David R. Myrland, Petitioner,
United States and Scott P. Fisher, Warden Respondents.
David R. Myrland, pro se.
Pamela A. Marentette, Esq., Office of the United States Attorney, on behalf of Respondents.
REPORT AND RECOMMENDATION
TONY N. LEUNG, Magistrate Judge.
This matter is before the undersigned United States Magistrate Judge on David R. Myrland's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [Docket No. 1]. The case has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court recommends that the habeas petition be denied.
Petitioner David A. Myrland ("Myrland") is a federal inmate currently designated to the Federal Correctional Institution in Sandstone, Minnesota ("FCI-Sandstone"). Declaration of Julie Groteboer ("Groteboer Decl.") ¶ 3, Attach. A, Public Information Data) [Doc. No. 6.] Myrland is serving a 40-month sentence, with three years of supervised release for Transmission of Threatening Interstate Communication, in violation of 18 U.S.C. § 875, imposed by the United States District Court, Western District of Washington. ( Id. ) Myrland's projected release date is December 20, 2013, via good conduct time release. ( Id. )
On July 16, 2012, Heather Kensy, a case manager at FCI-Sandstone, reviewed Myrland's eligibility for Residential Reentry Center ("RRC") placement under the Second Chance Act. (Decl. of Heather Kensy ("Kensy Decl. 1") ¶ 3, Attach. A, Review for Residential Reentry Center) [Doc. No. 7.] She recommended 90-120 days placement in a RRC. ( Id. ¶ 9.) On November 8, 2012, Myrland filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Pet.) [Doc. No. 1.] He alleges Respondents failed to consider all necessary factors in the RRC placement determination, failed to consider his request for sentence reduction, and violated the Equal Protection Clause in making his RRC placement determination, in violation of 18 U.S.C. §§ 3621, 3582, and the Fifth and Fourteenth Amendments of the United States Constitution. (Pet. ¶¶ 2.6-2.12, 3.1.) Myrland requests declaratory relief, an order demanding compliance with 18 U.S.C. § 3621, and all relief available under 28 U.S.C. § 2241, including twelve-month placement in an RRC. (Pet. ¶¶ 3.1-3.4.)
Respondents contend Warden Scott Fisher, as Myrland's custodian, is the only proper respondent, and the United States should be dismissed as a party. (United States' Resp. to Pet. For Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 ("Resp. to Pet.") at 2-3.) Respondents also contend Myrland's petition should be dismissed for failure to exhaust administrative remedies. ( Id. at 11-13.) Alternatively, Respondents argues the petition should be denied because Myrland's claims lack merit. ( Id. at 13-23.)
A. Jurisdiction and the United States as a Party
Myrland styled his petition "Civil action for writ of habeas corpus and other relief" citing 28 U.S.C. §§ 2201, 2241. Jurisdiction exists under 28 U.S.C. § 2241 when the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). "[C]hallenges brought by federal prisoners that implicate the fact or duration of confinement but do not stem from the original conviction or sentence can be brought only under 28 U.S.C. § 2241." Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (quoting Walker v. O'Brien, 216 F.3d 626, 632-33 (7th Cir. 2000)). The Declaratory Judgment Act, 28 U.S.C. § 2201, "enlarges the range of remedies available in federal courts but does not confer jurisdiction." Mhanna v. U.S. Dept. of Homeland Sec. Citizenship and Immigration Serv., Civil No. 10-292 (JRT/LIB) 2010 WL 5141803, at *20 (D. Minn. Dec. 13, 2010) (quoting Patel v. Chertoff, No. 4:06CV01207ERW, 2007 WL 1223553, at *2 (E.D. Mo. April 24, 2007)). The proper respondent in a § 2241 action is the petitioner's custodian. 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).
Myrland filed a Motion to Strike, where he contends the United States is a proper party for review of an agency decision under the Administrative Procedure Act. ("APA") (Mot. to Strike Defs' Resp. to Compl. ("Mot. to Strike") ¶¶ 2.2, 2.4) [Doc. No. 13]. A claim, however, may only be brought under the APA if there is no other adequate remedy in court. 5 U.S.C. § 704. Myrland's claim can be brought under § 2241. See Stern v. Federal Bureau of Prisons, 601 F.Supp.2d 303, 304 (D.D.C. 2009) (where claim could be brought in § 2241 habeas petition, relief was precluded under the APA). The United States is not a proper respondent; therefore, the Court recommends dismissing the United States.
B. Administrative Remedies
An inmate who wishes to challenge an action of the BOP in a § 2241 petition must ordinarily first exhaust his administrative remedies. Mathena v. U.S., 577 F.3d 943, 946 (8th Cir. 2009); United States v. Chappel, 208 F.3d 1069, 1069 (8th Cir. 2000) (per curiam). The exhaustion prerequisite is judicially created and is not jurisdictional. Lueth v. Beach, 498 F.3d 795, 797 n.3 (8th Cir. 2007). Therefore, a court may proceed to the merits of the petition without regard to exhaustion. ( Id. ) In determining whether to require exhaustion, courts should balance the interests of the individual in prompt access to a federal forum against the institutional interests favoring exhaustion. Whentworth v. Fisher, Civ. No. 10-2270 (JNE/JSM), 2011 WL 5077612, at *5 (D. Minn. Oct. 7, 2011).
The BOP has a three-tier administrative remedy program. 28 C.F.R. §§ 542.13-542.15. The inmate's first step is to attempt informal resolution of his grievance with staff, and if unsuccessful, file a formal grievance on form BP-9 with the Warden. Id. §§ 542.13(a), 542.14(a). The inmate's second step, if dissatisfied with the Warden's response, is to appeal to the appropriate Regional Director using form BP-10. Id. § 542.15(a). The inmate's third step, if dissatisfied with the Regional Director's response, is to appeal to the General Counsel (Central Office) using form BP-11. Id. An inmate has exhausted his administrative remedies when the inmate receives a response from the Central Office or when the Central Office has exceeded its time to reply. Id. §§ 542.15(a), 542.18. The total response time through each level of review is 90 days. Id. § 542.18 (the Warden has twenty calendar days to respond, the Regional Director has thirty calendar days to respond, and the General Counsel has forty calendar days to respond).
Myrland asserts he commenced his administrative remedies but admits he did not exhaust his remedies because "they are too slow" to allow him to seek judicial relief for one year of RRC placement as of December 20, 2012. (Pet. ¶ 2.10.) Correctional Counselor Forest received Myrland's informal request for resolution and responded by providing him with a formal grievance form (BP-9) on October 31, 2012. (Pl's Reply to Opp. to Mot. to Strike, Ex. A) [Doc. No. 27-1]. Assuming Myrland did not learn of his RRC placement decision until October 2012, as he asserts, it is unlikely he would have exhausted his administrative remedies before December 20, 2012. He would have been unable to seek the full relief requested here. Therefore, the Court recommends waiving the exhaustion requirement. See Tovey v. Cruz, Civil No. 09-508 (PAM/RLE), 2010 WL 391336, at *8 (D. Minn. Jan. 25, 2010) (excusing failure to exhaust administrative remedies where it was already too late for prisoner to obtain the relief sought).
C. Motion to Strike
Myrland filed a Motion to Strike the response to the habeas petition, with supporting documentation, alleging the response was dilatory, false and calculated to mislead, and wasted resources. (Mot. to Strike at 1-2.) Moreover, the response failed to provide a legal or factual basis for relief. ( Id. ) Myrland explained that he requests habeas relief as an alternative to other relief available for Respondent's violations of 18 U.S.C. §§ 3621, 3582 and 42 U.S.C. § 17541. ( Id. ¶ 2.1) Myrland alleges Respondent violated 42 U.S.C. § 17541 by failing to offer or notify him of an incentive program that offers an extended RRC placement. ( Id. ¶¶ 1.3, 3.13-4.3, 8.4.) Myrland also alleges that Respondent wasted time and resources because Respondent did not conform to stylistic rules in response to the habeas petition. ( Id. ¶¶ 1.1, 1.4.)
Respondent denied Myrland's claims of abuse of discretion in determining RRC placement; denied lying about informing Petitioner of his RRC placement determination in July 2012; denied lying about not receiving Petitioner's request for a sentence reduction; denied granting greater RRC placement to others with greater financial resources; and denied misleading the court and wasting resources. (Resp. of Resp. to Pet'rs Mot. to Strike ("Resp. to Mot. to Strike")) at 1 [Doc. No. 21.] Respondent also submitted additional background facts supported by declarations and exhibits. [Doc. Nos. 22-24.] Myrland then replied to the response. (Pl's Reply to Defs' Opp. to Mot. to Strike) ("Reply to Opp. to Strike") [Doc. Nos. 26, 27.]
Having reviewed all materials related to the Motion to Strike, the Court finds no basis to grant the motion. See Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (striking a pleading is an extreme measure and is disfavored). Myrland has merely set out his legal and factual disputes with Respondent, none of which compels the Court to strike anything in the response. The Court will treat the Motion to Strike, and the materials in support and opposition to the motion, as additional briefing to the habeas petition and the response.
D. Motion for Partial Summary Judgment
On April 1, 2013, Myrland filed a Motion for Partial Summary Judgment on all claims but his equal protection claim. (Pl's Mot. for Partial Summ. J., ¶ 5) [Doc. No. 29.] Myrland seeks summary judgment on the basis that Respondent, in making his RRC placement decision, failed to consider the nature and circumstances of his offense and his history and characteristics. ( Id. ) He also seeks summary judgment on the basis that Respondent never considered his request for a motion for early release. ( Id. ¶¶ 19-22.) Respondent contends Myrland is not entitled to judgment as a matter of law, and that some of his allegations were also contained in another habeas action, Civil Case No. 12-644, which was summarily dismissed. (Resp't Resp. to Pet'r Mot for Partial Summ. J.) at 1) [Doc. No. 32.] In reply, Myrland asserts that while some of the facts are the same, his habeas actions are distinct. (Pl's Reply to Defs' Opp. to Mot. for Summ. J., ¶¶ 5, 6.) [Doc. No. 33.] Here, he seeks a greater amount of time in an RRC, and for the Warden to petition the sentencing court for a sentence reduction. ( Id. ¶¶ 3, 4.) In Civil Case No. 12-644, he seeks a declaration that the prosecution violated his Fifth Amendment right to due process. ( Id . ¶ 5.)
E. RRC Placement Determination
1. Legal and Regulatory Framework
The Second Chance Act of 2007, Public Law No. 110-199, 122 Stat. 657, effective April 9, 2008, amended 18 U.S.C. § 3624(c) Prerelease Custody, to provide, in relevant part:
(1) In general. - The Director of the Bureau of Prisons shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed twelve months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that ...