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Rodriguez v. Ratledge

United States District Court, W.D. Virginia, Roanoke Division

February 23, 2017

OSIEL RODRIGUEZ, Petitioner,
v.
C. RATLEDGE, Respondent.

          MEMORANDUM OPINION

          NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

         Osiel Rodriguez, a federal inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant 28 U.S.C. § 2241, challenging his designation by the Federal Bureau of Prisons (“BOP”) to the Administrative Maximum BOP Facility in Florence, Colorado (“ADX”). Respondent filed a motion for summary judgment and this matter is ripe for disposition.[1] For the reasons stated herein, I will grant respondent's motion for summary judgment.

         I.

         Rodriguez alleges that he was denied due process before being placed at ADX in January 2016 after his third attempted escape from lower security facilities. Specifically, Rodriguez claims that the hearing administrator was not fair and impartial because he considered all three of Rodriguez's prior attempted escapes and “knowingly relied on an invalid, collaterally estopped disciplinary hearing officer's decision . . . as a basis for his ADX placement decision.” In 2003 and 2006, Rodriguez was found guilty of disciplinary infractions for attempting to escape from Federal Correctional Institution Coleman in Florida and United States Penitentiary (“USP”) Atwater in California. After his second attempted escape, Rodriguez was sent to ADX for approximately 7 years. Rodriguez arrived at USP Lee in Virginia from ADX on August 6, 2013 and attempted to escape again on or about September 22, 2014.

         On November 20, 2014, Rodriguez was charged with Disciplinary Code Violations 102(A): Attempted Escape, and 111(A): Attempted Introduction of Narcotics. On January 30, 2015, after a hearing, the Disciplinary Hearing Officer (“DHO”) determined that Rodriguez did attempt escape but did not attempt to introduce narcotics, and sanctioned him to, inter alia, loss of good conduct time. Additional details of this disciplinary conviction are discussed in Rodriguez v. Zych, Civil Action No. 7:15cv00082 (W.D. Va. Feb. 11, 2016). In that case, Rodriguez challenged the disciplinary proceeding, arguing that the DHO hearing was precluded, and thus illegal, based on the doctrines of collateral estoppel and res judicata. On respondent's motion for summary judgment, I concluded that Rodriguez failed to exhaust administrative remedies before filing the action and that his claims were nevertheless meritless.[2]

         After his third attempted escape, Rodriguez was referred for an ADX General Population Hearing before the Hearing Administrator. Rodriguez received notice of the hearing on August 3, 2015. The notice outlined Rodriguez's three prior attempted escapes and stated that his conduct “creates a risk to institution security and good order [and] poses a risk to the safety of staff, inmates or others, or to public safety.” It also noted that Rodriguez demonstrated that he “is unable to function in a less restrictive correctional environment.” A hearing was conducted on August 5, 2015 and Rodriguez participated in it by making a statement and submitting documentary evidence. The Hearing Administrator determined that Rodriguez met the criteria for placement at ADX and Rodriguez acknowledged receipt of the Hearing Administrator's written report on August 10, 2015. Rodriguez appealed the ADX placement decision to no avail.

         The BOP's general population units at ADX are designed for male inmates who have demonstrated an inability to function in a less restrictive environment without being a threat to others, or to the secure and orderly operation of the institution. Wardens refer inmates to ADX by submitting proposed cases to the BOP's North Central Regional Director. A referral packet is generated which contains the Warden's memorandum citing the specific rationale supporting the recommendation, copies of all disciplinary reports, investigative materials, or other official documentation related to the behavior prompting the referral, a current progress report, a copy of the inmates latest Presentence Investigation Report, and a recent psychiatric or mental health evaluation. The North Central Regional Director has final review authority for referrals to the ADX general population unit. After a referral to ADX has been made, BOP policy provides that the inmate should receive notice of the transfer hearing, an opportunity to participate in the hearing, a written recommendation by the hearing officer, and administrative review of the regional director's decision through the remedy process.

         Rodriguez filed this habeas petition, alleging that: 1) the Notice of ADX Referral Hearing listed all three of his escape attempts, without identifying “which one triggered the ADX hearing referral, ” and, thus, “tainted” his “chances of a fair and impartial consideration for ADX placement”; and 2) the Hearing Administrator's “sense of impartiality” toward Rodriguez was questionable because he was “intimate[ly]” familiar with the circumstances surrounding the disciplinary proceedings for Rodriguez's third attempted escape. As relief to his petition, Rodriguez seeks a declaration that the ADX referral hearing was invalid.

         II.

         Rodriguez filed this action as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. A federal court may only grant a petition for writ of habeas corpus if the federal petitioner can demonstrate that he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). A habeas corpus petition is the correct method for a prisoner to challenge “the very fact or duration of his confinement, ” and where “the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; See Nelson v. Campbell, 541 U.S. 637, 643 (2004); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, ” whereas “requests for relief turning on circumstances of confinement may be presented” in a civil rights action); Moore v. Driver, No. 1:07cv166, 2008 U.S. Dist. LEXIS 85896, at *7, 2008 WL 4661478, at *3 (N.D. W.Va. Oct. 21, 2008) (a claim regarding custody classification cannot be raised in the context of a § 2241 petition). If a successful conditions of confinement challenge would not necessarily shorten the prisoner's sentence, then § 1983 or Bivens is the appropriate vehicle. See Wilkinson v. Dotson, 544 U.S. 74 (2005). “[A] request by a federal prisoner for a change in the place of confinement is properly construed as a challenge to the conditions of confinement and, thus, must be brought pursuant to [Bivens].” United States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006); Valenteen v. Driver, No. 1:08cv89, 2009 U.S. Dist. LEXIS 12943, at *5, 2009 WL 304835, at *2 (N.D.W.V. 2009).

         In his § 2241 petition, Rodriguez does not allege any ground on which he is entitled to a shorter term of confinement. Because the core of his complaint is clearly not concerning the fact or duration of his incarceration, his claim is not properly before me as a habeas claim under § 2241.

         III.

         In an appropriate case, a habeas petition may be construed as a civil rights complaint. See Johnson v. Matevousian, No. 1:15cv600, 2016 U.S. Dist. LEXIS 28947, at *8, 2016 WL 8201061, at *3 (E.D. Cal. Mar. 7, 2016). In this case, I have jurisdiction over Rodriguez's due process claims as raised in an action pursuant to Bivens. However, Rodriguez's allegations are insufficient to state a claim against the named defendant. See West v. Atkins, 487 U.S. 42 (1988) (to state a cause of action under § 1983, a plaintiff must allege facts indicating that he has been deprived of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law). Even if Rodriguez named and alleged facts against a proper defendant, his allegations nevertheless fail to state a claim.[3]

         The Fifth Amendment provides that no person shall “be deprived of life, liberty, or property, without due process of law. U.S. Const. amend. V. “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty, ' or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In the penological context, not every deprivation of liberty at the hands of prison officials has constitutional dimension because incarcerated persons retain only a “narrow range of protected liberty interests.” Hewitt v. Helms, 459 U.S. 460, 467 (1983). “[B]efore [a prisoner] can cry foul as to inadequate process, he must identify a liberty interest in avoiding transfer” to ADX. McAdams v. Wyoming Dept. of Corr. 561 F. App'x 718, 720 (10th Cir. 2014) (citing Wilkinson, 545 U.S. at 221, and Rezaq v. Nalley, 677 F.3d 1001, 1016 (10th Cir. 2012)). “[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson, 545 U.S. at 221. A protected liberty interest only arises from a transfer to harsher conditions of confinement when an inmate faces an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Id. at 223. Rodriguez does not allege, and the record does not indicate, that his transfer to ADX imposes an atypical and significant hardship compared to the ordinary incidents of prison life. Further, courts have long held that a prisoner has no constitutional right to select a particular correctional facility for his placement or to be transferred to a different facility upon request. See Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983); Meachum v. Fano, 427 U.S. 215, 225 (1976). Instead, 18 U.S.C. ยง 3621(b) provides the BOP with broad discretion to ...


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