Opinion
21-CV-2074 (LTS)
08-04-2021
ERIC JAMEL LESANE, Petitioner, v. WARDEN HERBERITO TELLEZ; GEO GROUP, Respondents.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District Judge:
Petitioner, previously detained at the Metropolitan Detention Center, Brooklyn (“MDC Brooklyn”), brought this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner paid the $5.00 filing fee to file this action. The Court denies the petition for the reasons set forth below.
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus from a person in custody challenging the legality of his detention on the ground that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Court has the authority to review the petition and “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled [to such relief].” 28 U.S.C. § 2243. The Court is obliged, however, to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them “to raise the strongest arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
BACKGROUND
In 2013, Petitioner was convicted in the United States District Court for the Southern District of New York of possessing a firearm with a defaced serial number as a convicted felon, and he was sentenced to 94 months' imprisonment. See United States v. Lesane, No. 12-CR-0524 (PGG) (S.D.N.Y. Nov. 1, 2013).
On March 3, 2021, Petitioner brought this action, seeking a writ of habeas corpus, under 28 U.S.C. § 2241. (ECF 1.) The following allegations are taken from the petition. At times relevant to this action, Petitioner resided in the Bronx Community Reentry Center (“Bronx RRC”). (Id. at 2.) On January 28, 2021, Petitioner “entered [Bronx RRC] on his telephone which is prohibited from being used in front of the operations area.” (Id. at 13.) T. Boynton, a staff member at Bronx RRC, informed Petitioner of the rules. (Id.) Petitioner continued talking on his phone, however, and called Boynton a “bitch.” (Id.) Boynton filed an incident report against Petitioner for “insolence towards staff.” (Id.) On February 9, 2021, Petitioner had a BOP Center Discipline Committee (“CDC”) hearing with CDC staff member Ms. Ortiz and was found guilty. (Id. at 7, 12, 13.) He was returned to custody at MDC Brooklyn. (Id. at 6.) A conditional release date was set for April 6, 2021. (Id. at 1.)
The Federal Bureau of Prisons (“BOP”) contracts with residential reentry centers (“RRCs”) to provide assistance to inmates who are nearing release. See https://www.bop.gov/about/facilities/residential_reentry_management_centers.jsp. Defendant GEO Group provides rehabilitation programs at Bronx RRC. See https://www.reentryprograms.com/go/bronx-community-reentry-center.
Petitioner does not specify when he was returned to custody. But court records show that he was detained at MDC Brooklyn as early as February 19, 2021. (Id. at 14.)
Petitioner consistently denied calling Boynton a “bitch” and instead accused Boynton of attempting to assault him on January 28, 2021. (Id. at 7, 10.) On January 28, 2021, and January 29, 2021, Petitioner emailed Bronx RRC Counselor G. Ferrance and Director M. Cosme to dispute his incident report. (Id. at 2, 7, 10.) On January 29, 2021, Petitioner emailed the BOP Northeast Regional Office to report Boynton for attempted assault. (Id. at 6, 7.) On February 5, 2021, February 14, 2021, and February 18, 2021, Petitioner sought relief through the BOP Administrative Remedy Program by submitting BP-8 and BP-9 grievance forms to MDC Brooklyn staff. (Id. at 3, 7, 10, 15.) On February 19, 2021, Petitioner filed another appeal to MDC Brooklyn to be forwarded to Bronx RRC Community Corrections Manager P. McFarland. (Id. at 3, 11, 16.) On February 22, 2021, Petitioner also wrote a letter to McFarland to appeal his case (Id. at 17-19.) All of Petitioner's appeals were either ignored or adjudicated unfavorably, leading Petitioner to believe that the BOP and Bronx RRC were trying to cover up the employee misconduct. (Id. at 2, 3, 6, 10-12.)
Petitioner requests that the Court “issue a[ ] declaratory judgment stating” that: (1) Boynton attempted to assault Petitioner; (2) the BOP and Bronx RRC “fail[ed] to comply with their own agency regulations [to investigate Petitioner's report of employee misconduct]”; and (3) the BOP and Bronx RRC hindered Petitioner's attempt to pursue administrative remedies and violated his due process rights, leading to his “unlawful return [to] imprisonment.” (Id. at 8.)
On March 31, 2021, Petitioner filed a letter with the Court, alleging that MDC Brooklyn's “security [and] mail room staff [members] have been totally circumventing [and] depriving [him] of all incoming mail communications, including and specifically, special privileged legal mail [and] exhibit evidence documents [he has] had [his] family mail to [him].” (ECF 2, at 1.) As a result, Petitioner “[has] not received not one single notice from the Court in connection to [his] filing of [the habeas corpus petition].” (Id.) Petitioner believes that MDC Brooklyn interfered with his mail to retaliate against him for filing the habeas corpus petition. (Id.) Petitioner says he will file a notice of change of address upon release on April 6, 2021. (Id.) Petitioner has failed to file said notice, however, and he has not initiated any further contact with the Court, written or otherwise.
DISCUSSION
Petitioner's two filings with the Court are not models of clarity. It is unclear if Petitioner intends to style his filings solely as a 28 U.S.C. § 2241 petition for a writ of habeas corpus challenging his custody, a civil action for damages under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), or both. See Thompson v. Choinski, 525 F.3d 205, 210 (2d Cir. 2008) (noting that the court is unaware of any “basis . . . for the view that a petitioner may not seek relief under both a habeas statute and [42 U.S.C.] § 1983 in a single pleading.”); Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[Bivens] is the federal analog to suits brought against state officials under [§ 1983].”); Morales v. City of New York, 752 F.3d 234, 237 (2d Cir. 2014) (holding that district court properly construed § 1983 claims brought against federal employee as arising under Bivens). In light of Petitioner's pro se status, the Court considers his two filings together and construes them as seeking relief under both 28 U.S.C. § 2241 and Bivens.
A. Petition for Relief Under 28 U.S.C. § 2241
Habeas corpus review is available for federal prisoners “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A petition challenging the execution of a prisoner's sentence, such as “the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions, ” is properly brought under § 2241. Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001). Before Petitioner may seek relief through a petition for a writ of habeas corpus, however, he must show exhaustion of his administrative remedies. Although § 2241 does not expressly require exhaustion of administrative remedies, in this Circuit, exhaustion of administrative remedies is generally a prerequisite to habeas corpus relief under § 2241. See Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); U.S. ex rel. Scranton v. New York, 532 F.2d 292, 294 (2d Cir. 1976).
The Petition does not demonstrate that Petitioner has exhausted his available administrative remedies within the BOP. While courts have found that § 2241's exhaustion requirement is “amenable to judge-made exceptions, ” McPherson v. Lamont, 457 F.Supp.3d 67, 76 (D. Conn. 2020) (quoting Ross v. Blake, 136 S.Ct. 1850, 1857 (2016)), the Court need not decide whether any of the exceptions applies. BOP records indicate that Petitioner was released from MDC Brooklyn on April 6, 2021, so Petitioner's request for release is now moot. The Court therefore denies Petitioner's habeas corpus petition without prejudice.
Petitioner's BOP Register Number is 67025-054. (ECF 1, at 1.)
Article III, Section 2, of the Constitution allows federal courts to hear only “cases” or “controversies.” U.S. Const. art. III, § 2, cl. 1; see Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 64 (1997). Mootness has been described as “‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).'” See id. at 68 n.22 (quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980)). “A party's case or controversy becomes moot . . . when the injury is healed and only prospective relief has been sought ....” Alexander v. Yale Univ., 631 F.2d 178, 183 (2d Cir. 1980).
B. Claims against MDC Brooklyn Staff
Petitioner alleges that MDC Brooklyn staff intercepted all his mail concerning his habeas corpus petition. To the extent that Petitioner's allegations can be construed as raising claims under Bivens, venue is not appropriate in this Court. Under the general venue provision, a civil action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . .; or (3) if there is no district in which an action may otherwise be brought as provided in this section,
any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.28 U.S.C. § 1391(b). The events underlying Petitioner's claims occurred in MDC Brooklyn, which is located in the Eastern District of New York. See 28 U.S.C. § 112(c).
If an action is filed in the wrong district court, the court “shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Because it is unclear whether Petitioner can state a valid claim under Bivens and because he has failed to notify the Court of a change of mailing address, and has not initiated any further contact with the Court, written or otherwise, the Court declines to transfer Petitioner's claims against MDC Brooklyn staff to the Eastern District of New York and therefore dismisses the claims without prejudice. See Fields v. Beem, No. 13-CV-0005, 2013 WL 3872834, at *2 (N.D.N.Y. July 24, 2013) (“The failure of a litigant to comply with the requirement to notify a court of a change of address is sufficient to justify dismissal of a plaintiff's complaint.”) (collecting cases).
Under Ziglar v. Abbasi, unless a Bivens claim bears some resemblance to one of the three types of Bivens claims previously recognized by the Supreme Court, a court must hold that the claim constitutes a new Bivens context. 137 S.Ct. 1843, 1860 (2017). If the claim constitutes a new Bivens context, a court must conduct “a special factors analysis, ” id., that is, it must determine “whether [it] is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing [such] a damages action to proceed, ” id. at 1857-58. Here, Petitioner's Bivens claim against MDC Brooklyn staff does not appear to fall within any of the three recognized Bivens contexts. The Court notes that even if a court were to find that a Bivens remedy is available, Petitioner has failed to allege any facts describing how Defendant Warden Tellez was personally involved in intercepting his mail. See id. at 1860 (holding that Bivens relief is available only against federal officials who are personally liable for the alleged constitutional violations and is not designed to hold officers responsible for acts of their subordinates); Turkmen v. Hasty, 789 F.3d 218, 233 (2d Cir. 2015).
C. Claims against Bronx RRC Staff
Petitioner alleges that Boynton attempted to assault him on January 28, 2021, and Bronx RRC staff subsequently failed to follow its agency regulations to investigate the alleged employee misconduct. To the extent that Petitioner's allegations can be construed as bringing a Bivens claim against Bronx RRC staff for due process violations under the Fifth Amendment, the Court dismisses the claim without prejudice.
To proceed with a petition for a writ of habeas corpus in this Court, a petitioner must either pay the $5.00 filing fee or request authorization to proceed in forma pauperis (“IFP”). See 28 U.S.C. §§ 1914, 1915. To proceed with a federal civil action in this Court, or any other federal district court, a petitioner must either pay $402.00 in fees - a $350.00 filing fee plus a $52.00 administrative fee - or to request permission to proceed IFP. Id. A plaintiff cannot be excused from paying the $402.00 filing fee by bringing civil rights claims and habeas claims in a single pleading. See, e.g., Taylor v. Sup. Ct. of N.Y., No. 13-CV-4621, 2013 WL 5537133, at *3 (E.D.N.Y. Oct. 7, 2013).
Here, Petitioner paid the $5.00 filing fee for his habeas corpus petition. But he has not complied with the filing fee requirements for bringing Bivens claims. Moreover, because Petitioner has not initiated any further contact with the Court, written or otherwise, it is unclear whether he wishes to proceed with these claims. The Court therefore dismisses Petitioner's due process claims against Bronx RRC staff without prejudice. Should Petitioner wish to pursue his claims against Bronx RRC staff, he may do so by filing a new civil action in this Court, which must be accompanied by the $402.00 in filing fees or a completed and signed application to proceed IFP.
A plaintiff bringing a Bivens claim must allege that he has been deprived of a constitutional right by a federal agent acting under color of federal authority. Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (citing Bivens, 403 U.S. at 389). In dismissing Petitioner's claims against Bronx RRC staff, the Court makes no determination about whether Bronx RRC staff were acting under color of federal law.
CONCLUSION
The petition for a writ of habeas corpus, filed under 28 U.S.C. § 2241, is denied as moot. The Court dismisses without prejudice Petitioner's claims against MDC Brooklyn and Bronx RRC staff.
If Petitioner wishes to pursue a claim for monetary damages for wrongful imprisonment beyond his release date, he may file a new civil action in the United States District Court for the Eastern District of New York.
The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket.
The Court's docket reflects that Petitioner's last known address is MDC Brooklyn, but he is no longer detained there.
Because the petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.