Anderson v. Thomas, No. 3:2010cv06377 - Document 25 (D. Or. 2011)
Court Description: OPINION AND ORDER. Petitioner's Petition for Writ of Habeas Corpus 1 is DENIED. IT IS SO ORDERED. Signed on 7/07/2011 by Judge Michael W. Mosman. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION GREGORY ANDERSON, CV. 10-6377-MO Petitioner, OPINION AND ORDER v. JEFFERY THOMAS, Respondent. STEPHEN R. SADY Office of the Federal Public Defender 101 SW main Street, Suite 1700 Portland, OR 97204 Attorney for Petitioner DWIGHT C. HOLTON United States Attorney RONALD K. SILVER Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204-2902 Attorneys for Respondent 1 - OPINION AND ORDER Mosman, District Judge. Petitioner, an inmate at the Satellite Camp Prison Sheridan, Oregon at the time of filing, action pursuant to 28 U.S.C. § 2241. ("SCP"), brings this habeas corpus He alleges he was wrongfully denied credit for 8 1/2 months participation in the Residential Drug Abuse Treatment Program ("RDAP") after disciplinary action was reversed and expunged; he was wrongfully required to repeat RDAP or be designated wi thdrawn/fail despite disciplinary action being reversed and expunged; and his early release incentive eligibility was wrongfully rescinded. (#1, at 3.) Petitioner asks the Court to require the BOP to (1) immediately credit him for completion of RDAP as of April 30, 2010; (3) (2) restore early release eligibility; credit him for days of imprisonment beyond the early release date toward community corrections time; him; (4) immediately release (5) correct all records to reflect he completed RDAP; and (6) reimburse him for unpaid incentive/job substitution pay of $40. (Id. at 29.) individualized Because RDAP this Court lacks determinations, jurisdiction to and Petitioner otherwise shown protected rights were violated, Writ of Habeas Corpus (#1) review has not the Petition for is DENIED. BACKGROUND I. Statutory Background. In 18 U.S.C. §§ 3621-3625, Congress vested the BOP with broad authority to manage the imprisonment of a convicted person, and specified "[tJhe Bureau shall make available appropriate substance 2 - OPINION AND ORDER abuse treatment for each prisoner the Bureau determines treatable condition of substance addiction or abuse." § 3621(b). has a 18 U.S.C. Congress articulated a specific statutory mandate for residential substance prisoners," defined as one who is "(i) determined by the Bureau of Prisons to have a abuse treatment programs substance abuse problem, and for (ii) "eligible willing to participate in a residential substance abuse treatment program [ . ] " 18 U.S.C. § provisions 3621(e) (5) (B).l for judicial In 3625 Congress specified that the § review Administrative Procedures Act under ("APA") 1994, Congress enacted the the "do not apply to the making of any determinations, decision, or order" under In of 701-706 §§ Violent § 3621.2 Crime Control Law Enforcement Act of 1994 ("VCCLEA"), which amended 18 U.S.C. § 3621 to include an early release incentive for inmates convicted of non violent § offenses 3621(e) (2). who The successfully early release complete incentive RDAP. is 18 awarded U.S.C. at the discretion of the BOP. 3 IThe program the BOP created to satisfy this mandate is the Residential Drug Abuse Program ("RDAP"). 2Section 3625 specifies: Inapplicability of the Administrative Procedures Act The provisions of sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter. Sect ion 3621 (e) (2) specifies in relevant part: (A) Generally. Any prisoner who, in the judgment of the Director of the [BOP], has successfully completed a program of residential substance abuse treatment provided under 3 3 - OPINION AND ORDER BOP's implementing regulations for drug treatment are at 28 C.F.R. 550.55 §§ to RDAP. from RDAP.4 550.50-550.57 Section 550.53 (g) 550.53 addresses sion Section 550.57 addresses inmate appeals. BOP's ernaol agency guidelines abuse programs are found in Chapter Two P5330.11 (2009), (3/16/2009). (2) for s of Section 2.5 is specific to RDAP. drug Statement 6 pa (1) of this subsection, shall remain in custody of the [BOP] under such t as Bureau deems appropriate. (B) Period of Custody. The period a prisoner cted of a nonviolent offense remains in custody a er success ly complet a treatment program may be reduced the [BOP], but such reduction may not be more than one year from the term prisoner must otherwise serve." 8 C.F.R. § 550.53(g). Expulsion from RDAP. (1) Inmates may be removed from the program Abuse Coordinator because of dis related to the program or unsatis progress in treatment. (2) Ordinarily, inmates must be at st one formal warning before removal from RDAP. A formal is not necessary when the document lack of with program standards is of such tude that an inmate's continued presence would create an and ongoing problem for staff and other * * * 8 C.F.R. § 550.57. Inmate Appeals. Inmates may seek formal review of compla s the operation of the drug abuse treatment program by us strative remedy procedures in 28 CFR part 542. 330.11 Section 2.5 reads in relevant 2.5.12. Program Outcomes. How an inmate leaves a RDAP is based on the 4 OPINION AND ORDER 's II. Background of the case. On March 19, 2009, Petitioner was sentenced to thirty (30) months imprisonment and five years supervised release following his conviction for Possess with Intent to Distribute 5 grams or More of Cocain Base in (b) (1) (B) (iii) . violation (#1, Ex. of 21 1 at 1-3.) U.S.C. § and Petitioner was admitted to the RDAP program at SCP Sheridan on July 20, 2009. 2.) 841 (a) (1) (#15, Decl. at He received an incident report on March 23, 2010, alleging he behavior. * * * (c) Withdrawal/Incomplete. * * * (d) Intervention and § 550.53(g). Expulsion from RDAP. * * * (a) Circumstances for an Intervention. Ordinarily, staff will provide the inmate with at least one treatment intervention prior to removal. However, in response to disruptive behavior or unsatisfactory progress, treatment staff will: - Meet with the inmate to discuss his or her behavior or lack of progress. - Assign the treatment intervention(s) chosen to reduce or eliminate the behavior, or to improve progress. - Warn the inmate of the consequences of failure to alter his/her behavior. - Properly document in PDS the meeting and treatment intervention(s) assigned. - Properly document in PDS changes to the inmate's treatment plan, and ensure that both staff and the inmate sign the amended treatment plan. - When appropriate, require the inmate to discuss his or her targeted behavior in the community. (b) Circumstances for Expulsion. In the event repeated treatment interventions are required in response to inappropriate behaviors or unsatisfactory progress the treatment team will meet to decide if the inmate will be removed from the program. 5 - OPINION AND ORDER act of "planning the prohibi haza contraband dis (music compact introduction disc), and non conduct ch s most like use of the telephone for abuses," both 300 level violat (# 1, Ex. 9.) Following a hear the Dis inary Hear Officer (DHO) the ted acts when Petitioner as tern to coo sanct "45 Days the effort. Loss of tted to a used the e- a (#1, Ex. 10.) Commissary leges - Suspended 4.,) It also appears Hous Unit (" SHU") Petitioner was leges 180 Days of Clear Conduct" and "90 Pr Days Loss of E"':mail 180 Days of Clear Conduct. (Id. n Peti tioner was transferred to a period of t 2010, found Petitioner to the SCP chapel, music cd and donate Is on April 9, 7 (#15, at Special . 2 at 1; #24, at 2.) On April 14, 20 0, Petitioner met with the Drug Abuse Program or, Neil Solomon, PhD. was told "until sta (# 5, Attach. 2 at 1.) teams with rized absence from treatment, his RDAP future at the meet next Tuesday ,~" On i120,2010, Cld.) The team the'n excused Peti tioner discussed Staff he was on be made scuss his rule (Id.) ioner a decision Petitioner met with the staff team to response to the meet Pet s lations. conduct and not feel Petitioner took t is not clear from the record whether the trans r to SHU was related to Pet ioner arranging the cd donat , or for some other act. (#15, Attach. 2 at 1.) 6 OPINION AND ORDER responsibility his behavior olations, led to were inclined to expel him from RDAP. Dr. Solomon suggested (Id.) he meet with Petitioner alone the following day anxiety the team meet 1 (Id.) 21, 2010, Dr. Solomon found Pet for his actions to In expected end of RDAP program was be expelled from RDAP. (Id. the meeting on April of strative remedy process was ava ,approach Petitioner's ioner did not take respons the at 3.) On May 6, 2010, Dr. Solomon consul inmates at 4.) Dr. anew Solomon partie informed e" Petitioner t status and discussed the modi Peti tioner was (Id. ) his (Id.) .) with the Regional the expulsion. expulsion because a place first. r be given the a modified treatment plan. are s e to him. not been Rhodes suggested Petit who Petitioner was Rhodes did not support modified treatment plan 1 ty informed Petitioner Abuse Program Coordinator, Dr. R. Rhodes (Id. and Dr. y to start RDAP .) was The same once again an with a few days to consider the next day, May 7th, Petitioner Dr . "RDAP ioner. and Dr. Solomon anything short of rejoining his group was unacceptable. Petit was a failure to Fail/Withdraw," and he was again given a opt (Id. at 5.) 7 - OPINION AND ORDER On May 10, 2010, plan, a designat luding starting RDAP anew, would the modi "RDAP days to cons r his Petitioner Dr. Solomon would not accept short of rejo at 6:) (Id. r pursued 'Pet the strative remedies to challenge both lations and 15.) rega the RDAP expulsion, Pet 19, 2010, in (#1 , ioner asked that re se to Petitioner's challenge On to, onal Director ordered staff to conduct Ex . 14 at 3.) A Janua 12, ioner's disciplinary record shows no record. s records be ( # 1 , Ex. 15.) ion of the program. conduct violations, the a central office In an August 14, 2010, appeal to to reflect compl August (#1, Exs. 3, expulsion from 4, 14 Pet s group. 2011, report of inary' actions on s (#15, Attach. 3.) On January 6, 2011, Dr. Solomon offered Petitioner the opt se of his RDAP treatment on January 9, of resuming the final 2011, with a proj At 2 January ,9, at completion date of January 31, 2011. Pet 7.) 2011, start not re sponded. Petitioner's ioner 1 on April 21, asked to respond before As of January 12, (Id. drug was at 8.) (#15, A January 12, 2011, 2011, Petit r report of status shows he was designated DAP Fail 2010, Fail-Withdraw as of DAP Parti 10, 2010. on May 6, 2010, and DAP (#15, Attach. 1.) DISCUSSION In his pro se iori, Petitioner ed credit for 8 1/2 months part I he was wrong ion in the Res ly ial Abuse Treatment Program ("RDAP"). after disciplinary action was 8 - OPINION AND ORDER reversed and expunged; be designated was wrongfully withdrawn/fail reversed and expunged; to repeat RDAP or despite s inary action his early release incentive eli was wrongfully res (#1, order the BOP to (1) He asked that the Court at 3.) for complet ly as of April 30, 2010; (2) lity of RDAP restore early release eligibili him for days of imprisonment (3) the early release date toward communi ty corrections time; (4) immediately release h (5) correct all records to re£lect he completed RDAP; and (6) re e for unpaid I. /job subst pay of $40. (Id. at 29.) Jurisdiction As a threshold matter, the Court must determine whether it has jurisdiction to consider the cl ition. See Wallace v. Cir. 1986) (juri Petitioner set forth in his Christiansen, ction must merits may be ) individualized . ssed and re to lsion - reinstatement - the claims. Petit r challenging the BOP's administrat granted. including his , the Court Reeb v. Thomas, 636 asserts a due process claim remedy process and response to fails to state a claim upon which relief may Under 28 U.S.C. only if an RDAP, 8 (9th Cir. 2011). extent s grievances, (9th before the l/fail des ks jurisdiction to consider To 1542 To the extent Petitioner is challenging rminations F.3d 1224, 1227 802 F.2d1539, § 2241(c) (3), habeas reI e "is in custody 9 - OPINION AND ORDER olation of f is-available Constitution or laws or treaties of United States." BOP regulat inmates the right to "seek formal review of complaints the operation of the drug abuse treatment program by us strative remedy § 550.57. 8 seek s in 28 C.F.R. Petitioner s to formal ew the conduct level Pet the when he to strative 9 s from RDAP to every program. ioner's grievances were not ~esolved to lation of federal ioner fully exhausted his olations and expuls BOP's not constitute a 2 8 C. F . R . s not allege he was denied his ri review, and the record shows Pet I 54 2 ." The s satisfaction does Therefore, Petit r is not entitled to relief. II. Retaliation Claim With the assistance of counsel, Pet tioner asserts: "the question be BOP's refusal to time act and result ions against memorandum the Court is whether the and fully remedy the wrongful expulsion rary prej from RDAP violated al agency act 8 C.F.R. part 542 details the procedures for of review: informal resolution; initial filing at itution; appeal to the Regional ice; and final Central Office. sc linary process and against Is 1 to Court notes that approximate 4 1/2 months a er an administrat remedy appea to"the Central Office, and y 7 weeks after fil the instant pet ion, phase ioner was offered the opportunity to resume the, of RDAP, with a ected completion e of January 31, 2011. (#1, Ex. 15; #15, Attach.2 at 7.) 10 - OPINION AND ORDER retaliat st [Petitioner] that turned out to be correct." (#24, Court to find the BOP actions violated Petitioner's First Amendment rights "as a U.S.C. §3583(e)."lO cate for a potential motion under 18 (#24,312; 14.) i tioner must A set forth his cIa relief See Rules Governing Proceedings petit Dist rs Erickson v. Pardus, and is liberal e reveal Petitioner was the administrative While titl 551 U.S. 89, ation of the pro 94 Porter v. (2007); The Court f that se peti tion does riot s using "c" of ition, Sheridan and RDAP through and process. Petitioner contends .in sect "are , a ion as a result of iming retal "Fear of Retaliation", program In g en e liberally construed by the Ollison, 620 F.3d 952, 958 (9th Cir. 2010). even a s is held to a less stringent st-.....LL . . . . . . .' . . . compl~ than one drafted by court. in the United States , 2 (c). ct Courts - Habeas Corpus Rule l(b) prisoner's pro se that the currently imidation[,]"(#I, at 6), under sect C Counsel argues at 3.) rst Amendment retaliation, and Petitioner has a viable claim of urges t of claims his lawful , the petition lid RDAP fies:': " Petitioner seeks ss from his his felonious 'withdrawn' status; and the 1°18 U.S.C. §3583 governs impos a er imprisonment; subsection (e) of the condit or terms of supe sentencing court. 11 - OPINION AND ORDER "B," titled "Summary of ion of supervis release s for modi ion release by the rescission of his § Under Pet section or enables prisoners." re ition, (#1, the at titled BOP 16.) to from the law, the APA, abus discretion Throughout i tion (#1, at 2, Pet r 4, 5, 16, that the First Amendment retal counseled brief was not set and is not properly before the Court. retaliation claim over s that the BOP's acts were arbitrary The Court thus in Argument," 1 " at 3.) rary and capricious lord and an abuse of discretion claim argued (#1, " stion is whether soners erates his assert capricious, 18. ) of licy protects s, sentence reduct cified: "[t]he ioner and/or act "K" 3621 (e) forth 17, ion the Therefore, the 11 not be cons CONCLUSION Based on the ing, Habeas Corpus (#1) Peti tioner' s Peti t Wri t is DENIED. IT IS SO ORDERED. DATED this ~~ day ~ of July, 2011. ed States Dist 12 - OPINION AND ORDER Judge of
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