Opinion
C. A. 4:23-158-HMH-TER
01-19-2023
Gregory Allen Bonnie, #11192-171, a/k/a Gregory Allen Bonnie, #21082, Petitioner, v. Warden Dunbar, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge.
Petitioner is a federal prisoner confined at FCI Williamsburg (ECF No. 1). Petitioner was sentenced by this court; however, his action is not concerning his sentence. He is seeking habeas relief under § 2241 and proceeding in this action pro se. 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 is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings pursuant to the procedural provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal.
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. Following the required initial review, it is recommended that the Petition submitted in this case should be dismissed.
DISCUSSION
Petitioner alleges he is not contesting his conviction, sentence, any disciplinary action, sentence calculation, or loss of credits. (ECF No. 1 at 1-2). Petitioner attaches responses at every level of the BOP administrative grievance process. (ECF No. 1-1). Petitioner's argument is that he has not received First Step Act program incentives in accordance with BOP Program Statement 5220.01. (ECF No. 1 at 9). Petitioner's request for relief is to receive incentives for compliance and participation in EBRRs(evidence based recidivism reduction) and PAs(productive activities). (ECF No. 1 at 10-11). Petitioner's attachments show his acknowledgment that his conviction disqualifies him from earning time credits under the First Step Act; Petitioner is not seeking any time credits or change to the duration of his confinement. (ECF Nos. 1, 1-1); see also18 U.S.C. § 3632(d)(4)(D)..
Because January 15, 2022 has now passed, the First Step Act and its mandated programs are now fully in effect and required to be implemented. See Rodriguez v. Knight, No. 1:21-459-DCN-SVH, 2022 WL 796815, at *2 (D.S.C. Mar. 16, 2022)(declining to adopt report and recommendation because January 2022 deadline had passed). The First Step Act included incentives outside of good time credits:
(d) Evidence-based recidivism reduction program incentives and productive activities rewards.--The System shall provide incentives and rewards for prisoners to participate in and complete evidence-based recidivism reduction programs as
follows:
(1) Phone and visitation privileges.--A prisoner who is successfully participating in an evidence-based recidivism reduction program shall receive-
(A) phone privileges, or, if available, video conferencing privileges, for up to 30 minutes per day, and up to 510 minutes per month; and
(B) additional time for visitation at the prison, as determined by the warden of the prison. ...
(3) Additional policies.--The Director of the Bureau of Prisons shall develop additional policies to provide appropriate incentives for successful participation and completion of evidence-based recidivism reduction programming. The incentives shall include not less than 2 of the following:
(A) Increased commissary spending limits and product offerings.
(B) Extended opportunities to access the email system.
(C) Consideration of transfer to preferred housing units (including transfer to different prison facilities).
(D) Other incentives solicited from prisoners and determined appropriate by the Director.18 U.S.C. § 3632(d). These are the incentives Petitioner alleges he is entitled to and the incentives Petitioner requests in his request for relief.
The proper remedy lies in habeas corpus only if “success in [an] action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). If success-essentially playing out the hypothetical grant of relief- “would not necessarily spell immediate or speedier release for the prisoner,” habeas corpus is not the appropriate remedy. Id. at 81. If the court were to grant Petitioner here his requested relief of receipt of incentives of: financial award, increased commissary spending limit, and additional phone minutes, such grant of relief would not afford Petitioner any speedier release or change the fact or duration of his confinement. As a result, this court lacks habeas corpus subject matter jurisdiction to consider Petitioner's claims. See also Bagley v. Dunlap, No. 5:17-CV-00671-TLW-KDW, 2017 WL 5054395, at *3 (D.S.C. Apr. 19, 2017), report and recommendation adopted, 2017 WL 5000719 (D.S.C. Nov. 1, 2017).
To the extent Petitioner now is considering filing a Bivens action, there has been no recognized Bivens claim in this context and the BOP's administrative grievance process has been found to be an alternative remedial structure which would counsel against any recognition of a Bivens claim in this context. Clemmons v. United States, No. 0:16-cv-1305-DCC, 2018 WL 4959093, at *3-*4 (D.S.C. Oct. 15, 2018). Any future action under Bivens as to this exact issue would be subject to summary dismissal as well.
RECOMMENDATION
Accordingly, it is recommended that the Petition be dismissed without prejudice and without requiring the respondent to file a return.
See Platts v. O'Brien, 691 Fed.Appx. 774 (4th Cir. June 22, 2017) (citing S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for ... [a] defect in subject matter jurisdiction[ ] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”).
IT IS SO ORDERED.
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
Post Office Box 2317
Florence, South Carolina 29503
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).