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holding that Fraley did not apply where response to remedy request was based on an individualized assessment of statutory factors rather than a rigid refusal based on BOP policy
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No. CV 15-2793-JLS (PLA)
04-22-2015
LONNY LEE BRISTOW, Petitioner, v. CALVIN JOHNSON, Warden, Respondent.
ORDER TO SHOW CAUSE RE: DISMISSAL OF PETITION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND/OR FOR LACK OF SUBJECT MATTER JURISDICTION
On April 15, 2015, petitioner, a federal prisoner currently incarcerated at the Federal Correctional Institution in Adelanto, California, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241 ("Petition" or "Pet."), with an accompanying "Memorandum in Support of Petition . . ." ("Mem."). (Dkt. Nos. 1, 2). Petitioner also filed a Motion to Expedite Case ("Motion"). (Dkt. No. 4).
Petitioner states that his projected release date is approximately nineteen months from now, on November 30, 2016. (Mem. at 3). Thus, there are approximately seven months remaining before November 30, 2015, the date petitioner contends he should be placed in a residential reentry center ("RRC"). (See id.). In light of the statutory deadlines for proceeding through the administrative appeals process -- both for petitioner and for the BOP -- there appears to be adequate time for petitioner to pursue his administrative remedies. See 28 C.F.R. §§ 542.13 to 542.15, 542.18. Petitioner's Motion is thus denied.
I.
BACKGROUND
On April 19, 2013, in the district court for the Northern District of Ohio, Eastern Division, case number CR 13-148, petitioner pleaded guilty to six counts of bomb threats. (Pet. at 2). Petitioner's projected release date is November 30, 2016. (Mem. at 3).
Petitioner states that he requested placement in an RRC for the last twelve months of his sentence, i.e., from November 30, 2015, to November 30, 2016, and instead received only six months, commencing on May 30, 2016. (See Mot. at 1; Mem. at 2). Petitioner claims that he did not receive individualized consideration for placement in an RRC as required by 18 U.S.C. § 3624. (Mem. at 4-6). He claims that had he received individualized consideration, he would have been found eligible to be placed in an RRC as of November 30, 2015. (Mot. at 3).
Petitioner contends that he was given the same six months in an RRC as all other prisoners despite the fact that he had completed a non-residential drug abuse program, is homeless, is not subject to supervised release, and has no prison disciplinary history. (Pet. at 3; Mem. at 4-6).
Petitioner admits that he has not exhausted his administrative remedies, but contends that requiring him to do so would be futile. (Mem. at 2-3.1). He argues that the Bureau of Prisons ("BOP"), "either by policy or memo," has directed respondent "to approve inmates for no more than six (6) months halfway house time." (Mem. at 2). He also argues that there is insufficient time between now and November 30, 2015, to exhaust his administrative remedies "without mooting this case." (Mem. at 3).
Petitioner alleges that he filed the Petition "within thirty (30) days of the RRC review." (See Mem. at 3.1).
II.
STATUTORY FRAMEWORK
The BOP has the authority to designate the location of an inmate's imprisonment. Specifically, under 18 U.S.C. § 3621(b), the BOP has discretion to place an inmate in an available penal or correctional facility and to direct the transfer of an inmate "at any time." Rodriguez v. Smith, 541 F.3d 1180, 1182, 1185 (9th Cir. 2008).
"Two statutory provisions govern the BOP's authority to place inmates in its custody in RRCs: 18 U.S.C. §§ 3621(b) and 3624(c)." Sacora v. Thomas, 628 F.3d 1059, 1061-62 (9th Cir. 2010). Section 3621 "governs the BOP's authority in cases where a prisoner who has more than a year left to serve of his or her prison sentence requests a transfer to such a facility." Id. at 1062 (footnote omitted). When determining which facility is suitable, the BOP must consider the following five factors:
(1) the resources of the facility contemplated;18 U.S.C. § 3621(b). In other words, § 3621(b) mandates that the BOP make an individualized assessment under the five statutory criteria when making transfer or placement determinations "to any available penal or correctional facility[ ]," including RRC placement. Rodriguez, 541 F.3d at 1188 (emphasis added).
(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 --
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
When a federal prisoner approaches the end of his sentence, 18 U.S.C. § 3624(c) requires the BOP to decide whether the prisoner is suitable for transfer to an RRC to ease his transition back into a community. 18 U.S.C. § 3624(c)(6)(A); see Sacora, 628 F.3d at 1062. Specifically, § 3624(c) states:
The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility.18 U.S.C. § 3624(c)(1). In administering § 3624(c), the BOP considers the five factors set forth above in § 3621(b). Sacora, 628 F.3d at 1068.
III.
EXHAUSTION AND SUBJECT MATTER JURISDICTION
"[S]ection [2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus." Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), overruled on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S. Ct. 2422, 165 L. Ed. 2d 323 (2006). Nevertheless, the Ninth Circuit requires, "as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241." Id.
The BOP has established an administrative remedy process permitting an inmate to seek review of an issue relating to "any aspect of his/her own confinement." 28 C.F.R. § 542.10(a). Under that process, an inmate must proceed through four levels: (1) an attempt at informal resolution; (2) a formal written request to the warden for an administrative remedy; (3) an appeal to the regional director of the region where the inmate is confined; and (4) an appeal to the general counsel. 28 C.F.R. §§ 542.13 to 542.15. The appeal to the general counsel completes the administrative remedy process. 28 C.F.R. § 542.15(a). Here, petitioner concedes that he has failed to properly exhaust his administrative remedies. (Mem. at 1-3.1).
Petitioner's failure to properly exhaust his claim does not, however, end the Court's analysis. Rather, courts have discretion to waive prudential exhaustion requirements where "administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void." Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 1994) (citation and internal quotation marks omitted). In deciding whether to exercise this discretion, a "key consideration" is whether "relaxation of the [exhaustion] requirement would encourage the deliberate bypass of the administrative scheme." Id. (citation and internal quotation marks omitted).
Where administrative exhaustion may allow an agency an opportunity to remedy its mistakes before being haled into court, exhaustion is appropriate. See McCarthy v. Madigan, 503 U.S. 140, 145, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992). However, where the agency has predetermined an issue before it, exhaustion would be futile and should be excused. Id. at 148. The Ninth Circuit's opinion in Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (per curiam), is instructive on this point. In Fraley, the Ninth Circuit waived a petitioner's failure to exhaust where the petitioner's initial attempt to avail herself of the prison's administrative process was denied pursuant to the mechanical application of an official BOP policy. Fraley, 1 F.3d at 925. The Ninth Circuit explained that an additional attempt to exhaust administrative remedies would be futile because the reviewing official "would almost certainly have denied [the petitioner's] request as well, citing the same official [BOP] policy." Id.
Here, by contrast, there is no reason to believe that an attempt on petitioner's part to exhaust his administrative remedies would be futile. Unlike the claim in Fraley, which was denied pursuant to a rigid BOP policy, petitioner's challenge to his RRC placement determination involves a review of an individualized assessment of the designated five statutory criteria. See Rodriguez, 541 F.3d at 1188. As such, there is no reason to believe with any degree of certainty that, for example, either the regional director or the general counsel would reach the same conclusion as did the warden with respect to petitioner's request for twelve months of RRC placement.
Nor is there any merit to petitioner's assertion that the BOP has categorically predetermined that no more than six months of RRC placement is necessary to prepare prisoners for their reentry. (See Mem. at 2-3.1). Where, as here, the BOP has statutory authority under 18 U.S.C. § 3624(c) to place prisoners in RRC facilities for a specified period of time, the BOP cannot categorically predetermine that all prisoners are suitable for RRC placement for a period shorter than that authorized by § 3624(c). See Rodriguez, 541 F.3d at 1184-85. Thus, in Rodriguez, the Ninth Circuit struck down a BOP regulation that automatically restricted a prisoner's placement in an RRC to the lesser of 10% or the last six months of his sentence, when the version of § 3624(c) then in effect authorized RRC placement for as much as the last six months of a prisoner's sentence. Id. By categorically restricting RRC placement to the lesser of 10% or the last six months of a prisoner's sentence, the BOP's regulation, among other things, violated "the unambiguously expressed intent of Congress conveyed in section 3621(b), which expressly instructs that all placement and transfer determinations take into consideration each of the five factors enumerated in the statute." Id. at 1186.
By contrast, the BOP can apply a presumption that all prisoners are suitable for RRC placement for a period shorter than that authorized by § 3624(c), provided that the BOP tests that presumption by conducting an individualized determination regarding the suitability of RRC placement for each eligible prisoner. Sacora, 628 F.3d at 1065-68. In Sacora, a petitioner challenged a BOP policy under which prison staff could presume that any inmate's pre-release RRC needs could be accommodated by a period of six months or less, even though section 3624(c), as amended, provided that inmates were eligible for up to twelve months of pre-release RRC placement. Id. at 1061. The BOP, however, cautioned its staff that they could not "automatically deny an inmate's request for a transfer to a RRC," even if the request included time beyond the last six months of the inmate's sentence. Id. at 1064. Instead, staff were ordered to give "individualized consideration" to each inmate request for RRC treatment. Id. Notwithstanding this cautionary language, the BOP advised that "a[n] RRC placement beyond six months should only occur when there are unusual or extraordinary circumstances justifying such placement, and the Regional Director concurs." Id.
The policy was subsequently revised to omit the need to obtain the Regional Director's approval for RRC placement beyond six months. See Harris v. Ives, 2014 WL 3504275, at *4, n.2 (C.D. Cal. July 14, 2014).
The Ninth Circuit held that the BOP did not exceed its statutory authority in maintaining this policy. Id. at 1065-68. In so holding, the Ninth Circuit found that "the BOP's policy -- that six months in a[n] RRC constitutes a 'sufficient duration' in most cases, but that each inmate is eligible for a 12-month placement and must be considered for placement in a RRC on an individual basis -- is facially consistent" with § 3624(c). Id. at 1066. In reaching this finding, the Ninth Circuit observed that § 3624(c) provided that the period in RRC placement be of a sufficient duration to ensure the greatest likelihood of successful reintegration into the community, but that the period was "not to exceed 12 months." Id. (emphasis added).
Moreover, the Ninth Circuit explained that neither the BOP's six-month presumption nor its requirement that unusual circumstances exist to justify RRC placements exceeding six months violated the relevant statutes. As to the six-month presumption, the Ninth Circuit stated that the BOP was "entitled to use its experience in interpreting and administering a statute." Id. at 1067. The Ninth Circuit also observed that the "unusual circumstances" requirement was justified as an "extra check" on the longest placements in RRCs, particularly because § 3621(b) identified "the resources of the facility contemplated" as one of the factors to consider when making placement decisions. Id. at 1067. Additionally, according to the Ninth Circuit, that requirement furthered the express goal of Congress of assisting offenders to reenter the community "'by providing sufficient transitional services for as short a period as possible.'" Id. (quoting 42 U.S.C. § 17501(a)(5)) (emphasis added).
Finally, the Ninth Circuit found that the BOP's policy did not result in the automatic denial of RRC placement for more than the last six months of a prisoner's sentence. Id. at 1068. Distinguishing the regulation in Rodriguez, which necessarily precluded a consideration of the § 3621(b) factors, the Ninth Circuit noted that the BOP's policy explicitly requires an individualized assessment of each request for RRC placement. Id. And, unlike the regulation in Rodriguez, the BOP policy admonished staff that it had to consider the five factors set forth in § 3621(b) in reviewing all RRC placement requests.
Sacora forecloses petitioner's argument as to the futility of exhausting his administrative remedies. Indeed, petitioner's contention that the BOP categorically refuses to place anyone in RRC placement for longer than the last six months of his sentence (Mem. at 2-3), raises the same arguments as those rejected by the Ninth Circuit in Sacora. But, as explained in Sacora, the BOP only presumes that six months RRC placement is sufficient, while testing that presumption under the five factors set forth in § 3621(b). Petitioner has offered no facts to suggest that the BOP deviated from that practice in his case. Accordingly, he has not shown that exhausting his administrative remedies would be futile.
Petitioner has provided no documents associated with his request for RRC placement or the denial of that request, so the Court cannot determine if those documents reflect that an individualized assessment was conducted.
Although the Court does not intend to reach the merits of petitioner's challenge to his RRC placement in this Order, that challenge nevertheless appears to be meritless. For the reasons discussed above, to the extent petitioner asserts a direct challenge to the BOP's purported categorical predetermination regarding the number of months of RRC placement necessary to prepare prisoners for their reentry (see Mem. at 1-3.1), that challenge fails.
Alternatively, to the extent petitioner is challenging the warden's individualized determination as to the amount of time that petitioner should spend in RRC placement, the Court lacks jurisdiction over any such challenge. See Reeb v. Thomas, 636 F.3d 1224, 1227-28 (9th Cir. 2011) (district courts lack jurisdiction to review "'any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3264"); see also Brown v. Ives, 543 Fed. App'x 636, 637 (9th Cir. 2013) ("Insofar as Brown is challenging the BOP's individualized determination concerning his [RRC] placement, the district court properly concluded that it lacked jurisdiction over the petition.") (citing Reeb, 636 F.3d at 1228); Thompson v. Ives, 2015 WL 413765, at *2 (C.D. Cal. Jan. 30, 2015) (holding that court lacked jurisdiction to consider petitioner's challenge to BOP's particularized decision regarding his RRC placement) (citing Reeb, 636 F.3d at 1228; Caldwell v. Sanders, 2013 WL 1124712, at *1-2 (C.D. Cal. Jan. 23, 2013)).
Accordingly, petitioner has not exhausted his administrative remedies, and he has failed to demonstrate that any attempt to exhaust his administrative remedies would be futile. Moreover, to the extent petitioner is challenging the BOP's determination as to the amount of time he should spend in RRC placement (see Mem. at 4-6), that determination -- or the alleged failure to make an individualized determination -- should be challenged through the BOP's administrative remedy process. Reeb, 626 F.3d at 1227.
IV.
CONCLUSION
Based on the foregoing, no later than May 19, 2015, petitioner is ordered to show cause (1) why the instant Petition should not be dismissed as unexhausted; and (2) why the Petition should not be dismissed for lack of subject matter jurisdiction.
Specifically, no later than May 19, 2015, petitioner is given a final opportunity to file a response with the Court, making clear his arguments, if any, as to why the Petition should not be dismissed as unexhausted and/or for lack of subject matter jurisdiction. Petitioner must submit all documents relating to his request for RRC placement, and the denial of that request. All facts relied upon by petitioner must be proved by testimony contained in a declaration signed under penalty of perjury pursuant to 28 U.S.C. § 1746, or in properly authenticated documents.
As the Court herein has considered and rejected petitioner's arguments regarding futility, petitioner should not again argue this issue unless there is new information to support this argument.
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Failure to respond by May 19, 2015, will result in the instant Petition being summarily dismissed with prejudice as unexhausted and/or for lack of subject matter jurisdiction. DATED: April 22, 2015
/s/_________
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE