Opinion
Civil No. 01-832 (JBS).
June 24, 2002
Augustine Banks, Reg. No. 22020-038, Fort Dix, NJ, Petitioner pro se.
Christopher J. Christie, United States Attorney, By: John Andrew Ruymann, Assistant U.S. Attorney, Trenton, NJ, Attorneys for Respondent.
OPINION
This matter comes before the Court upon the United States's motion to dismiss petitioner Augustine Banks' application for writ of habeas corpus under 28 U.S.C. § 2241 following an Order dismissing Petitioner's motion for summary judgment. Petitioner complains that Respondent erroneously used undocumented information, specifically a possible open warrant for unpaid child support, to prevent Petitioner from participating in certain prison rehabilitation programs. Petitioner seeks a court order enjoining the Bureau of Prisons (BOP) from denying Petitioner access to those programs. Alternatively, Petitioner seeks an order compelling the BOP to turn over documents that were used to make their decision affecting Petitioner. For the reasons stated herein, dismissal of Petitioner's application is warranted for two reasons proffered by Respondent: (1) Petitioner failed to exhaust his administrative remedies before filing his application, and (2) Petitioner is not constitutionally or statutorily entitled to the relief he seeks. Therefore, Petitioner's § 2241 application will be dismissed.
BACKGROUND
Petitioner Augustine Banks was sentenced to 18 months imprisonment and three years supervised release by the United States District Court for the Middle District of Tennessee for his conviction of making fraudulent statements under 26 U.S.C. § 7204, false statements under 18 U.S.C. §§ 1001 1002, and false, fictitious or fraudulent claims and aiding abetting thereof. (Public Information Inmate Data Sheet, Resp't's Br. Ex. 1.) On July 14, 2000, Petitioner began serving his sentence with a projected release date of November 1, 2001, via good conduct time, and a statutory release date of January 10, 2002. (Id.)
Petitioner was presumably convicted for this offense under 18 U.S.C. § 287, although the record does not so clearly indicate.
On February 26, 2001, Petitioner submitted the present petition to this Court for writ of habeas corpus under 28 U.S.C. § 2241. At the time petition was filed, Petitioner was being housed at the Federal Correctional Institution at Fort Dix, New Jersey (FCI Fort Dix). (Id.) Petitioner's contention is that Respondent violated his federal constitutional and statutory rights by using a "possible open warrant" for unpaid child support from the State of Michigan to deny Petitioner access to federal prison rehabilitation programs (e.g., half-way house). (Hab. Pet., 2/26/01, at 3.) Petitioner seeks an injunction from this Court preventing Respondent from denying Petitioner access to those rehabilitation programs and in the alternative specific performance in the form of an order compelling Respondent to provide Petitioner with the alleged open warrant or documents in his file used to make the determination against him. (Id.)
There is some confusion concerning Petitioner's arrival date at the FCI Fort Dix facility. According to the declaration of Petitioner's Unit Manager at FCI Fort Dix, Petitioner arrived on October 20, 2000. (Hughes Decl., Resp't's Br. Ex. 1.) According to Respondent's brief, Petitioner was designated to FCI Fort Dix on July 14, 2000. (Resp't's Br., 4/27/01, at 3; Public Information Inmate Data Sheet, Resp't's Br. Ex. 1.)
This Court has already dismissed as respondents the State of Michigan, Beverly Coats, and Friends of the Court Wayne County leaving Nancy Bailey, the Warden of FCI Fort Dix, as the sole respondent. (Order, 2/26/01, Resp't's Br. at 2.)
Respondent answered on April 27, 2001, requesting that this Court dismiss Petitioner's application for writ of habeas corpus. (Resp't's Br. at 10.) Respondent indicates that Petitioner's Unit Manager at FCI Fort Dix refuted the allegation that the decision to deny Petitioner access to rehabilitation programs was based on the existence of an outstanding warrant. (Hughes Decl., Resp't's Br. Ex. 1.) Further, Respondent argues that dismissal is warranted because Petitioner failed to exhaust all administrative remedies and because Petitioner failed to show constitutional or statutory entitlement to the relief sought. (Resp't's Br. at 2-3.)
On June 1, 2001, Petitioner filed a motion in this Court requesting leave to amend and a motion for summary judgment. This Court granted Petitioner's motion to amend, (Order, Banks v. Bailey, No. 01-832, Docket Entry No. 9-1,(D.N.J. July 2, 2001)), and on July 2, 2001, this Court dismissed Petitioner's motion for summary judgment without prejudice, (Order, Banks v. Bailey, No. 01-832, Docket Entry No. 10-1, (D.N.J. July 2, 2001)).
Petitioner has not submitted an amended complaint to this Court as of the date of this Opinion. In fact, Petitioner has not been in contact with this Court since September 17, 2001, when he filed a letter requesting a hold on all mail from this Court. Because courts may impose sanctions on litigants for failure to notify the Court of a change in address within five days of being appraised of said change, L. Civ. R. 10.1(a), this Court could consider granting an order dismissing Petitioner's writ of habeas corpus application for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). See Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341 (3d Cir. 1982) (holding that Rule 41 authorizessua sponte dismissals for failure to prosecute). The Third Circuit, however, has held that dismissal pursuant to Rule 41 "should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff." Id. at 342.
DISCUSSION
I. Standard of Review on a Motion to Dismiss
Respondent's motion to dismiss Petitioner's application for writ of habeas corpus falls under the precepts of Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) for failure to state a claim requires that this Court examine the legal sufficiency of Petitioner's claim. See Conley v. Gibson, 355 U.S. 41, 45 (1957). In doing so, this Court must accept as true all factual allegations and all reasonable inferences that derive from them after construing them in the light most favorable to Petitioner. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. Nov. 20, 1991), reh'g denied, (Dec. 24, 1991). Petitioner's application will be deemed to have alleged sufficient facts if it adequately put Respondent on notice of what Petitioner's claim is and the grounds upon which it rests. Nami, 82 F.3d at 65; Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 629 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). This Court must dismiss Petitioner's application, however, if "it appears beyond doubt that [Petitioner] can prove no set of facts in support of his claim which would entitle him to relief."Conley, 355 U.S. at 45-46.
Although on the surface, Respondent's "failure to exhaust" defense may appear to be grounds for dismissal under Rule 12(b)(1), the purpose of the exhaustion of remedies rule is to provide "courts with the benefit of an agency's expertise, and [to] serve judicial economy." Anjelino v. New York Times Co., 200 F.3d 73, 87 (3d Cir. 2000) (quoting Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997)). Thus, the Third Circuit has held that "failure to exhaust" does not affect subject matter jurisdiction and instead, should be considered under Rule 12(b)(6), Anjelino, 200 F.3d at 87, since it is an affirmative defense.
II. Petitioner's § 2241 Claim
A. Failure to Exhaust Administrative Remedies
Petitioner filed his application for habeas corpus relief under 28 U.S.C. § 2241, the statute which governs a prisoner's challenge to the execution or manner of his sentence. See Martinez Diaz v. Olsen, 110 F. Supp. 2d 295, 298-99 (D.N.J. 2000). In order to petition for a writ of habeas corpus pursuant to § 2241, federal prisoners are ordinarily required to exhaust their administrative remedies. Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981) (per curiam). The Bureau of Prisons (BOP) has in place the Administrative Remedy Program — a grievance process through which inmates may file a complaint with institution staff and then the Warden of the facility regarding almost any aspect of their confinement.See 28 C.F.R. §§ 542.10 542.13 (2002). An inmate who is not satisfied with this result may appeal to the appropriate Regional Director within a specified time period and then, if still unsatisfied, may file a timely appeal with the National Appeals Administrator in the Central Office of the BOP. See 28 C.F.R. § 542.15. In this case, Petitioner has failed to allege, and there is nothing in the record indicating, that Petitioner sought relief through the BOP's administrative procedures. In fact, the BOP's computerized record system indicates that Petitioner has not filed a request for administrative remedy concerning the issues raised in his petition. (Tafelski Decl., Resp't's Br. Ex. 1.) Thus, because Petitioner has failed to exhaust all of his administrative remedies, Petitioner's complaint reaches this Court before it has ripened.
Because Petitioner was released on November 1, 2001, there is a question as to whether his habeas petition has been rendered moot. The writ of habeas corpus under § 2241 does not extend to a petitioner unless he is in custody when the application for habeas corpus is filed. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968). It is not automatic, however, that jurisdiction is defeated once a petitioner is released. Id. Where there are continuing adverse collateral consequences, for example supervised release, a habeas petition may not be moot. See id. at 237-38; see also Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 n. 7 (3d Cir. 1996) (reviewing § 2241 application, despite petitioner having been released from parole, because "sufficient potential negative collateral consequences exist"); United States v. Swigert, 18 F.3d 443, 444 (7th Cir. 1994). Petitioner here was sentenced to three years of supervised release, in addition to his 18 months imprisonment. Because there are continuing collateral consequences in this case, Petitioner's habeas petition will be considered at this time.
Petitioner argues that § 2241 does not contain any language mandating that habeas petitioners exhaust administrative remedies prior to challenging the execution of his or her prison sentence and that exhaustion of administrative remedies in Petitioner's case would be futile. Although Petitioner is correct about the absence of language in § 2241 regarding exhaustion of administrative remedies, the Third Circuit Court of Appeals has consistently required exhaustion for habeas petitioners.Moscato, 98 F.3d at 760-61; Arias v. United States Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). This is so because: (1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors. See Moscato, 98 F.3d at 761-62 (citing Bradshaw, 682 F.2d at 1052).
As for Petitioner's allegation that exhaustion of administrative remedies would prove futile, Petitioner urges that he received no response from institutional staff and thus was unable to proceed to the next level of the Administrative Remedy Program. Petitioner, however, has neither alleged such facts in his § 2241 petition, nor provided this Court with facts regarding his submission of the appropriate form to institutional staff. Assuming Petitioner submitted the requisite form and received no response, nothing in the language of 28 C.F.R. § 542.15 prevents Petitioner from appealing to the Regional Director. Thus, although the time for filing an appeal has expired, Petitioner's failure to exhaust all administrative remedies, absent a showing of cause and prejudice, precludes him from seeking relief in this Court. See Moscato, 98 F.3d at 762 (holding that a habeas petitioner who fails to exhaust his administrative remedies because of a procedural default is not entitled to judicial review absent a showing of cause and prejudice). Because Petitioner has failed to exhaust his administrative remedies through the BOP Administrative Remedy Program, this habeas petition will be dismissed on this ground.
B. Constitutional or Statutory Entitlement to Relief Sought
Even if Petitioner had exhausted the available administrative remedies, he would not be entitled to § 2241 relief upon the merits, as now discussed. Under 28 U.S.C. § 2241, a habeas petitioner may challenge the very fact or duration of physical imprisonment in order to determine whether the petitioner is entitled to immediate release or a speedier release from that imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 484-85, 500 (1973). Petitioner in this case does not seek a full release from custody; rather, Petitioner requests that he be allowed access to certain prison rehabilitation programs. Specifically, Petitioner alleges in his original complaint that he has been denied access to these programs in violation of his Fifth Amendment right to due process, Sixth Amendment right to a speedy trial, and his constitutional rights under art. IV, § 2, cl. 2 and federal statutory rights under 18 U.S.C. § 3182. See Hab. Pet., 2/26/01, at 3-4.
Petitioner's claim of rights violations under art. IV, § 2, cl. 2 and 18 U.S.C. § 3182 are misplaced because neither of those provisions are relevant to Petitioner's complaint. As for Petitioner's assertion that his right to due process and right to a speedy trial have been violated, the Constitution dictates that confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. Meachum v. Fano, 427 U.S. 215, 225 (1976); see also Young v. Quinlan, 960 F.2d 351, 358 n. 16 (3d Cir. 1992). The same is also true for prisoner classification and eligibility for rehabilitative programs in the federal system. Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976). "Congress has given federal prison officials full discretion to control these conditions of confinement." Id.; see also Prows v. Federal Bureau of Prisons, 981 F.2d 466, 469 (10th Cir. 1992), cert. denied, 510 U.S. 830 (1993) (holding that 18 U.S.C. § 3624(c) authorizes rather than mandates the BOP to abide by certain pre-release conditions).
U.S. Const. art. IV, § 2, cl. 2 provides that:
A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
U.S. Const. art. IV, § 2, cl. 2.
18 U.S.C. § 3182 provides that:
Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.18 U.S.C. § 3182.
Petitioner concedes that Respondent has full discretion to designate inmates where she chooses, but Petitioner contends that Respondent created a liberty interest opening the door to constitutional attack by instituting rules, policies, regulations, patterns and custom that affect the manner of execution of Petitioner's sentence. Petitioner alleges that the BOP then violated its own rules and regulations by using "erroneous and undocumented information" to deny Petitioner access to rehabilitation programs, by transmitting that information to a Community Correctional Center without Petitioner's consent, and by failing to satisfy Petitioner's request for documents. Petitioner cites BOP Program Statements 1040.04, 5100.07 — Table 9-15, and 5380.07 (1998) as a basis for his allegations. Petitioner mistakenly relies on Program Statement 1040.04 as it addresses discrimination based on race, religion, gender, disability, and political orientation. As for Program Statement 5100.07 — Table 9-15, this section appears to apply to female prisoners only. Significantly, the applicable counterpart to that section for male inmates, 5100.07 — Chapter 8, states explicitly that the unit team and/or Warden retain final review authority and that "the intent of the Custody Classification system is to permit staff to use professional judgment within specific guidelines." Bureau of Prisons' Program Statement 5100.07. Finally, Program Statement 5380.07 was not submitted to this Court by Petitioner. Assuming this section establishes policies and regulations as Petitioner asserts, Petitioner fails to demonstrate how this policy statement was intended to serve as anything other than guidelines for prison officials to follow. While in certain circumstances prison regulations or statutes may serve to limit official discretion and to create liberty interests, Kentucky Dep't of Correction v. Thompson, 490 U.S. 454, 462 (1989), "these interests will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Here, Petitioner does not state that he has suffered significant or atypical hardship. Hence, there is no basis to find that the BOP created a due process liberty interest in Petitioner by establishing rules and regulations governing prison officials' discretionary authority. Consequently, Petitioner has failed to show constitutional or statutory entitlement to the relief he seeks and his habeas petition must be dismissed.
Petitioner additionally submits that he has a liberty interest protected under 5 U.S.C. § 552 and § 552a(4)(B); 5 U.S.C. § 552a(e)(5), (g)(1)(c), (g)(4); 5 U.S.C. § 552a(d); § 552a(f)(3); 5 U.S.C. § 701 et seq., § 702 et seq., § 704 et seq. The provisions under 5 U.S.C. § 552 and § 552a pertain to an individual's right to access agency records and an agency's responsibility to maintain accurate records. Petitioner has not provided any evidence that there are indeed records in his inmate file that the BOP has withheld from Petitioner. Further, even if the BOP relied on information not in Petitioner's file to make their determination, nowhere does it say in the statutes listed by Petitioner that poor record keeping entitles a habeas petitioner to judicial relief in the form of an injunction preventing prison officials from denying a prisoner access to rehabilitation programs. The provisions under 5 U.S.C. § 701, § 702, and § 704 simply provide that an individual suffering a legal wrong because of agency action is entitled to judicial review. As stated in the previous section of this Opinion, however, judicial review cannot occur until Petitioner has exhausted all administrative remedies. See discussion supra, Part II.A.
CONCLUSION
Because Petitioner has not exhausted all administrative remedies and, alternatively, because Petitioner has not shown constitutional or statutory entitlement to the relief he seeks, Petitioner's application for writ of habeas corpus under 28 U.S.C. § 2241 is dismissed. The accompanying Order is entered.ORDER
THIS MATTER having come before the Court upon respondent United States's motion to dismiss petitioner Augustine Banks' application for habeas corpus relief under 28 U.S.C. § 2241; and the Court having considered the parties' submissions; and for reasons set forth in the Opinion of today's date;IT IS on this __ day of June, 2002, hereby
ORDERED that respondent's motion to dismiss shall be, and hereby is, GRANTED ; and petitioner's habeas application shall be, and hereby is, DISMISSED.