objections to the Magistrate Judge’s finding that he failed to exhaust his administrative
remedies. (Id. ¶¶ 2, 4-5) Petitioner contends the Magistrate Judge analyzed his failure to exhaust as it relates to twelve
(12) month RRC placement instead of his claim “based upon a protected liberty interest of up to (12) months incentive
time off sentence, not (12) months RCC placement.” (Id. ¶ 4.) Thus, Petitioner contends the standard should not apply
and he should be excused from exhaustion. Further, Petitioner contends §2241 does not have an exhaustion
requirement and can only be considered when the Respondent raises the issue as an affirmative defense. Also,
Petitioner argues he fully exhausted his administrative remedies on several prior occasions. (Id. ¶ 2.) The Court finds a
ruling on the exhaustion of administrative remedies objection is unnecessary in light the dismissal of the Petition on
substantive grounds.
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