Opinion
Civil Action 4:21-CV-579
07-05-2022
JUAN ROBERTO RINCON-RINCON, Petitioner v. ERIC BRADLEY, Respondent
MARIANI, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
Presently before the court is a petition for writ of habeas corpus filed by pro se federal inmate Juan Roberto Rincon-Rincon (“Petitioner”) pursuant to 28 U.S.C. § 2241. Petitioner alleges that the Bureau of Prisons (“BOP”) improperly classified him as a “Special Supervision” case.
For the reasons explained in this Report, it is RECOMMENDED that:
(1) The Petition (Doc. 1) be DISMISSED.
(2) The Clerk of Court be DIRECTED to close this case.
II. BACKGROUND & PROCEDURAL HISTORY
Petitioner is a high security inmate currently serving a life sentence for violations of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Conspiracy to Possess with Intent to Distribute a Quantity exceeding Five Kilograms of Cocaine and 1,000 Kilograms of Marijuana), and 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1), and 960 (Conspiracy to Import from Mexico into the United States a Quantity Exceeding Five Kilograms of Cocaine and 1,000 Kilograms of Marijuana) imposed by the United States District Court for the Southern District of Texas. (Doc. 7-1, p. 1, ¶ 1).
On September 19, 2019, Plaintiff submitted a request for administrative remedy. In his request, Plaintiff asserted that he was erroneously classified as a Special Supervision CIM case, and requested that the classification be removed or in the alternative that the prison explain the rationale for his classification. (Doc. 11, p. 2). In response, Petitioner's counselor wrote:
Upon review of your complaint, it has been determined that SIS staff does not have the ability to remove or change your current Security Threat Group (STG) assignment. STG assignments are based on multiple criteria requirements which are reviewed and approved by the Sacramento Intelligence Unit. Your STG assignment was reviewed and it was determined that you are appropriate for the STG assignment as a Gulf Cartel Member.(Doc. 1-1, p. 4).
Dissatisfied with the informal response, on October 23, 2019, Petitioner filed a formal administrative remedy request. (Doc. 1-1, p. 7). In that request, Petitioner wrote:
I respectfully submit that the Bureau of Prisons has erroneously classified me as a “Special Supervision” CIM case. As articulated in my Request for Informal Resolution (BP-8), I do not meet the criteria set out in Program Statement 5180.05.7(g) for placement on Special Supervision status. See BP-8 and Response attached hereto. Thus, for the reasons and authorities cited in my BP-8, I respectfully request (1) that I be removed from Special Supervision status, or (2) that if not removed, that I be provided with the rationale for the classification as required by policy.(Doc. 1-1, p. 7).
On November 25, 2019, Warden Bradley denied Petitioner's request to change his classification status. In response, the Warden wrote:
This is in response to your Administrative Remedy that was received on November 18, 2019, in which you are requesting to have the Central Inmate Monitoring assignment of Special Supervision from your information. In the event it will not be removed, you are requesting that you be provided with a rationale for the application of this assignment.
To assist with this matter, a review of your information was conducted. As a routine function, the Federal Bureau of Prisons monitors the transfer, temporary release and community activities of certain inmates, who may present special needs for management. This monitoring is done in an effort to contribute to the safe and orderly operation of federal institutions. A review of Program Statement 5180.05, Central Inmate Monitoring System, reveals that this CIM assignment was appropriately applied. Also according to the aforementioned Program Statement, section b of Classification Procedures, page 6 states, “The case management shall ensure that the affected inmate is notified in writing as promptly as possible for the classification and the basis for it.” A further review of your information reveals that during your Initial Classification, which was held at this facility on September 4, 2013, your case manager advised you of the application of this CIM assignment and you refused to sign the form acknowledging this notification.(Doc. 1-1, p. 8).
On December 9, 2019, Petitioner appealed. In his appeal of the initial denial, Petitioner wrote:
I hereby appeal the denial of by Request for Administrative Remedy (BP-9) in Remedy ID No. 997267-F1 (BP-8, BP-8 Response, BP-9, and BP-9 Response attached hereto and incorporated herein by reference). In my administrative pleadings I respectfully submitted that the BOP had erroneously classified me as a “Special Supervision” CIM case. In
response the warden stated, “A review of Program Statement 5180.05, Central Inmate Monitoring System, reveals that this CIM assignment was appropriately applied.” However, the warden's Response did not address the gravamen of my claim, which was that I did not meet the stated criteria articulated in P5180.05.7(g) for classification as Special Supervision status. If I do not meet that criteria, then the classification cannot be deemed “appropriate.” As an aside, I would note that when I initiated my administrative challenge to the classification, a member of my Unit Team stated, “You will probably be removed from that status, but it will have to be done by Region on a BP-10.”
At all events, for the reasons and authorities stated in my BP-8 and BP-9, I respectfully request that I be removed from Special Supervision status, or that I be provided with the rationale for the classification.(Doc. 1-1, p. 9).
On January 8, 2020, Warden Bradley, who also serves as the acting regional director, denied Petitioner's appeal. (Doc. 1-1, p. 10). In response, the Warden wrote:
Program Statement 5180.04 Central Inmate Monitoring System Program Statement, states this assignment is based on the nature of the offense, and/or inmate's background. Documentation supporting this assignment may include pre-sentence and/or post sentence investigations, written information from law enforcement agencies, U.S. Probation, U.S. Attorney, or Bureau of Prisons staff that justifies the need for review of case management decisions and security. The above policy further indicates the Regional Office is the final review authority for all CIM cases with the assignment of Special Supervision. In addition, Program Statement 5180.04, establishes a system by which the Bureau monitors and controls the transfer, temporary release and community activities of certain inmates who present special needs for management and require a higher level of review. This monitoring does not preclude inmates from program participation, but rather is to provide protection to all concerned and to contribute to the safe and orderly operation of federal institutions.
A review of your appeal reveals the Warden adequately addressed your concerns. You are currently classified with the CIM assignment of Special Supervision and Separation. The basis of the CIM assignments and the name(s) of the separatee(s) are exempt from disclosure by institutional staff under the Freedom of Information Act (FOIA). You may request any non-disclosable information material in your central file by writing a request to .... Your current CIM assignments are appropriate and in compliance with policy. Accordingly, your appeal is denied.(Doc. 1-1, p. 10).
On January 29, 2020, Petitioner appealed. In his appeal, Petitioner wrote:
I hereby appeal the denial of my Regional Administrative Remedy Appeal in Regional Appeal No. 997267-R1, in which I had appealed the denial of my challenge to my classification as a Special Supervision CIM case. See prior administrative pleadings, attached hereto and incorporated herein by reference. First, the warden who denied my BP-9, Mr. E. Bradley, was the acting Regional Director when my Regional Appeal was denied. This is an actual conflict of interest. Second, so far in the current administrative process, my central complaint that I do not meet the criteria for Special Supervision status has not been addressed. And finally, the Regional Director wrongly concluded that I do not have a right to know exactly why I was placed on Special Supervision status. In summation, neither the nature of my offense, which is a run-of-the-mill drug case, nor my background, which does not meet the criteria in P5180.05.7(g), justifies my classification as a Special Supervision CIM case, and thus, I respectfully request that I be removed from that status.(Doc. 1-1, p. 11).
On March 23, 2020, Petitioner's central office appeal was denied. In support of the denial, an administrator wrote:
This is in response to your Central Office Administrative Remedy Appeal where you challenge your Central Inmate Monitoring (CIM) assignment of Special Supervision. You state neither the nature of your offense nor your background meets the criteria for this CIM assignment
pursuant to Program Statement 5180.05. You seek removal of your Special Supervision CIM assignment.
The Warden and Regional Director adequately addressed the issues raised in your complaint and we concur with the responses provided. As advised, your current CIM assignments are appropriately applied to your case and will not be removed at this time. We concur with this decision and find the Special Supervision CIM assignment was applied in compliance with Bureau policy and guidelines. In addition, you were given proper notice/explanation of your specific CIM assignment on March 17, 2019, and you refused to sign the notification.
It is noted your custody classification will be reviewed in October 2020, and you are scheduled for an April 2020 Program Review. You should discuss your classification and issues with your CIM assignment at that time.
Accordingly, your appeal is denied.(Doc. 1-1, p. 12).
On March 30, 2021, Petitioner lodged a petition for writ of habeas corpus. (Doc. 1). Petitioner attached the relevant administrative remedy requests and institutional responses to his petition. (Doc. 1-1). On April 6, 2021, the petition was deemed filed. (Doc. 4). On April 27, 2021, the government filed a response to the petition. (Doc. 7). In its response, the government attached an affidavit by Jonathan Kerr, and a copy of Petitioner's SENTRY report. (Doc. 7-1). Petitioner did not file a reply. This petition is now ready to be decided.
III. ANALYSIS
The Federal Bureau of Prisons (“BOP”) has exclusive discretion to “designate the place of [a] prisoner's imprisonment.” 18 U.S.C. § 3621(b). This placement may be influenced by a number of factors, including security concerns of the Bureau of Prisons. Id. As explained in 28 C.F.R. § 524.70:
The Bureau of Prisons monitors and controls the transfer, temporary release (e.g., on writ), and community activities of certain inmates who present special needs for management. Such inmates, known as central inmate monitoring (CIM) cases, require a higher level of review which may include Central Office and/or Regional Office clearance for transfers, temporary releases, or community activities. This monitoring is not to preclude a CIM case from such activities, when the inmate is otherwise eligible, but rather is to provide protection to all concerned and to contribute to the safe and orderly operation of federal institutions.
(emphasis added). CIM cases are classified according to the following assignments:
(a) Witness Security cases. Individuals who agree to cooperate with law enforcement, judicial, or correctional authorities, frequently place their lives or safety in jeopardy by being a witness or intended witness against persons or groups involved in illegal activities. Accordingly, procedures have been developed to help ensure the safety of these individuals. There are two types of Witness Security cases: Department of Justice (authorized by the Attorney General under Title V of Public Law 91-452, 84 Stat. 933); and Bureau of Prisons Witness Security cases (authorized by the Assistant Director, Correctional Programs Division).
(b) Threats to government officials. Inmates who have made threats to government officials or who have been identified, in writing, by the United States Secret Service as requiring special surveillance.
(c) Broad publicity. Inmates who have received widespread publicity as a result of their criminal activity or notoriety as public figures.
(d) Disruptive group. Inmates who belong to or are closely affiliated with groups (e.g., prison gangs), which have a history of disrupting operations and security in either state or federal penal (which includes correctional and detention facilities) institutions. This assignment also includes those persons who may require separation from a specific disruptive group.
(e) State prisoners. Inmates, other than Witness Security cases, who have been accepted into the Bureau of Prisons for service of their state sentences. This assignment includes cooperating state witnesses and regular state boarders.
(f) Separation. Inmates who may not be confined in the same institution (unless the institution has the ability to prevent any physical contact between the separatees) with other specified individuals who are presently housed in federal custody or who may come into federal custody in the future. Factors to consider in classifying an individual to this assignment include, but are not limited to, testimony provided by or about an individual (in open court, to a grand jury, etc.), and whether the inmate has exhibited aggressive or intimidating behavior towards other specific individuals, either in the community or within the institution. This assignment also includes those inmates who have provided authorities with information concerning the unauthorized or illegal activities of others. This assignment may also include inmates from whom there is no identifiable threat, but who are to be separated from others at the request of the Federal Judiciary or U.S. Attorneys.
(g) Special supervision. Inmates who require special management attention, but who do not ordinarily warrant assignment in paragraphs (a) through (f) of this section. For example, this assignment may include an inmate with a background in law enforcement or an inmate who has been involved in a hostage situation. Others may include those who are members of a terrorist group with a potential for violence.28 C.F.R. § 524.72.
Furthermore, there are well-established procedures that must be followed before an inmate is classified as a CIM case. 28 C.F.R. 524.73. An inmate assigned to the “separation” category, may be initially classified as a CIM case at any time by a “Community Corrections Manager or by appropriate staff at the Central Office, Regional Office, or institution.” 28 C.F.R. 524.73(a). Assignment to “special supervision” however, “may be made only upon the authorization of a Regional Director or the Assistant Director, Correctional Programs Division.” 28 C.F.R. 524.73(a)(3). If an inmate is classified as a CIM case:
The case manager shall ensure that the affected inmate is notified in writing as promptly as possible of the classification and the basis for it. Witness Security cases will be notified through a commitment interview. The notice of the basis may be limited in the interest of security or safety. For example, in separation cases under § 524.72, notice will not include the names of those from whom the inmate must be separated. The inmate shall sign for and receive a copy of the notification form. If the inmate refuses to sign the notification form, staff witnessing the refusal shall indicate this fact on the notification form and then sign the form. Notification is not required for pretrial inmates. Any subsequent modification of a CIM assignment or removal from the CIM system requires separate notification to the inmate.28 C.F.R. § 524.73(b).
Once an initial classification is made, the staff making the initial classification “shall forward to the reviewing authority complete information regarding an inmate's classification.” 28 C.F.R. § 524.73(c). The Regional Office reviews all CIM classification decisions for an assignment to special supervision. Id. The Warden reviews CIM classification decisions for separation assignments. Id. The Central office reviews CIM classification decisions for all future separation assignments. Id. If, after receiving notice of an initial determination that he is a CIM case, an inmate is not notified of a change in status within 60 days, the CIM classification is final. Id. When an inmate is a CIM case, the Warden must clear all transfers, temporary releases, community activities, and escorted trips. 28 C.F.R. § 524.74.
CIM classifications are evaluated at each program review. 28 C.F.R. § 524.75. However, only the “reviewing authority” may remove or modify a CIM classification. Id. An inmate may appeal his or her classification as a CIM case at any time through the Administrative Remedy Program. 28 C.F.R. § 524.76.
Petitioner alleges that he was “notified by staff at USP Canaan that he had been classified as Special Supervision.” (Doc. 1, p. 9). He also alleges that:
He does not meet any of the criterion listed above. Indeed, he is a nonviolent drug offender serving a federal sentence for conspiracy to possess with intent to distribute five (5) kilograms or more of cocaine and 1,000 kilograms of marijuana and for importing these substances. His circumstances do not even resemble those envisioned above. Thus, the BOP erred in classifying Petitioner as a Special Supervision case.
At first blush, it may seem implausible that an inmate has standing to quibble with a BOP custody classification decision. But a CIM assignment of Special Supervision is not a run-of-the-mill custody assignment. Indeed, the assignment carries with it a plethora of onerous privations that typical federal inmates are not subjected to, such as extraordinary delays in sending and receiving mail, including electronic mail and even legal mail; placement in a facility far from his sentencing
region; and a categorical preclusion from placement in a lower security federal facility, which itself precludes Petitioner's participation in certain rehabilitative programs. In other words, the Special Supervision assignment presents an atypical and significant hardship in relation to the ordinary incidents of prison life. See e.g., Sandin v. Conner, 515 U.S 472 (1995). What is more, Petitioner was afforded no due process prior to his classification as a Special Supervision case.
Based on the above, Petitioner prays that this Honorable Court will issue and order instructing the BOP to remove Petitioner from Special Supervision status so that he can serve his sentence in the same manner as all other similarly situated federal inmates.(Doc. 1, pp. 9-10).
In response, the government argues that this petition should be dismissed because Petitioner's due process claims related to his classification as a CIM case are not cognizable habeas claims under § 2241. I agree.
A habeas corpus petition is the proper mechanism to challenge the “fact or duration of a prisoner's confinement.” Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). Petitioner's CIM classification as “special supervision,” and its consequences (delayed mail and the location of Petitioner's place of confinement) do not change the fact or duration of his confinement. See e.g., Dorsey v. Wilson, 2015 WL 3948601 at *4 (D. Minn. June 11, 2015) (finding that an inmate's CIM assignment of “separation” did not change the fact or duration of his confinement); see also Crooker v. Werlinger, 397 Fed.Appx. 777 (3d Cir. 2010) (finding that a petitioner's allegations that prison employees interfered with his mail does not challenge the basic fact or duration of confinement); Sinde v. Gerlinski, 252 F.Supp.2d 144, 148-149 (M.D. Pa. 2003) (finding that a petitioner's challenges to the number of telephone calls he is permitted to make does not challenge the fact or duration of petitioner's confinement and therefore are inappropriately raised by way of habeas corpus petition).
Similarly, the decision regarding a federal inmate's place of confinement is exclusively within the authority of the Bureau of Prisons, and the decision of the location of confinement is “not reviewable by any court.” 18 U.S.C. § 3621(b)(5). A simple, or “garden variety” prison transfer does not fall within the meaning of “execution” of a prisoner's sentence for purposes of bringing a habeas petition under § 2241. Ganim v. Federal Bureau of Prisons, 235 Fed.Appx. 882, 883 (3d Cir. 2007); Briley v. Warden Fort Dix FCI, 703 Fed.Appx. 69 (3d Cir. 2017). To the extent Petitioner argues that, by virtue of his classification he is denied the opportunity to be housed in a prison close to home, this is akin to the type of “garden variety” transfer that is excluded from the scope of § 2241.
IV. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) The Petition (Doc. 1) be DISMISSED.
(2) The Clerk of Court be DIRECTED to close this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the
Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.