Aponte-Pinto v. Woods

MICHAEL APONTE-PINTO, Petitioner, v. WARDEN WOODS, et al., Respondents.

Case No.: 3:18cv443/LAC/EMT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

November 19, 2018

REPORT AND RECOMMENDATION

This cause is before the court on Petitioner Michael Aponte-Pinto's ("Aponte-Pinto") petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 (ECF No. 1). Aponte-Pinto is an inmate of the federal Bureau of Prisons ("BOP"), currently housed at the Federal Prison Camp in Pensacola, Florida ("FPC-Pensacola"). Respondent Woods, the Warden of FPC-Pensacola, filed a Response to the § 2241 petition with supporting materials (ECF No. 11). Aponte-Pinto filed a pro se Reply with supporting materials (ECF No. 13). Counsel for Aponte-Pinto filed a notice of appearance (ECF No. 15) and a Supplemental Reply (ECF No. 16).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C). After careful consideration of the issues presented by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Aponte-Pinto is not entitled to relief.

I. BACKGROUND

The parties do not dispute the following background facts (see Respondent's Response at 2-5, ECF No. 11; Aponte-Pinto's Reply at 5-8, ECF No. 13). Aponte-Pinto was convicted in the United States District Court for the District of Puerto Rico, Case No. 3:14cr346, of conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A). The district court sentenced him on September 9, 2015, to 87 months of imprisonment. Aponte-Pinto's expected release date, via good conduct time, is February 14, 2022.

Under 18 U.S.C. § 3621(b) & (e), the BOP is required, subject to the availability of appropriations, to make residential substance abuse programs available to eligible prisoners. The BOP's Residential Drug Abuse Treatment Program ("RDAP") was developed in accordance with this federal mandate to assist federal prisoners in overcoming their substance abuse problems. Procedures for implementing this voluntary program are set forth at 28 C.F.R. §550.50, et seq., and BOP Program Statement 5330.11, Psychology Treatment Programs (4/25/2016). To encourage inmates to participate in the program, the BOP traditionally offered a number of incentives to inmates. These incentives include financial rewards, consideration for the maximum period of time at a community corrections facility, and local institution incentives such as preferred living quarters. See 28 C.F.R. § 550.57.

If an inmate successfully completes RDAP, the Director of the BOP has discretion to reduce the inmate's sentence by a period not to exceed twelve months. See 18 U.S.C. §3621(e)(2)(B); see also BOP Program Statement 5331.02 (9/27/2017), Early Release Procedures Under 18 U.S.C. §3621(e). Federal regulations and Program Statement 5331.02 establish the BOP's criteria and procedures for evaluating an inmate for early release pursuant to § 3621(e)(2)(B) for successful completion of the RDAP. See PS 5331.02. An inmate is eligible for § 3621(e) early release if, among other things, the inmate successfully completes RDAP, as described in 28 C.F.R. § 550.53. See 28 C.F.R. § 550.55(a)(2).

To successfully complete RDAP, an inmate must complete three components. See 28 C.F.R. § 550.53(a); PS 5330.11, Chp. 2, pp. 8-24 (implementing RDAP regulations and providing implementing instructions). The first component of RDAP is the unit-based component, which involves the inmate completing activities as assigned by drug abuse treatment specialists ("DTS") and the Drug Abuse Program Coordinator ("DAPC") in a treatment unit set apart from the general prison population. 28 C.F.R. § 550.53(a)(1). Successful completion of the unit-based RDAP component requires (1) satisfactory attendance and participation in all RDAP activities, and (2) passing each RDAP testing procedure. Id., § 550.53(f). This component must be at least six months long, but usually lasts nine to twelve months in order to accommodate the minimum number of treatment hours. PS 5330.11, Chp. 2, p. 8.

The second component, if time allows between completion of the unit-based component of the RDAP and transfer to a community-based program, consists of follow-up treatment for inmates who return to the general population. See 28 C.F.R. § 550.53(a)(2); PS 5330.11, Chp. 2, p. 22. An inmate must remain in follow-up treatment for twelve months or until he is transferred to a residential reentry center, whichever comes first. PS 5330.11, Chp. 2. p. 22.

The third RDAP component is Transitional Drug Abuse Treatment ("TDAT"), in which the inmate is transferred to community confinement and must participate in and successfully complete community-based drug abuse treatment. See 28 C.F.R. § 550.53(a)(3).

An inmate may be expelled/removed from RDAP by the DAPC because of disruptive behavior related to the program or unsatisfactory progress in treatment. 28 C.F.R. § 550.53(g)(1). Ordinarily, an inmate must be given at least one formal warning before being removed from RDAP. Id., § 550.53(g)(2). But a formal warning is not necessary when the documented lack of compliance with program standards is of such magnitude that an inmate's continued presence would create an immediate and ongoing problem for staff and other inmates. Id.

The Program Statement implementing the expulsion and warning regulations provides:

(a) Circumstances for an Intervention. Ordinarily, staff will provide the inmate with at least one treatment intervention prior to removal. However, in response to disruptive behavior or unsatisfactory progress, treatment staff will:

- Meet with the inmate to discuss his or her behavior or lack of progress.

- Assign the treatment intervention(s) chosen to reduce or eliminate the behavior, or to improve progress.

- Warn the inmate of the consequences of failure to alter his/her behavior.

- Properly document in PDS the meeting and treatment intervention(s) assigned.

- Properly document in PDS changes to the inmate's treatment plan, and ensure that both staff and the inmate sign the amended treatment plan.

- When appropriate, require the inmate to discuss his or her targeted behavior in the community.

(b) Circumstances for Expulsion. In the event repeated treatment interventions are required in response to inappropriate behaviors or unsatisfactory progress the treatment team will meet to decide if the inmate will be removed from the program.

Within two working days after a decision has been made to expel an inmate, the DAPC will:

- Verbally notify the inmate of his/her expulsion status.

- Notify the inmate and appropriate staff in writing of the reason for expulsion through the Change in RDAP and § 3621(e) Status form.

- Update the pertinent SENTRY DRG assignments.

- Ensure proper documentation of the expulsion has been entered into PDS.

An inmate may not ordinarily be removed immediately by the DAPC without a treatment intervention unless the inmate has committed a prohibited act that jeopardizes the institution and other inmates.

PS 5330.11, Chp. 2, p. 18.

On December 17, 2015, Dennis N. Profitt, Ph.D., the DAPC at FPC-Pensacola, conducted Aponte-Pinto's RDAP eligibility diagnostic interview (see Declaration of Dr. Dennis N. Profitt ¶ 9, ECF No. 11-3). As part of this RDAP screening, Aponte-Pinto signed a consent form (Form BP-A0749) titled, "Agreement to Participate in a BOP Residential Drug Abuse Treatment Program" (see Profitt Decl. ¶ 10 and Exhibit B). The Agreement identified RDAP goals, rules, and polices (see id.). By signing the Agreement, Aponte-Pinto acknowledged his understanding that he was expected to follow policies, rules, and regulations of the BOP and RDAP (see id.). Aponte-Pinto also acknowledged his understanding that if he failed to do so, he may be expelled from RDAP (see id.). Aponte-Pinto also acknowledged that he read the Agreement or had it read to him, and that he understood and agreed to the rules and regulations for participation in RDAP as described in the Agreement (see id.). The Agreement notified Aponte-Pinto that his expulsion from RDAP would result in his receiving no consideration for early release (see id.).

Aponte-Pinto entered the residential component of RDAP in March of 2016, and completed it in November of 2016 (Profitt Decl. ¶ 12). On November 11, 2016, Aponte-Pinto was enrolled in the follow-up component (id.). Aponte-Pinto was expelled from RDAP on April 24, 2017 (id., ¶¶ 12-17). Following the expulsion, the Treatment Team made a clinical recommendation that he re-do the residential component of RDAP (id., ¶ 20). Aponte-Pinto chose not to reapply to the residential component (id., ¶¶ 18, 20).

Aponte-Pinto commenced this habeas action on March 20, 2018 (see ECF No. 1). In his habeas petition, Aponte-Pinto contends the BOP's decision to expel him from RDAP violated his substantive and procedural due process rights. He also claims the BOP's decision was discriminatory and arbitrary and capricious (see id. at 7-8). As relief, Aponte-Pinto seeks reversal of the BOP's decision, reinstatement to the follow-up component of RDAP (but in a Spanish speaking program), reinstatement of his provisional early release eligibility, and expungement of the RDAP expulsion from his inmate record (ECF No. 1 at 6, 13; ECF No. 16).

II. ANALYSIS

A. Constitutional Claims

1. Due Process

Aponte-Pinto argues that the decision to expel him from RDAP violated his due process rights, because he was not given a Formal Warning prior to his expulsion; instead, the Formal Warning and expulsion occurred during the same 20-minute meeting with the Treatment Team on April 24, 2017 (s...