Opinion
Civil Action 23-166J
04-16-2024
ENRIQUE QUIJADA Petitioner, v. MICHAEL UNDERWOOD, Warden, Respondent.
Enrique Quijada 10624-509 Loretto Federal Correctional Institution All counsel of record (via CM/ECF).
Enrique Quijada 10624-509 Loretto Federal Correctional Institution
All counsel of record (via CM/ECF).
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that Petitioner's self-styled “Supplement to the Petitioner's Motion for Relief Pursuant to 28 U.S.C. 2241,” (the “Supplement”), ECF No. 29, be construed as a motion for preliminary injunction, and denied.
II. REPORT
Petitioner Enrique Quijada (“Petitioner”) is a federal prisoner currently incarcerated at the Federal Correctional Institution at Loretto (“FCI-Loretto”) in Cresson, Pennsylvania. Petitioner's self-styled “Petitioner [szc] under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody,” (the “Petition”) attacks the Bureau of Prisons' calculation and application of Earned Time Credits (“ETCs”) under the First Step Act (“FSA”), Pub. L. No. 115391, 132 Stat. 5208 (2018), to Petitioner's sentence. ECF No. 9 at 1-2.
This case has evolved significantly since it began. At the time of filing, Petitioner asserted - and provided supporting documentation - that he was denied ETCs at least in part because of an immigration detainer. ECF No. 9-3 at 2-3; ECF No. 9-4 at 10. A Service Order was issued on September 11, 2023, in which Respondent was directed to “provide briefing on whether and how Petitioner's immigration status and proceedings (or lack thereof) affect the accrual and application of Earned Time Credits under the statutory language of the First Step Act.” ECF No. 11 at 1.
Rather than file an answer, Respondent submitted a “Notice of Suggestion of Mootness.” ECF No. 16. Petitioner responded that his Petition was not moot, ECF No. 20, and the subsequent briefing, ECF Nos. 22 and 24, strayed from Respondent's initial assertion that this case was moot. Accordingly, Respondent was ordered to file an all-inclusive answer consistent with the Service Order. ECF No. 25. Respondent answered the Petition on March 12, 2024. ECF No. 26. Petitioner's Traverse was due on April 12, 2024. ECF No. 27. As of the date of this Report and Recommendation, Petitioner has not filed a traverse.
On April 10, 2024, Petitioner submitted the Supplement. ECF No. 29. The Supplement is not responsive to the Answer. Instead, it indicates that Petitioner was served a so-called “Final Administrative Removal Order” on April 5, 2024. Id. at 1; ECF No. 29-1 at 1. In the Supplement, Petitioner asks this Court to order the BOP and ICE “to hold him in FCI Loretto, in general population,” until this Court has ruled on his underlying habeas petition - which seeks the application of ETCs. Accordingly, the Supplement is properly construed as a motion for preliminary injunction.
See INA § 238, 8 U.S.C. § 1228. See also 8 C.F.R. § 238.1.
“[T]he grant of injunctive relief is an ‘extraordinary remedy which should be granted only in limited circumstances.'” AT&T v, Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994) (quoting Frank's GMC Truck Center, Inc, v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)). A party seeking a preliminary injunction must show: “(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Ball v. Beard, 396 Fed.Appx. 826, 827 (3d Cir. 2010) (quoting Kos Pharm., Inc, v. Andrx Corp, 369 F.3d 700, 708 (3d Cir. 2004)). “In order to support a preliminary injunction, plaintiff must show both a likelihood of success on the merits and a probability of irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 90-91 (3d Cir. 1992). It “frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis deleted).
Here, Petitioner has not shown a likelihood of success on the merits of the injunctive relief that he seeks in the instant motion.
First, as to remaining in general population, it is well established that prisoners have no constitutional right to a particular housing location or custody level while under the jurisdiction of correctional authorities. Mundo-Violante v. Warden Loretto FCI, 654 F. App'x. 49, 51 (3d Cir. 2016) (citing cases).
Second, with respect to remaining at FCI-Loretto, the United States Court of Appeals for the Third Circuit has held that “habeas corpus cannot be used to challenge a transfer between prisons ... unless the custody in which the transferred prisoner will find himself when transferred is so much more restrictive than his former custody that the transfer can fairly be said to have brought about ... a quantum change in the level of custody.” Ganim v. Federal Bureau of Prisons, 235 Fed.Appx. 882, 884 (3d Cir. 2007) (internal quotation marks and citation omitted). Petitioner's Supplement does not indicate that any change to his level of custody would occur if he were to be transferred.
Moreover, even if Petitioner were to be transferred outside of the Western District of Pennsylvania, this Court would retain jurisdiction over this Petition because Petitioner was in custody here when it was filed. Anariba v. Dir. Hudson Cty. Corr. Ctr, 17 F.4th 434, 446 (3d Cir. 2021) (district court retained jurisdiction over § 2241 petition even after government transferred petitioner out of district because court already had acquired jurisdiction over petitioner's properly filed habeas petition that named his then-immediate custodian, and noting that “passing about of the body of a prisoner from one custodian to another after a writ of habeas corpus has been applied” does not defeat the court's jurisdiction to consider the merits of the habeas petition). As such, Petitioner's Supplement provides no basis to support the relief that he requests.
It also is noteworthy that Petitioner has not indicated that the Bureau of Prisons actually intends to transfer him or change his custody status prior to the expiration of his current sentence. Because the “risk of irreparable harm must not be speculative[,]” Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3d Cir. 2000) (citation omitted), Petitioner also has failed to establish a that he will suffer irreparable harm if an injunction is denied.
Because Petitioner has failed to show a likelihood of success on the merits or that he will suffer irreparable harm, his requested injunction should be denied.
III. CONCLUSION.
For the foregoing reasons, it is respectfully recommended that the Supplement, ECF No. 29, be construed as a motion for preliminary injunction and denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v, Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
cc: Hon. Stephanie L. Haines, United States District Judge