Hayes v. Warden

RODNEY HAYES, Petitioner, v. WARDEN, FCI GILMER, Respondent.

Civil Action No. 3:14cv91

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

February 25, 2015

(Judge Groh)

REPORT AND RECOMMENDATION

I. Procedural History

On August 15, 2014, the pro se petitioner, an inmate incarcerated at FCI Gilmer in Glenville, West Virginia, filed a combined petition for writ of habeas corpus pursuant to 28 U.S.C. §2241 and for sentence reduction pursuant to 18 U.S.C. §3621. In response to a Notice of Deficiency, petitioner paid his $5.00 filing fee on September 12, 2014. After a September 15, 2014 Show Cause Order, filed his court-approved form petition on September 16, 2014, along with an Objection and Protest Over Usage of Court Form Petition.

On September 17, 2014, the respondent was directed to show cause why the petition should not be granted. On October 15, 2014, the respondent filed a Motion to Dismiss or for Summary Judgment and Response to Order to Show Cause. Because petitioner was proceeding pro se, on October 20, 2014, the Court issued a Roseboro Notice. The Notice was sent via certified mail, return receipt requested. On December 8, 2014, after a review of the docket revealed that the return receipt for the Roseboro Notice had never been returned, the pro se law clerk checked the United States Postal Service's online tracking and determined that the Roseboro Notice never arrived at FCI Gilmer; its last documented location was in Charleston, West Virginia on October 23, 2014. Accordingly, the Roseboro Notice was re-sent to the petitioner, again via certified mail, return receiptrequested. A review of the docket indicates it was accepted at FCI Gilmer on December 11, 2014. The petitioner has never filed a response.

This matter is before the undersigned for a report and recommendation pursuant to LR PL P 2.

II. Background

The petitioner was convicted in the Eastern District of Wisconsin of Conspiracy to Distribute 5 Kilograms of Cocaine,¹ in violation of 21 U.S.C. §846. On January 19, 2012, he was sentenced to a 110-month term of imprisonment, to be followed by five years of supervised release. His current good conduct projected release date is February 6, 2018.²

While incarcerated at FCI Elkton in early 2014, petitioner was found to be eligible to participate in the Residential Drug Abuse Treatment Program ("RDAP").³ Subsequently, after petitioner's information was reviewed by the Designation and Sentence Computation Center ("DSCC"), petitioner was found to be precluded from early release consideration under 28 C.F.R. §550.55(b)(4), because of a prior state robbery conviction.⁴

III. Contentions of the Parties

A. The Petitioner's Contentions

Petitioner contends that the BOP erroneously determined that pursuant to 18 U.S.C. §3621(e), he was not entitled to RDAP's 9-12 month sentence reduction because of a prior state court conviction for a robbery committed on January 10, 1994. He argues that the BOP's decision does not comport with its obligations under the Administrative Procedure Act⁵ ("APA"), because theadministrative record "is devoid of any . . . rationale for the BOP's promulgation of a rule . . . categorically excluding inmates with certain prior convictions from early release eligibility."⁶ Finally, he argues that because in some areas of the BOP's jurisdiction, notably, the 9^th Circuit, any prisoner who completes the RDAP program is eligible for a sentence reduction, regardless of his/her criminal history, here, the BOP's decision to exclude him from early release because of his geographic location violates his due process and equal protection rights.

Petitioner admits he did not seek relief through the BOP's administrative remedy process because it "would prove futile."

For relief, he seeks a "lateral transfer" to a federal prison within the jurisdiction of the 9^thCircuit, and early release under RDAP.

B. Respondent's Motion to Dismiss or for Summary Judgment

The respondent argues that the complaint should be dismissed or summary judgment granted in its favor, because

1) petitioner has failed to exhaust his administrative remedies;

2) petitioner is precluded from early release consideration because of his 1994 state court conviction for robbery;

3) the BOP did not violate the APA in excluding inmates such as petitioner from consideration for early release, if they have past convictions for crimes such as robbery;

4) petitioner's equal protection argument fails because he has not been treated any differently than any other similarly-situated inmate; and

5) petitioner's request for transfer to another prison is not cognizable in a habeas corpus petition.

IV. Standard of Review

A. Motion to Dismiss

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses."Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4^th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4^th Cir. 1993); see also Martin, 980 F.2d at 952.

The Federal Rules of Civil Procedure "require only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited the "rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [a] claim which would entitle him to relief." Conley, 355 U.S. at 45-46. In Twombly, the United States Supreme Court noted that a complaint need not assert "detailed factual allegations," but must contain more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Conley, 550 U.S. at 555 (citations omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level," (Id.). (citations omitted), to one that is "plausible on its face," (Id. at 570), rather than merely "conceivable." (Id). Therefore, in order for a complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4^th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4^th Cir. 2002); Iodice v. United States, 289 F.3d 279, 281 (4^th Cir. 2002)). In so doing, the complaint must meet a "plausibility" standard, instituted by the Supreme Court in Ashcroft v. Iqbal, where it held that a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Thus, a well-pleaded complaintmust offer more than "a sheer possibility that a defendant has acted unlawfully" in order to meet the plausibility standard and survive dismissal for failure to state a claim. (Id).

When a motion to dismiss pursuant to Rule 12(b)(6) is accompanied by affidavits, exhibits and other documents to be considered by the Court, the motion will be construed as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

B. Motion for Summary Judgment

Under the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admission 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). In applying the standard for summary judgment, the Court must review all the evidence "in the light most favorable to the nonmoving party." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must avoid weighing the evidence or determining the truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In Celotex, the Supreme Court held that the moving party bears the initial burden of informing the Court of the basis for the motion and of establishing the nonexistence of genuine issues of fact. Celotex at 323. Once "the moving party has carried its burden under Rule 56, the opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party must present specific facts showing the existence of a genuine issue for trial. Id. This means that the "party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [the] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson at 256. The "mere existence of a scintilla of evidence" favoring the non-moving party will not prevent the entry of summary judgment. Id. at 248. Summaryjudgment is proper only "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita, at 587 (citation omitted).

V. Analysis

A. Exhaustion of Administrative Remedies

According to the Prison Litigation Reform Act ("PLRA"), a prisoner filing an action under any federal law must first exhaust all available administrative remedies. Title 42 U.S.C. §1997(e)(a); Marshall v. Mouse, 2011 WL 3627102 (N.D. W.Va. 2011). The Supreme Court, addressing the exhaustion...