United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
Roderick C. Young United States Magistrate Judge.
Lugo, a former federal inmate proceeding pro se,
brings this petition pursuant to 28 U.S.C. § 2241
("§ 2241 Petition," ECF No. 1). In Lugo's
§ 2241 Petition, he raises the following claim for
Claim One: The Bureau of Prisons' ("BOP")
"statutory interpretation of 18 U.S.C. §
3621(e)(2)(B) is in error as a matter of law."
(§ 2241 Pet. 6.)
has filed a Motion to Dismiss, or in the alternative, a
Motion for Summary Judgment ("Motion for Summary
Judgment," ECF No. 5),  asserting, inter alia,
that Lugo's claim lacks merit. Lugo has responded. (ECF
No. 8.) For the reasons set forth below, it is RECOMMENDED
that the Motion for Summary Judgment be GRANTED and the
§ 2241 Petition be DENIED because Lugo's claim
regarding the BOP's statutory interpretation of 18 U.S.C.
§ 3621(e)(2)(B) is without merit.
Summary Judgment Standard
judgment must be rendered "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). It is the responsibility of the party
seeking summary judgment to inform the Court of the basis for
the motion and to identify the parts of the record that
demonstrate the absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). "[W]here the nonmoving party will bear the
burden of proof at trial on a dispositive issue, a summary
judgment motion may properly be made in reliance solely on
the pleadings, depositions, answers to interrogatories, and
admissions on file." Id. at 324 (internal
quotation marks omitted). When the motion is properly
supported, the nonmoving party must go beyond the pleadings
and, by citing affidavits or '"depositions, answers
to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for
trial.'" Id. (quoting former Fed.R.Civ.P.
56(c) and 56(e) (1986)).
reviewing a summary judgment motion, the Court "must
draw all justifiable inferences in favor of the nonmoving
party." United States v. Carolina Transformer
Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). However, a mere scintilla of evidence will not
preclude summary judgment. Anderson, 477 U.S. at 251
(citing Improvement Co. v. Munson, 81 U.S. (14
Wall.) 442, 448 (1872)). "[T]here is a preliminary
question for the judge, not whether there is literally no
evidence, but whether there is any upon which a jury could
properly proceed to find a verdict for the party . . . upon
whom the onus of proof is imposed." Id.
(quoting Munson, 81 U.S. at 448). Additionally,
"Rule 56 does not impose upon the district court a duty
to sift through the record in search of evidence to support a
party's opposition to summary judgment." Forsyth
v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting
Skolak v. Tenneco Resins, Inc., 953 F.2d 909, 915,
915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P.
56(c)(3) ("The court need consider only the cited
support of his Motion for Summary Judgment, Respondent
submits: (1) the Declaration of Sandra K. Long, a Paralegal
Specialist at the BOP's Designation and Sentence
Computation Center in Grand Prairie, Texas ("Long
Decl.," ECF No. 6-1); (2) a copy of a Change Notice to
BOP Program Statement 5331.02, Early Release Procedures Under
18 U.S.C. § 3621(e), with an effective date of May 26,
2016 (id. Attach. 1, ECF No. 6-2, at 2); (3) a copy
of BOP Program Statement 5331.02, Early Release Procedures
Under 18 U.S.C. § 3621(e), with an effective date of
March 16, 2009 (id. Attach. 1, ECF No. 6-2, at
3-15); (4) a copy of BOP Program Statement 5162.05, dated
March 16, 2009 (id Attach. 2, ECF No. 6-3); and, (5)
a copy of Lugo's Request for § 3621(e) Offense
Review form, dated July 27, 2016 (id Attach. 3, ECF
signed his § 2241 Petition under penalty of perjury.
(§ 2241 Pet. 9.) Lugo also submitted exhibits with his
§ 2241 Petition. (ECF No. 1-1, at 1-10.) The Court will
consider these submissions in determining the propriety of
the Motion for Summary Judgment. See Fed. R. Civ. P.
56(c). Additionally, Lugo submitted a Response in Opposition,
responding to Respondent's motion, and the Court will
consider Lugo's arguments in support of his position.
(ECF No. 8.)
the Court notes that in Lugo's Response in Opposition, in
addition to responding to Respondent's motion, it appears
that Lugo seeks to add a vague, new "counter
cross-claim," regarding alleged "selective
enforcement of regulations and [Residential Drug Abuse
Program ("RDAP")] directives." (Id.
at 7.) To the extent that Lugo seeks to add vague, new claims
in his Response in Opposition, the Court notes that Lugo
cannot add new claims by a passing reference in this
submission. See Snyder v. United States, 263
Fed.Appx. 778, 779-80 (11th Cir. 2008) (refusing to consider
petitioner's statement in a reply brief as an attempt to
amend his § 2255 motion to add a new claim); E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 847
F.Supp.2d 843, 851 n, 9 (E, D. Va. 2012), Equity in
Athletics, Inc. v. Dep't of Educ, 504 F.Supp.2d 88,
111 (W.D. Va. 2007) (citations omitted) (explaining that
"new legal theories must be added by way of amended
pleadings, not by arguments asserted in legal briefs").
Therefore, to the extent that Lugo seeks to add any new
claims in his Response in Opposition,  the new claims
will receive no further consideration in this action.
light of the foregoing principles and submissions, the
following facts are established for purposes of the Motion
for Summary Judgment. The Court draws all permissible
inferences in favor of Lugo.
Summary of Pertinent Facts
Lugo filed his § 2241 Petition, he was "serving a
46-month sentence imposed by the United States District Court
for the Southern District of Florida due to his conviction
for Conspiracy to Violate the RICO [Racketeer Influenced and
Corrupt Organizations] Act, in violation of 18 U.S.C. §
1962(d)." (Long Decl. ¶ 2.) In her Declaration, Ms.
In this case, the offense of conviction is a conspiracy, and
the underlying offense is Robbery, in violation of 18 U.S.C.
... [T]he United States Probation Officer recommended a
five-level SOC [Specific Offense Characteristic] enhancement
. . . because a firearm was brandished or possessed.
Moreover, in the Judgment and Commitment Order's
Statement of Reasons, the sentencing court adopted the PSR
[Pre-Sentence Report] "without change," thereby
affirming and adopting the recommended five-level SOC
Lugo was serving his sentence at FCI Petersburg, the Drug
Abuse Program Coordinator ("DAPC") requested that
Lugo receive an offense review pursuant to 18 U.S.C. §
3621 (e) to determine whether Lugo was eligible for early
release should he successfully complete the BOP's RDAP.
(See Id. Attach. 3, ECF No. 6-4, at 2.) To complete
the offense review, Lugo's offense records were submitted
to the BOP's Designation and Sentence Computation Center
("DSCC"). (Id. ¶¶ 1, 4, 9.) In
completing the offense review,
the DSCC Legal Department determines whether an inmate is
precluded from receiving early release after reviewing the
inmate's DSCC-maintained electronic sentence computation
file, which includes the Judgment and Commitment Order[, ]
... Statement of Reasons[, ] .. . Pre-Sentence Investigation
Report[, ] .. . and any other relevant sentencing
documentation. The final decision ...