Opinion
Civil No. 03-1447-HA.
August 31, 2004
Stephen R. Sady, Chief Deputy Federal Defender, Portland, OR, Attorney for Petitioner.
Karin J. Immergut, United States Attorney, Craig J. Casey, Assistant United States Attorney, Portland, Oregon, Attorneys for Respondent.
OPINION AND ORDER
Petitioner filed a petition for writ of habeas corpus on February 27, 2004 (Doc. #29) pursuant to 28 U.S.C. § 2241, and a Motion for Summary Judgment on April 8, 2004 (Doc. #39). The court notes at the outset that respondent did not controvert any of the statements provided in petitioner's Concise Statement of Material Facts. Accordingly, pursuant to Local Rule 56.1(f), petitioner's statements as provided in his concise statement are deemed admitted.
Petitioner asserts that the Bureau of Prisons (BOP) violated his procedural due process rights by excluding him from applying to the Residential Drug Abuse Treatment Program (DAP) for six months. For the following reasons, petitioner's writ and Motion for Summary Judgment are denied. In addition, plaintiff's related Bivens action is hereby dismissed as moot. See CV 04-440-HA.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is being housed at a community correctional facility in Sacramento, California. He was convicted in the Eastern District of California for possessing with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). On October 23, 1998, petitioner was sentenced to 108 months of imprisonment to be followed by a sixty-month term of supervised release. Subsequent to his sentencing, petitioner was sent to the federal correctional facility in Greenville, Illinois, before being transferred to the Taft Correctional Institute (Taft) on August 13, 1999. Three years later, he was transferred to the Federal Correctional Institution in Sheridan, Oregon (FCI Sheridan). While at Taft, petitioner was found provisionally eligible for participation in DAP. However, Taft did not offer the program, and because petitioner was not within thirty-six months of his projected release date, he was not officially admitted into a DAP class at that time. On January 25, 2002, petitioner was found eligible to participate in DAP and was placed on the wait list. Petitioner remained on the wait list for over a year as program enrollment was at capacity.
Ordinarily, an inmate must be within thirty-six months of release to be eligible for participation in DAP. Program Statement 5330.10, Inmate Drug Abuse Programs Manual.
In March 2003, Dr. Neil Solomon, the DAP coordinator at FCI Sheridan, was informed that twenty-five spaces had become available in the South East Region of the BOP (Mississippi, Alabama, Georgia, Florida, South Carolina, and Puerto Rico). On March 16, 2003, Dr. Solomon approached petitioner with the option of enrolling in DAP at one of the facilities located in the South East Region. Petitioner declined the transfer option, but notified Dr. Solomon that he still wished to participate in DAP at FCI Sheridan. Dr. Solomon told petitioner that he had twenty-four hours to reconsider his election. The following day, Dr. Solomon again offered petitioner the option of transferring to another facility where a position in DAP was available. Petitioner declined.
Accordingly, Dr. Solomon placed petitioner in DAP decline status and informed petitioner that he could re-apply to DAP in six months. Dr. Solomon contends this was in accordance with his normal practice and the DAP Program Statements, which permitted the DAP Coordinator to determine when and how an inmate could apply for re-admission to the program. On March 26, 2003, after attempting to informally resolve the situation, petitioner filed a Request for Administrative Remedy Form (BP-9), requesting immediate reinstatement to the DAP wait list. The BOP denied the request. Petitioner appealed the decision to the Western Regional Office of the BOP. The appeal was denied. On May 19, 2003, petitioner pursued his final appeal to the Central Office of the BOP, which was also denied.
On September 5, 2003, petitioner was again found eligible for placement in DAP and was placed on the wait list. On November 10, 2003, petitioner was placed in the DAP class at FCI Sheridan. He completed the program on August 9, 2004, and the following day was transferred to a community correction center in Sacramento, California. Petitioner is expected to complete this transitional portion of the program in the allotted time frame, at which time he will be released from BOP custody to begin service of his supervised released term of sixty months. Petitioner argues that had been allowed to enroll in DAP earlier, he would have been subject to release in June 2004.
STANDARDS
Habeas corpus is the exclusive remedy for a prisoner who challenges the duration of his confinement and seeks immediate or speedier release. Heck v. Humphrey, 512 U.S. 477, 481 (1994); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). The Federal Rules of Civil Procedure apply to habeas proceedings "to the extent that the practice in such proceedings is not set forth in statutes of the United States . . . and has heretofore conformed to the practice in civil actions." Fed.R.Civ.P. 81(a)(2). See also Blackledge v. Allison, 431 U.S. 63, 80-81 (1977) (recognizing that summary judgment is appropriate in habeas proceedings); 28 U.S.C. § 2243. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
ANALYSIS
A procedural due process claim has two elements: (1) deprivation of a constitutionally protected liberty or property interest; and (2) denial of adequate procedural safeguards. McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002) (citation omitted). In addressing petitioner's claim that his due process rights were violated when the BOP suspended his application to DAP for six months, the court begins by examining whether petitioner had a constitutionally protected liberty interest in immediate application into the program.
In 1990, Congress enacted amendments to 18 U.S.C. § 3621 requiring the BOP to allow "every prisoner with a substance abuse problem . . . the opportunity to participate in appropriate substance abuse treatment. . . ." As an incentive to participate in a treatment program, Congress granted the BOP the discretion to reduce, by up to one year, the sentence of prisoners convicted of nonviolent offenses who had successfully completed the treatment program. 18 U.S.C. § 3621(e)(2)(B).
The Due Process Clause "does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner" and does not, standing alone, confer a liberty interest in freedom from state action taken within the sentence imposed. Meachum v. Fano, 427 U.S. 215, 222 (1976). Were it otherwise, the objectives of prison management would be undermined. See Sandin v. Conner, 515 U.S. 472, 482 (1995) (recognizing that "federal courts ought to afford appropriate deference and flexibility to [prison] officials trying to manage a volatile environment") (citations omitted). Although it is undisputed that prisoners do not shed their constitutional rights at the prison gates, "these interests [are] generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause . . . nonetheless impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 483-4.
Following the Supreme Court's line of reasoning, the Ninth Circuit has rejected the argument that 18 U.S.C. § 3621 creates a due process liberty interest in the one-year sentence reduction. Jacks v. Crabtree, 114 F.3d 983, 986 n. 4 (9th Cir. 1997) (citation omitted). The language of Section 3621 is written in nonmandatory terminology that leaves the BOP with the broad discretion to grant or deny the one-year reduction. Furthermore, denial of the one-year reduction does not impose any atypical or significant hardships on the prisoner in relation to the ordinary incidents of daily prison life. Id. "In fact, denial merely means that the inmate will have to serve out his sentence as expected." Id. In addition, inmates do not have a constitutional right to participate in a particular treatment program, to be housed in a particular institution, or to be transferred to another institution to participate in a treatment program, as long as such action is not retaliatory in nature. See, e.g., Montane v. Hayme, 427 U.S. 236 (1976); Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (delay of desirable aids to rehabilitation, such as drug treatment programs, do not violate the Constitution); C.F.R. § 550.56(b) (generally an inmate does not have the right to participate in DAP at the institution of his or her choosing).
Petitioner's arguments that the BOP violated his due process rights by sanctioning him without notice from the DAP wait list for six months are without merit. Petitioner mischaracterizes the nature of the six-month abeyance as a sanction to punish misconduct; wherein fact there is no evidence that petitioner's decision was not allowed or that the subsequent wait time to re-apply was at all punitive. Cf., Wolff v. McDonnell, 418 U.S. 539 (1974) (holding that due process required that prisoners who were at risk of losing good-time credits, which are granted as a matter of right, not privilege, are entitled to notice and an opportunity for a hearing before good-time credits may be rescinded); see also Seehausen v. Van Buren, 243 F.Supp.2d 1165 (D. Or. 2002) (holding that imposing discipline on the prisoner for violating a provision of the prison's telephone policy of which he did not have fair notice infringed on his due process rights).
In the instant action, petitioner committed no misconduct; therefore, the BOP's decision to cause petitioner to wait six months before re-applying to the program cannot appropriately be characterized as a sanction. As explained above, the BOP has broad discretion to carry out its mandate under the statute. It was not an abuse of this discretion to determine that an inmate who declines transfer to a treatment program at another facility must wait six months before re-applying to the treatment program located at the facility of his choosing.
Petitioner does not make any arguments that his proposed transfer to the South East Region or the six-month abeyance was retaliatory in nature. Further, the BOP's actions did not impose any atypical or significant hardships on petitioner in relation to the ordinary incidents of prison life. Based on the BOP's broad discretion to manage its facilities, the BOP did not have to provide petitioner the option of choosing to decline the transfer to the South East Region. Moreover, the BOP retains the prerogative to choose whether an inmate will be allowed to re-apply to DAP, and the attendant circumstances of that re-application. Accordingly, the court concludes that petitioner did not have a liberty interest in immediate re-application to DAP after he declined to transfer to an available program at a different institution.
The court concludes that it was reasonable for Dr. Solomon to place petitioner on DAP decline status after petitioner refused the transfer. It is irrelevant whether petitioner declined to participate in DAP at any BOP institution or whether he declined to participate in DAP at a BOP institution in the South East Region. Provided that petitioner successfully completes the balance of the program, petitioner will have received nearly a five-month reduction in his sentence. If petitioner had been placed in the next available class after March 6, 2003, he would have possibly received a nine-month reduction in his sentence. This four-month difference in petitioner's sentence reduction is the result of petitioner's decision and he cannot now reclaim the benefit that he forewent.
CONCLUSION
For the foregoing reasons, petitioner's petition for writ of habeas corpus (Doc. #29) and Motion for Summary Judgment (Doc. #39) are DENIED.
IT IS SO ORDERED.