Moreover, any such habeas challenge would be limited to the issue of whether the BOP abused its discretion. See, e.g., Crawford v. Nicklin, Civ. No. 13-2462, 2014 WL 538699, at *6 (D. Minn. Feb. 11, 2014). ORDER
The administrative remedy procedure of the BOP involves first presenting a claim to staff, then if unsuccessful, filing a formal grievance with the Warden. Crawford v. Nicklin, No. Civ. 13-2462, 2014 WL 538699, at *3 (D. Minn. Feb. 11, 2014). A prisoner can further appeal to the BOP General Counsel before resorting to a § 2241 petition.
Several courts in this district have held that § 3625 precludes judicial review of the BOP's discretionary decisions under §§ 3621 and 3624 in the context of RRC and home placement. See Simon v. LaRiva, Case No. 16-cv-146 (ADM/TNL), 2016 WL 1626819, at *6 (D. Minn. Mar. 10, 2016) ("The BOP's decision ultimately to place Petitioner in home confinement for three months, rather than six months, was discretionary and this Court lacks subject matter jurisdiction over Petitioner's challenge to the BOP's application of the § 3621(b) factors and other considerations in reaching that decision."); Crawford v. Nicklin, Civil No. 13-2462, 2014 WL 538699, at *7 (D. Minn. Feb. 11, 2014) ("Courts in this District have also found § 3625 precludes judicial review of BOP discretionary decisions under § 3621.") (collecting cases); Barakat v. Fisher, No. 13-1296, 2013 WL 6058932, at *1 (D. Minn. Nov. 18, 2013) ("To the extent Barakat challenges the particular determination in his case of the RRC placement, the Court lacks subject matter jurisdiction to review the [BOP's] discretionary decision . . . ."); Ambrose v. Jett, No. 13-2343, 2013 WL 6058989, at *7 (D. Minn. Nov. 15, 2013) ("[T]his Court does not have jurisdiction to review the ultimate discretionary decision by the BOP under §§ 3621(b) or 3264(c) to place Ambrose in an RRC or in home confinement placement."). Therefore, to the extent that Petitioner seeks review of the BOP's placement decision, this Court lacks jurisdiction to review that decision.
Thus, it is "apparent that § 3625 precludes judicial review of agency adjudicative decisions," id., and courts in this district have accordingly held that § 3625 precludes judicial review of the BOP's discretionary decisions under § 3621. See, e.g., Crawford v. Nicklin, No. 13-cv-2462 (JRT/SER), 2014 WL 538699, at *7 (D. Minn. Feb. 11, 2014) ("Courts in this District have also found § 3625 precludes judicial review of BOP discretionary decisions under § 3621."); Davis v. English, No. 12-cv-1483 (JNE/LIB), 2013 WL 1149526, at *6 (D. Minn. Feb. 27, 2013); Rios v. Fisher, No. 10-cv-4020 (PJS/TNL), 2012 WL 2814338, at *3 (D. Minn. June 19, 2012). As the Ninth Circuit explained in a case involving expulsion from RDAP, a prisoner's claim "that he was wrongfully expelled from RDAP, as well as his request for reinstatement into RDAP and for a twelve-month reduction in his sentence, are matters properly left to the BOP's discretion."
See, e.g., Simon v. LaRiva, Case No. 16-cv-146 (ADM/TNL), 2016 WL 1626819, at *4-*6 (D. Minn. Mar. 10, 2016) ("So long as the BOP made an individualized determination in accordance with the appropriate considerations, this Court does not have jurisdiction to evaluate the BOP's exercise of its discretion."), report and recommendation adopted by 2016 WL 1610603 (D. Minn. Apr. 21, 2016); Crawford v. Nicklin, Case No. 13-cv-2462 (JRT/SER), 2014 WL 538699, at *7-*8 (D. Minn. Feb. 11, 2014) ("Courts in this District have also found § 3625 precludes judicial review of BOP discretionary decisions under § 3621."); Ambrose v. Jett, Case No. 13-cv-2343 (PJS/JSM), 2013 WL 6058989, at *7 (D. Minn. Nov. 15, 2013) ("[T]his Court does not have jurisdiction to review the ultimate discretionary decision by the BOP under §§ 3621(b) or 3264(c) to place Ambrose in an RRC or in home confinement placement."). Accordingly, Ground Three of Berry's Petition, a claim which asserts that the BOP arbitrarily and capriciously abused its discretion and exceeded statutory authority in making Berry's RRC placement decision, cannot be entertained by this Court.
Several courts in this district have held that § 3625 precludes judicial review of the BOP's discretionary decisions under §§ 3621 and 3624 in the context of RRC and home placement. See Simon v. LaRiva, No. 16-cv-146 (ADM/TNL), 2016 WL 1626819, at *6 (D. Minn. Mar. 10, 2016) ("The BOP's decision ultimately to place Petitioner in home confinement for three months, rather than six months, was discretionary and this Court lacks subject matter jurisdiction over Petitioner's challenge to the BOP's application of the § 3621(b) factors and other considerations in reaching that decision."); Crawford v. Nicklin, No. 13-2462 (JRT/SER), 2014 WL 538699, at *7 (D. Minn. Feb. 11, 2014) ("Courts in this District have also found § 3625 precludes judicial review of BOP discretionary decisions under § 3621.") (collecting cases); Barakat v. Fisher, No. 13-1296 (JNE/SER), 2013 WL 6058932, at *1 (D. Minn. Nov. 18, 2013) ("To the extent Barakat challenges the particular determination in his case of the RRC placement, the Court lacks subject matter jurisdiction to review the [BOP's] discretionary decision . . . ."); Ambrose v. Jett, No. 13-2343 (PJS/JSM), 2013 WL 6058989, at *7 (D. Minn. Nov. 15, 2013) ("[T]his Court does not have jurisdiction to review the ultimate discretionary decision by the BOP under §§ 3621(b) or 3264(c) to place Ambrose in an RRC or in home confinement placement."). As noted above, the five factors for BOP placement review are as follows: (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence concerni
Several courts in this district have held that § 3625 precludes judicial review of the BOP's discretionary decisions under §§ 3621 and 3624 in the context of RRC and home placement. See Simon v. LaRiva, Case No. 16-cv-146 (ADM/TNL), 2016 WL 1626819, at *6 (D. Minn. Mar. 10, 2016) ("The BOP's decision ultimately to place Petitioner in home confinement for three months, rather than six months, was discretionary and this Court lacks subject matter jurisdiction over Petitioner's challenge to the BOP's application of the § 3621(b) factors and other considerations in reaching that decision."); Crawford v. Nicklin, Civil No. 13-2462, 2014 WL 538699, at *7 (D. Minn. Feb. 11, 2014) ("Courts in this District have also found § 3625 precludes judicial review of BOP discretionary decisions under § 3621.") (collecting cases); Barakat v. Fisher, No. 13-1296, 2013 WL 6058932, at *1 (D. Minn. Nov. 18, 2013) ("To the extent Barakat challenges the particular determination in his case of the RRC placement, the Court lacks subject matter jurisdiction to review the [BOP's] discretionary decision . . . ."); Ambrose v. Jett, No. 13-2343, 2013 WL 6058989, at *7 (D. Minn. Nov. 15, 2013) ("[T]his Court does not have jurisdiction to review the ultimate discretionary decision by the BOP under §§ 3621(b) or 3264(c) to place Ambrose in an RRC or in home confinement placement."). As noted above, the five factors for BOP placement review are as follows: (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence concerning the purposes fo
§§ 542.15, 542.18.Crawford v. Nicklin, No. 13-CV-2462 (JRT/SER), 2014 WL 538699, at *3 (D. Minn. Feb. 11, 2014). There is no evidence that Jones has done any of this—that is, no evidence that he presented his claim to staff, no evidence that he filed a formal grievance with his warden, no evidence that he appealed to the Regional Director, and no evidence that he appealed to the Central Office. Because Jones has failed to exhaust his administrative remedies, his habeas action must be dismissed without prejudice.
See, e.g., Barakat v. Fisher, No. 13-cv-1296 (JNE/SER), 2013 WL 6058932, at*6 (D. Minn. Nov. 18, 2013) ("The SCA does not mandate the BOP grant any time in [community confinement]"); Rounds v. Nicklin, No. 13-cv-440 (MJD/AJB), 2013 WL 3088628, at *3 (D. Minn. June 18, 2013). Courts in this district, including the Court that denied Mr. Simon's previous habeas petition, have held that 18 U.S.C. § 3625 specifically precludes judicial review of the BOP's discretionary decisions regarding community confinement placement, as long as they are based upon the statutorily required individualized assessment. See, e. g., Simon v. LaRiva, No. 16-cv-146-ADM-TNL, 2016 WL 1610603, at *1 (D. Minn. Apr. 21, 2016); Crawford v. Nicklin, No. 13-cv-2462-JRT-SER, 2014 WL 5386999, *7-8 (D. Minn. Feb. 11, 2014). 2.
Id. Administrative remedies have been exhausted when the inmate either has heard from the General Counsel or once the General Counsel's time to reply has expired, including any extensions that may have been granted. See id. §§ 542.15, .18; Crawford v. Nicklin, No. 13-cv-2462 (JRT/SER), 2014 WL 538699, at *3 (D. Minn. Feb. 11, 2014). Presently, Petitioner has only completed the first tier. Petitioner first informally tried to have the reduction in the duration of his home confinement addressed through a letter to his Unit Team. (Am. Pet., p. 6.) After failing to resolve the issue informally, Petitioner submitted his BP-9 on December 22, 2015, to Respondent. (Ex. B to Am. Pet.) On January 15, 2016, Respondent denied Petitioner's BP-9. (Ex. D to Am. Pet.) On January 25, 2016, Petitioner mailed his BP-10 appealing the denial of his BP-9. (Am. Pet., p. 8; see Ex. F to Am. Pet.) Currently, Petitioner has not received a response from the Regional Director regarding his appeal. Thus, Petitioner has not fully exhausted his administrative remedies.