Opinion
8:23-cv-0755-TMC-JDA
03-29-2023
Ernest Bivens, Petitioner, v. Warden of Bennettsville Federal Correctional Institution, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Ernest Bivens (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated in South Carolina at the Bennettsville Federal Correctional Institution (“FCI Bennettsville”). [Doc. 1 at 1.] Proceeding pro se, Petitioner brings this habeas corpus action purportedly under 28 U.S.C. § 2241. [Id.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition filed in this matter is subject to summary dismissal.
BACKGROUND
Petitioner commenced this action on February 22, 2023, by filing a petition for habeas corpus relief on the standard court form (the “Petition”) and a memorandum in support. [Docs. 1; 1-1.] Petitioner was sentenced on March 13, 2017, in the United States District Court for the Western District of North Carolina at case number 3:16-cr-00042-FDW. [Doc. 1 at 1.] Petitioner brings this action to challenge a decision by the BOP to apply a population management variable (“MGTV”), which impacts his custody classification. [Id. at 2.] Specifically, Petitioner contends the BOP used the MGTV “inappropriately in order to prevent [his] transfer to a facility that offers a BOP sponsored program.” [Id.] Petitioner contends he has exhausted his administrative remedies. [Id. at 2-4.] Petitioner asserts a single ground for relief:
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Petitioner's envelope is marked as having been received by the prison mailroom at FCI Bennettsville on February 22, 2023, which is also the date the Petition was signed. [Docs. 1-2 at 1; 1 at 9.]
Pursuant to the BOP's Program Statement 5100.08, Ch. 2 p. 3, a MGTV “reflects and supports the professional judgment of [BOP] staff to ensure the inmate's placement in the most appropriate level institution. A [MGTV] is required when placement has been made and/or maintained at an institution level inconsistent with the inmate's security score-a score which may not completely/accurately reflect his or her security needs.” Bureau of Prisons, “Inmate Security Designation and Custody Classification,” available at https://www.bop.gov/policy/progstat/5100_008cn.pdf (last visited Mar. 29, 2023).
GROUND ONE: The BOP institution that currently has me in custody, FCI Bennettsville, has placed a management variable on me that has been improperly placed because the reasons for MGTV application do not apply in my case.
Supporting facts: I am requesting to be transferred to a low security level institution in order to take a BOP sponsored program. A management variable was placed on me to keep me at my current institution, even though I have low security custody points and I don't meet any of the application criteria for the use of a MGTV.[Id. at 7.] For his relief, Petitioner requests that the MGTV be removed from his custody classification record and that he be transferred to a low custody level institution, specifically FCI Petersburg Low, so that he can participate in the Life Connections Program (“LCP”). [Id. at 8; Doc. 1-1 at 2-3.] Alternatively, Petitioner asks that the Court order him to home confinement under the Cares Act. [Doc. 1 at 8.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Furthermore, this Court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (2012) (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
Habeas Corpus
Generally
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attack[ing] the computation and execution of the sentence rather than the sentence itself.” U.S. v. Miller, 871 F.2d 488, 490 (4th Cir. 1989); Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). “A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.” Manigault v. Lamanna, No. 8:06-cv-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006). A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held, 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004), and “in the district of confinement rather than in the sentencing court,” Miller, 871 F.2d at 490.
Exhaustion
The execution of sentences and the computation of jail time is an administrative function under the authority of the Attorney General, who has delegated this task to the BOP, including the responsibility for computing time credits and determining a sentence termination date once a defendant actually commences serving his sentence. United States v. Wilson, 503 U.S. 329, 334-35 (1992). Accordingly, the Attorney General, through the BOP, must make the initial determination to award sentence credit for time spent in official detention; a district court does not have the jurisdiction to make an initial determination. U.S. v. Jeter, 161 F.3d 4, at *1 (4th Cir. 1998) (unpublished table decision). As a result, prior to filing a § 2241 habeas petition, a petitioner must exhaust his administrative remedies. McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004). The requirement to exhaust administrative remedies is not waivable. Jeter, 161 F.3d 4, at *2. Further, a petitioner's failure to exhaust administrative remedies is excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445.
The BOP's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request; Requests must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in a § 2241 matter); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (noting courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief” (internal quotation marks omitted)). Exhaustion allows prison officials to develop a factual record and provides “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). Any arguments not advanced at each step of the administrative appeal are procedurally defaulted. See Moffat v. Broyles, 288 F.3d 978, 981-82 (7th Cir. 2002). Moreover, if a prisoner cannot obtain an administrative remedy because of his failure to timely appeal at the administrative level, then the prisoner has procedurally defaulted his § 2241 claim, unless the prisoner can demonstrate cause and prejudice for the failure. See, e.g., Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996), cited with approval in Watkins v. Compton, 126 Fed.Appx. 621, 622 (4th Cir. 2005); Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994). Additionally, “[w]here a petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241, the exhaustion of administrative remedies is jurisdictional.” Hicks v. Jordan, 165 Fed.Appx. 797, 798 (11th Cir. 2006); see Timms, 627 F.3d at 533. Although the exhaustion of administrative remedies is not waivable, Jeter, 161 F.3d at *2 (4th Cir. 1998), some courts have held that the judicial exhaustion requirement of § 2241 may be excused by courts for discretionary reasons, such as where requiring exhaustion would be futile. See, e.g., Dunkley v. Hamidullah, No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007). Further, courts have emphasized a petitioner's failure to exhaust administrative remedies may be excused only upon a showing of cause and prejudice. McClung, 90 Fed.Appx. at 445.
DISCUSSION
At its core, Petitioner's claim involves a challenge to an allegedly improper custody classification, which in turn affects the institution where he is confined. As such, and for the reasons explained below, Petitioner's claim does not attack the computation or execution of his sentence and the Court therefore lacks jurisdiction over this § 2241 Petition.
Indeed, Petitioner acknowledges that his claim concerns “an issue that is not challenging [his] sentence or conviction.” [Doc. 1 at 5.]
In short, Petitioner wishes to be transferred to a lower custody facility, but he cannot do so due to his present custody classification. [Doc. 1-1 at 1.] He explains his predicament as follows. Petitioner was convicted on March 13, 2017, of certain drug offenses and sentenced to a term of 168 months' imprisonment. [Id. at 2.] He has “maintained clear conduct since approximately 2018 and has actively participated in the FCI Bennettsville GED Program.” [Id.] His custody classification form assesses him with 13 security points, which falls within the range of 12 to 15 points to qualify for low security classification. [Id.] Nevertheless, the BOP has applied an MGTV to his custody classification, resulting in his continued detention at a medium security federal prison. [Id.] Petitioner contends that the various factors which trigger an MGTV designation under BOP policy do not apply to him or to the facility at which he is presently incarcerated. [Id.] Petitioner has requested to be transferred to FCI Petersburg Low in order to participate in the LCP, which he describes as a “faith-based program . . . designed to address religious beliefs and value systems” and provides assistance to inmates by focusing on rehabilitation and re-entry needs. [ Id. at 2-3.]
Nevertheless, notwithstanding the good intentions of Petitioner to better himself by participating in the LCP at FCI Petersburg Low, his claims are not proper in this § 2241 action. As noted, while a § 2241 petition is the proper vehicle for a federal inmate to attack the manner in which his sentence is computed or executed, see 28 U.S.C. § 2241, it generally is not the proper vehicle to challenge certain conditions of confinement such as custody classification, see Preiser, 411 U.S. at 499-500. See Robinson v. LaManna, No. 3:08-cv-0277-SB-JRM, 2008 WL 4960236, at *2 (D.S.C. Nov. 19, 2008) (holding a challenge to the BOP's custody classification of a prisoner was not cognizable under § 2241). It is well settled that “[c]hallenges to a federal prisoner's custody classification, like the one brought by [Petitioner], are . . . not cognizable in habeas under § 2241.” Rodriguez v. Streeval, No. 7:20-cv-373, 2020 WL 3840424, at *2 (W.D. Va. July 8, 2020) (“Numerous district courts within the Fourth Circuit . . . have noted or applied this principle.”) (collecting cases).
This is so because the BOP's designation of an inmate's custody classification does not involve the execution of a sentence. See Brown v. LaManna, No. 3:08-cv-1918-HMH-JRM, 2008 WL 5062180, at *3 (D.S.C. Nov. 19, 2008). While “[t]he precise meaning of ‘execution of a sentence' is hazy,” Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 242 (3rd Cir. 2005), “[s]everal courts within the Fourth Circuit and this district have found that challenges to custody or security classifications cannot be brought under § 2241, unless the petitioner seeks a ‘quantum change in his level of custody,' such as the transfer from a prison facility to a halfway house,” Jordan v. Mansukhani, No. 2:17-cv-1051-RBH-MGB, 2017 WL 8473826, at *3 (D.S.C. Nov. 16, 2017) (citations omitted), Report and Recommendation adopted by 2018 WL 1456741 (D.S.C. Mar. 23, 2018)
Here, Petitioner has not alleged facts showing that the BOP's imposition of the MGTV has affected the fact or duration of his confinement, that his right to earn good conduct time has been affected by his custody classification, or that his desire to participate in the LCP at FCI Petersburg Low would affect the length of his sentence. See Raines v. McCaffrey, No. 5:22-cv-66, 2022 WL 2336073, at *2 (N.D. W.Va. May 31, 2022), Report and Recommendation adopted by 2022 WL 2334009 (N.D. W.Va. June 28, 2022), and by 2022 WL 2980695 (N.D. W.Va. July 27, 2022). Such challenges to custody classification that purportedly have an effect on a prisoner's custody level, institutional placement, and rehabilitative opportunities do not involve the execution of a sentence. Jordan, 2017 WL 8473826, at *3. Further, Petitioner has not alleged facts showing a “quantum change in the level of custody” such that his custody classification impacts the execution of his sentence. See Campbell v. Deboo, No. 1:11-cv-00003, 2011 WL 1694454, at *2 (N.D. W.Va. May 4, 2011) (“If a prisoner seeks a ‘quantum change' in his level of custody, such as freedom, his remedy is habeas corpus. However, if a prisoner seeks a different program, location, or environment, his challenge is to the condition of his confinement rather than the fact of his confinement and his remedy is under civil rights law.”), aff'd, 451 Fed.Appx. 288 (4th Cir. 2011). As such, Petitioner may not use § 2241 to challenge his custody classification and this Court is without jurisdiction to consider his claim.
The undersigned also notes that, even if the Court were to construe this action as one asserting violations of Petitioner's civil rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the action still would be subject to dismissal for failure to state a claim. See Sappleton v. Hogsten, No. 1:11-cv-00552, 2014 WL 2565547, at *1 (S.D. W.Va. June 6, 2014) (construing § 2241 petition challenging custody classification as a complaint pursuant to Bivens and dismissing it for failure to state a claim and noting “the BOP's determination concerning Petitioner's security level does not constitute an ‘atypical and significant hardship' on Petitioner in relation to the ordinary incidents of prison life”). Courts have consistently concluded that claims, such as those raised here, regarding improper custody classification do not give rise to due process or equal protection violations because “security classification is reserved to the sole discretion of prison officials” and “[a]n inmate does not have a constitutional right to be placed in a specific security classification, and custodial classifications do not create a major disruption in a prisoner's environment.” Thuan Minh Pham v. Saad, No. 5:16-cv-176, 2018 WL 3148237, at *15 (N.D. W.Va. Jan. 24, 2018) (citations omitted). Indeed, the United States Supreme Court has explained that a prisoner has no inherent constitutional right to be incarcerated in a particular institution, Meachum v. Fano, 477 U.S. 215, 224 (1976), and that a prisoner also has no right to a particular security classification, Montanye v. Haynes, 477 U.S. 236, 242 (1974).
Finally, the Court notes that Petitioner's alternative request for relief-to be placed on home confinement under the CARES Act-is without merit. Petitioner provides no argument nor does he cite any legal authority to support his request for relief. In any case, “the court lacks the authority to order Petitioner's release into home confinement” because the CARES Act “empowers the Attorney General and [BOP] Director to lengthen the amount of time an inmate can serve his sentence on home confinement.” Holt v. Warden, No. 0:22-cv-158-RMG-PJG, 2022 WL 837526, at *2 (D.S.C. Feb. 23, 2022), Report and Recommendation adopted by 2022 WL 836745 (D.S.C. Mar. 21, 2022). “[W]hile the CARES Act affords the BOP broad discretion during the COVID-19 pandemic, the court lacks jurisdiction to order home confinement for [the petitioner] under this provision.” McCarson v. Reherman, No. 2:20-cv-01386-HMH-MGB, 2020 WL 2110770, at *2 (D.S.C. May 4, 2020). The decision of whether to release an inmate to discretionary home confinement rests solely with the BOP and not with this Court, see United States v. Carroll, Case No. 1:16-cr-632-JMC, 2020 WL 1976498, at *1-2 (D.S.C. Apr. 24, 2020), and the CARES Act does not “provide a mechanism for the court to review the FBOP's placement decisions.” Andrews v. Ramos, No. 5:22-HC-2114-FL, 2023 WL 1822837, at *1 (E.D. N.C. Feb. 8, 2023).
CONCLUSION AND RECOMMENDATION
Accordingly, it is recommended that the § 2241 Petition be DISMISSED without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
Petitioner's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).