VILLATORO v. ZICKEFOOSE et al
Filing
2
MEMORANDUM, OPINION, ORDER the Petition, as drafted, is DISMISSED and Clerk shall administratively terminate this matter. ORDERED Clerk shall serve this Order by certified mail, return receipt requested with a blank IFP application. Signed by Judge Robert B. Kugler on 9/26/2011. (nz, )n.m.
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NELSON VILLATORO,
Petitioner,
v.
DONNA ZICKEFOOSE, et al.,
Respondents.
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Civil Action No. 11-4619 (RBK)
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Petitioner’s filing of
a Section 2241 Petition, which arrived unaccompanied by either
Petitioner’s
filing
fee
of
$5.00
or
his
in
forma
pauperis
application, and it appearing that:
1.
Petitioner is a federal inmate, currently serving his federal
term of imprisonment.
Petitioner is challenging a certain
program (seemingly, the literacy program) administered to
federal inmates.
Pursuant to the governing regulation, the
program Petitioner is referring to allows accrual of a certain
amount
of
good-conduct-time
(“GCT”)
credits
to
the
participating inmates, that is, if these inmates maintain the
behavior qualifying them for GCT credits altogether.
In
contrast, the inmates not participating in the program accrue
less GCT credits.
The regulatory regime makes an exception
for removable aliens, allowing such aliens to obtain the
maximum amount of GCT credits possible without participating
in the program.
2.
The
best
this
Court
can
surmise,
Petitioner is still
participating in the program in order to ensure that he would
be
allowed
possible.
to
obtain
the
maximum
amount
of
GCT
credits
However, it appears that Petitioner wishes to stop
participating in the program while continuing receiving the
maximum amount of GCT credits allowed.
Petitioner seems to
maintain that he should be allowed to do so on the grounds
that Petitioner is a removable alien.
3.
The Petition is accompanied by a series of documents.
These
documents indicate that Petitioner exhausted his challenges
solely by means of seeking informal resolution and appealing
the outcome to his warden. These documents also suggest that,
at this juncture, the prison authorities have no basis to deem
Petitioner a removable alien, since no detainer or other
document so suggesting was lodged against Petitioner by the
immigration authorities.
In other words, it appears that the
sole basis for Petitioner’s belief that he is a removable
alien is Petitioner’s own conclusion to that effect.
4.
In the event this Court correctly construed Petitioner’s
challenges, the Petition contains numerous shortcomings.
At
the outset, it appears that Petitioner’s challenges are wholly
speculative and, hence, fail to meet the “case or controversy”
requirement set forth in the Article III.
Moreover, even if
this Court were to presume that Petitioner is about to stop
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participating in the program and he would necessarily lose GCT
credits in the event he does so (which, in turn, might mean
that Petitioner’s injury is sufficiently imminent to meet the
Article III requirements), the nature of relief sought by
Petitioner and the propriety of Petitioner’s application for
such relief in a habeas action are unclear.
Indeed, even if
the Court is to hypothesize that Petitioner seeks injunctive
or declaratory relief, e.g., in the form of an order directing
Respondents not to reduce Petitioner’s GCT credits in the
event Petitioner elects to stop participating in the program,
the propriety of entertaining such challenge in a habeas
action is uncertain: such challenges to the constitutionality
of the regulation appear to be of the type suited to be raised
by means of a civil complaint rather than a habeas petition.
Furthermore,
even
if
this
Court
were
to
presume
that
Petitioner’s application for the relief he wishes to obtain
could be sought in a habeas action, the substance of his
claims appears ambiguous at best.
5.
The documents attached to the Petition suggest that, as of
now, there is no documentary basis to deem Petitioner a
removable detainee.
Indeed, it appears that, at the instant
juncture, Petitioner relies merely on his concerns that, at
some future point, he might be deemed a removable detainee,
while
conceding
that,
if
he
is
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9
not
deemed
a
removable
detainee, he cannot obtain the maximum amount of GCT credits
allowed unless he participates in the program. Therefore, the
actual challenge this Court can distill from the rather broad
range of Petitioner’s allegations appear to be rooted in
Petitioner’s
position
that
the
regulatory
regime
is
unconstitutional as applied to a federal inmate who might, at
some point in the future, be deemed a removable detainee but
who has no detainer (or an analogous document executed by the
immigration authorities) lodged against him.
6.
If the Court is to presume that Petitioner actually wished to
articulate the above-stated line of challenges, it appears
that
Petitioner
did
not
exhaust
these
challenges
administratively. In fact, it appears that Petitioner did not
fully exhaust any challenges administratively.
Indeed, the
documents attached to Petitioner’s application indicate that
he sought to be excused from participation in the program
(while accruing the maximum amount of GCT credits allowed) on
the grounds that he is officially deemed a removable alien by
the immigration authorities, and that this line of challenges
was dismissed only by Petitioner’s warden: on the grounds that
Petitioner was not a removable alien, officially.
It appears
that Petitioner did not appeal even this line of challenges to
the Regional or Central Office of the BOP.
is
no
reason
for
the
Court
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presume
A fortiori, there
that
Petitioner
administratively exhausted what appears to be his actual
claims, i.e., that he should be allowed to accrue the maximum
amount of GCT credits (while not participating in the program)
on the grounds that he is a potentially removable alien.
7.
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging
the execution of his sentence, until he has
exhausted all available administrative remedies.
See, e.g.,
Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw
v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981); Arias v.
United States Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981);
Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).
The
exhaustion doctrine promotes a number of goals: it is “(1)
allowing the appropriate agency to develop a factual record
and apply its expertise facilitates judicial review; (2)
permitting agencies to grant the relief requested conserves
judicial resources; and (3) providing agencies the opportunity
to correct their own errors fosters administrative autonomy.”
Goldberg v. Beeler, 82 F. Supp. 2d 302, 309 (D.N.J. 1999),
aff'd, 248 F.3d 1130 (3d Cir. 2000); see also Moscato v.
Federal Bureau of Prisons, 98 F.3d 757, 761 (3d Cir. 1996).
8.
Here,
granted
the
ambiguity
of
Petitioner’s
challenges,
enforcement of the exhaustion requirement appears particularly
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suited.
Therefore, Petitioner’s instant § 2241 application
will be dismissed for failure to exhaust his administrative
remedies.
Such
Petitioner’s
dismissal
filing
of
will
another
be
§
without
2241
prejudice
petition
to
once
Petitioner’s challenges are fully exhausted administratively.1
9.
However,
in
light
of
the
ambiguities
associated
with
Petitioner’s instant § 2241 application, the Court cannot rule
out the possibility that: (a) Petitioner wishes to raise
claims other than those discerned by the Court; and (b)
Petitioner
did,
administratively.
in
fact,
fully
exhaust
his
challenges
Therefore, the Court finds it in the
interests of justice to allow Petitioner an opportunity to
file
an
amended
petition:
(a)
1
detailing
his
precise
The BOP's Administrative Remedy Program is a three-tier
process available to inmates confined in institutions operated by
the BOP who "seek formal review of an issue relating to any
aspect of his/her confinement." 28 C.F.R. § 542.10(a). An
inmate must generally attempt to informally resolve the issue by
presenting it to staff in a BP-8 form. See 28 C.F.R. § 542.13.
If the issue is not informally resolved, then the inmate may
submit a request for administrative remedy (BP-9) to the Warden.
See 28 C.F.R. § 542.14. An inmate who is dissatisfied with the
Warden's response may appeal to the Regional Director (BP-10),
and an inmate dissatisfied with the Regional Director's decision
may appeal to the General Counsel in the Central Office (BP-11).
See 28 C.F.R. § 542.15(a). Appeal to the General Counsel is the
final administrative appeal. See id. The regulations further
provide that the Warden shall respond within 20 calendar days;
the Regional Director shall respond within 30 calendar days; and
the General Counsel shall respond within 40 calendar days. See
28 C.F.R. § 542.18. And the regulation provides that if the
inmate does not receive a response within the time allotted for
reply, then the inmate may consider the absence of a response to
be a denial at that level. See id.
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challenges,
if
administratively
determination
any,
which
(these
which
Petitioner
challenges
either affected
fully
shall
exhausted
address
Petitioner’s
term
a
of
confinement or is about to affect his term of confinement
imminently);2
(b)
specifying
the
exact
factual
predicate
underlying Petitioner’s claims (e.g., stating, with utmost
clarity, the basis for Petitioner’s belief that he should be
treated by his prison officials as a removable alien); and (c)
stating the exact remedy Petitioner seeks to obtain in this
habeas matter.
IT IS, therefore, on this
26th
day of
September
, 2011,
ORDERED that the Petition, as drafted, is dismissed as unripe
or, in alternative, as seeking a remedy that cannot be obtained by
2
A litigant is entitled to a writ of habeas corpus only if
he “seek[s] to invalidate the duration of [his] confinement either directly through an injunction compelling speedier release
or indirectly through a judicial determination that necessarily
implies the unlawfulness of the [government's] custody.” See
Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). In contrast, if a
judgment in the prisoner's favor would not affect the fact or
duration of the prisoner's incarceration, habeas relief is
unavailable and a civil complaint is the appropriate form of
remedy. See, e.g., Ganim v. Federal Bureau of Prisons, 235 Fed.
App’x 882 (3rd Cir. 2007) (holding that district court lacks
jurisdiction under § 2241 to entertain prisoner's challenge to
his transfer between federal prisons); Bronson v. Demming, 56
Fed. App’x 551, 553-54 (3rd Cir. 2002) (habeas relief was
unavailable to inmate seeking release from disciplinary
segregation to general population, and district court properly
dismissed habeas petition without prejudice to any right to
assert claims in properly filed civil rights complaint).
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means of a habeas petition or, in alternative, for failure to meet
the exhaustion requirement; and it is further
ORDERED that the Clerk shall administratively terminate this
action by making a new and separate entry on the docket reading
“CIVIL CASE TERMINATED”; and it is further
ORDERED that, in the event Petitioner is of opinion that he
has challenges of habeas nature and he fully exhausted these
challenges administratively, Petitioner shall file, within thirty
days from the date of entry of this Order, Petitioner’s amended
petition detailing these challenges in accordance with the guidance
provided in this Order and verifying that these challenges are duly
exhausted administratively at all levels of the BOP; and it is
further
ORDERED that, in the event Petitioner files such amended
petition, the Court will direct the Clerk to reopen this matter;
and it is further
ORDERED that, regardless of whether or not Petitioner elects
to file his amended petition, Petitioner shall submit, within
thirty days from the date of entry of this Order, his filing fee of
$5.00 or his duly executed in forma pauperis application; and it is
finally
ORDERED that the Clerk shall serve this Order upon Petitioner
by certified mail, return receipt requested.
The Clerk shall
include in that mailing with a blank in forma pauperis form for
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incarcerated individuals seeking to commence a habeas action.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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