Gruly, Seth v. Holinka, C.

Filing 9

ORDER denying and dismissing 1 Petition for Writ of Habeas Corpus. Signed by District Judge Barbara B. Crabb on 7/20/2010. (jef),(ps)

Gruly, Seth v. Holinka, C.

Doc. 9

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------S E T H GRULY, Petitioner, v. C A R O L HOLINKA, Warden, R espo nd ent. --------------------------------------------U n d er the Second Chance Act of 2007, 18 U.S.C. § 3624(c), the Federal Bureau of P riso n s is authorized to place prisoners in a residential re-entry center, or halfway house, for u p to 12 months before the end of the prisoner's term of imprisonment. In this petition for a writ of habeas corpus brought under 28 U.S.C. § 2241, petitioner Seth Gruly contends that the Bureau is violating § 3624(c) by refusing to transfer him to a halfway house until th e last six months of his sentence. In an order dated June 8, 2010, I directed respondent to show cause why the petition should not be granted. OPINION and ORDER 1 0 -c v -2 6 2 -s lc 1

1

For the purposes of issuing this opinion and order, I am assuming jurisdiction over

the case.

1

Dockets.Justia.com

D I S C U S S IO N U nd er 18 U.S.C. § 3624(c)(1), The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final m o n th s of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a com m unity correctional facility. The language of the statute makes it clear that prisoners are not guaranteed 12 months at a halfway house. Rather, the Bureau is required, when "practicable," to allow a prisoner to sp en d "a portion" of the last months of his term under conditions that will prepare him for reentry. Neither the amount of time nor the place for that preparation is spelled out by § 3 6 2 4 ( c ) (1 ) . T his does not mean that the Bureau has absolute authority to deny a prisoner transfer to a halfway house. Under § 3624(c)(6), the Bureau must "ensure that placement in a c o m m u n i t y correctional facility . . . is . . . of sufficient duration to provide the greatest likelihood of successful reintegration into the community." In addition, decisions about p lacem en t in a halfway house must be made "on an individual basis" and take into account the factors listed in 18 U.S.C. § 3621(b). 18 U.S.C. § 3624(c)(b)(A)-(C). These factors in clu de "(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court

2

that imposed the sentence . . .; and (5) any pertinent policy statement issued by the S entencin g Commission pursuant to section 994(a)(2) of title 28." 18 U.S.C. § 3624(b). In response to the order to show cause, respondent submits a declaration from petitioner's case manager (who made the decision to give petitioner six months in a halfway house). Dkt. #6. The declaration shows individualized consideration of each of the five fa cto rs. Petitioner, however, contends that the case manager failed to consider several relevan t facts in her review.

A. The Bureau's Initial Evaluation First, petitioner contends that the case manager did not give proper consideration to the death of petitioner's grandparents and failed to contact the halfway house office in C levelan d, Ohio to determine whether petitioner could be accommodated there. In addition, p etitio n er contends that the case manager gave too much weight to petitioner's convictions and performance in the prison's drug treatment program and failed to give adequate weight to petitioner's good disciplinary record and future employment prospects. It is not the court's role to review the § 3621(b) factors independently and make a de novo determination as to petitioner's placement in a halfway house. The case manager's d ecisio n , adopted by the Bureau, is entitled to deference so long as it is not arbitrary, lacking any rational basis or otherwise contrary to the requirements of the statute. Singleton v.

3

S m ith , 2010 WL 744392, *2 (C.D. Ill. Feb. 26, 2010) ("If the [BOP] considers the relevant factors in making its determination, a challenge . . . could not succeed unless the plaintiff co uld show that the decision was arbitrary, capricious, or otherwise an abuse of discretion, a difficult standard for the plaintiff to meet.") (citing Tristano v. Federal Bureau of Prisons, 2008 WL 3852699, at *1 (W.D. Wis. May 15, 2008)); see also Pence v. Holinka, 2009 WL 3241 874, *3 (W.D. Wis. Sept. 29, 2009) (denying petition for writ of habeas corpus b e c a u s e Bureau's decision was not arbitrary and was entitled to deference). Although petitioner disagrees with the Bureau's decision, he has not shown that it was arbitrary or an abu se of discretion.

B. Bureau's Refusal to Consider New Recommendation by Sentencing Judge Petition er's remaining argument is that the case manager did not give proper con sideration to the fourth factor in 18 U.S.C. § 3624(b), which instructs the Bureau to co nsider statements made by the sentencing judge when deciding whether a prisoner should spend additional time in a halfway house. Petitioner's case manager found that the

sentencin g judge ordered petitioner to complete 500 hours in the Bureau's substance abuse treatm en t program and recommended that he participate in available education and em p lo ym en t training programs. When petitioner's case manager considered petitioner for additional halfway house placement in August 2009 and January 2010, she concluded that

4

th e fourth factor weighed against such placement because continued incarceration would enable petitioner to take full advantage of the drug and employment training programs a v ailable at the facility. However, on April 9, 2010, the sentencing judge amended the judgm ent and sentence, recommending that petitioner be considered for the full 12 months in a halfway house, dkt. #1-2. Petitioner contends that the case manager should be required to reevaluate her decision in light of the sentencing judge's recommendation. As an initial matter, respondent contends that petitioner has not exhausted his adm inistrative remedies with respect to his claim that the Bureau should consider the sentencing judge's new recommendation because petitioner did not file any internal grievan ces regarding the judge's April 2010 recommendation. Although § 2241 does not include an exhaustion rule, the Court of Appeals for the Seventh Circuit applies one under com m on law. Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir. 1986). Failure to exhaust is an affirmative defense that the defendants have the burden of pleading and proving, Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Massey v. Helman, 196 F.3d 727, 735 ( 7 t h Cir. 1999). Although a prisoner "must take all steps prescribed by the prison's

grievan ce system" in order to exhaust his administrative remedies, Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004), he need exhaust only the remedies "available" to him. Kaba v. S tep p, 458 F.3d 678, 684 (7th Cir. 2006). Prison officials may render exhaustion

un av ai lab le by refusing to provide proper grievance forms, Id., 458 F.3d at 686; Dale v.

5

L app in, 376 F.3d 652, 656 (7th Cir. 2004); by failing to show that grievance procedures w ere available to a prisoner who is incapacitated and in isolation, Pavey v. Conley, 170 Fed. Ap px. 4, 5 (7th Cir. 2006) (unpublished); by failing to "respond to a properly filed grievance or [by] otherwise us[ing] affirmative misconduct to prevent a prisoner from exhausting." D ole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); see also Wilder v. Sutton, 310 Fed. Appx. 10, 14 (7th Cir. 2009) (unpublished) (not responding to prisoner's grievance made pro cess unavailable). Finally, "if a prisoner is told to wait to file a grievance, and that wait m akes the claim untimely, then that too will have made the process unavailable." Wilder, 31 0 Fed. Appx. at 13 (citing Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002); see also B row n v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005) (stating that information provided to priso ner concerning operation of grievance procedures was relevant in deciding whether available remedies had been exhausted). P etitio n er received the amended judgment from the sentencing judge on April 9, 2010 w hile his administrative appeal regarding the Bureau's decision on his halfway house p lacem en t was pending. Petitioner avers that after he received the amended judgment from the sentencing judge, he provided a copy of the judgment to his case manager. The case m an a g e r refused to consider the information or change her recommendation regarding petitioner's placement in a halfway house. Petitioner then approached his unit manager, w h o told petitioner that the prison would take no action with respect to the sentencing

6

judge's recommendation. Next, petitioner consulted with his unit counselor about filing a grievan ce. His counselor told petitioner that he did not need to file a grievance containing the new information, but should instead supplement his pending administrative appeal with a copy of the sentencing judge's recommendation. Petitioner sent the information to the Bureau's central office in Washington D.C. The central office rejected his appeal on May 7 , 2010. From petitioner's averments, it appears that petitioner was justified in believing that it was unnecessary to file a new grievance concerning the sentencing judge's recom m enda tion because his counselor told him that it was sufficient to supplement his pending appeal. Thus, it appears that petitioner has exhausted all of the administrative rem edies that were "available" to him. H ow ever, I agree with respondent that regardless whether petitioner has exhausted his remedies, his claim fails on the merits. The Bureau was not required to consider the sen ten cin g judge's new recommendation that petitioner be considered for 12 months of halfw ay house placement. Section 3624(c) does not require the Bureau to conduct a new evalu atio n each time information arises that affects one of the five factors in § 3621(b). For exam p le, an inmate's disciplinary record, family situation, participation in drug and rehabilitation programs and, as in this case, recommendations by the sentencing judge may ch an ge after the Bureau evaluates whether the inmate should receive additional time in a halfw ay house. Neither the statute nor Bureau regulations require the Bureau to reevaluate

7

an inmate's eligibility for additional halfway house time whenever such a change occurs. Because the Bureau has provided evidence that it considered the facts that were available at th e time the case manager evaluated petitioner's situation, the Bureau has complied with 18 U .S.C. § 3624(c). Accordingly, petitioner is not being held in custody in violation of the C o nstitutio n or laws of the United States and his petitioner for a writ of habeas corpus will be denied.

OR DER IT IS ORDERED that Seth Gruly's petition for a writ of habeas corpus is DENIED for his failure to show that he is in custody in violation of the Constitution or the laws of the U nited States and this case is DISMISSED. E n tered this 20th day of July, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

8