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Alm v. Paul

United States District Court, D. Minnesota

December 1, 2017

Robert Alm, Petitioner,
v.
David Paul, Respondent.

          REPORT AND RECOMMENDATION

          HONORABLE LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE

         This matter came before the undersigned United States Magistrate Judge pursuant to a referral for report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b) and Local Rule 72.1, and upon Petitioner Robert Alm's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, [Docket No. 1].

         For the reasons set forth below, the Court recommends that the Petition for Writ of Habeas Corpus, [Docket No. 1], be DENIED, and this action be DISMISSED without prejudice.

         I. BACKGROUND AND STATEMENT OF FACTS

         On February 11, 2013, Petitioner was sentenced to a controlling term of 84 months' imprisonment for armed bank robbery and use of a firearm during the commission of a crime of violence; he is currently serving that sentence at the Federal Medical Center in Rochester, Minnesota (“FMC Rochester”). (Petition, [Docket No. 1], 1; Peyla-Cossette Dec., [Docket No. 5], 2; Id. at Exh. A, [Docket No. 5-1], 3).

         Petitioner has a projected release date of May 24, 2018. (Id.; Peyla-Cossette Dec., [Docket No. 5-1], 2). Under 18 U.S.C. § 3624(c)(1), the Bureau of Prisons (“BOP”) may allow a prisoner to serve up to the final 12 months of his or her sentence in a residential reentry center (“RRC”) in order to “afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.” In addition, the BOP may “place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” 18 U.S.C. § 3624(c)(2). Because the Petition for Writ of Habeas Corpus presently before the Court involves Petitioner's belief that his refusal to take certain prescribed psychiatric medication has unlawfully denied him RRC placement, a history of Petitioner's psychiatric history as related in the record now before the Court is necessary.

         In 2012, during the pretrial phase of his Federal criminal prosecution in the United States District Court for the Southern District of California for armed bank robbery, forensic psychologist Francisco Gomez diagnosed Petitioner with possible Bipolar Disorder Type II. (Petition, [Docket No. 1-1], 1-2; Id. at Exh. A, [Docket No. 1-2], 1).

         On April 30, 2015, while serving his resulting sentence at the Federal Correctional Institution in Sheridan, Oregon (“FCI Sheridan”), Petitioner was in a fight with another inmate and, as a result, he was placed into disciplinary segregation. (Petition, Exh. A, [Docket No. 1-2], 4, 6). At some point during his time at FCI Sheridan, a Dr. Horowitz diagnosed Petitioner with Bipolar Disorder Type I with Psychotic Features. (See, Petition, Exh. A, [Docket No. 1-2], 1). During his more than 30 days in disciplinary segregation, Plaintiff attempted suicide three times. (Petition, [Docket No. 1-1], 1; Id. at Exh. A, [Docket No. 1-2], 6). Plaintiff claims that he stabilized while on suicide watch, and he did not have further suicidal ideation. (Petition, [Docket No. 1-1], 2). Nevertheless, on July 9, 2015, he was transported to FMC Rochester in July 2015, where Dr. Bocanegra and/or Dr. McKenzie prescribed Petitioner Lithium, which is a mood stabilizer, and Risperdal, which is an antipsychotic. (Petition, [Docket No. 1-1], 2; Peyla- Cossette Dec., Exh. C, [Docket No. 5-1], 11). Under protest, Petitioner took the prescribed medications. (Petition, Exh. A, [Docket No. 1-2], 6).

         In July 2017, Petitioner began seeing Dr. Ivy, a psychiatrist at FMC Rochester, who weaned Petitioner off of the Risperdal. (Petition, Exh. A, [Docket No. 1-2], 6).

         According to Petitioner, in August 2017, he was informed by his case manager that he would receive 4 months' RRC placement, to begin on January 27, 2018. (Petition, [Docket No. 1-1], 1).

         Plaintiff contends that taking the Lithium “essentially lobotomized [him] and [he] was unable to voice [his] concerns and grievances effectively in writing.” (Petition, [Docket No. 1-1], 2). On September 14, 2017, Petitioner began refusing to take his daily dose of Lithium, which at the time was being prescribed by Dr. Dionne Hart, a psychiatrist at FMC Rochester. (Petition, [Docket No. 1-1], 2; Id. at Exh. A, [Docket No. 1-2], 9).

         Petitioner claims that since he began to refuse to take his Lithium, Dr. McKenzie has “attempt[ed] to sabotage” Petitioner's RRC placement. (Petition, [Docket No. 1-1], 2). For example, Petitioner asserts that on September 25, 2017, he read an email Dr. McKenzie had sent to a halfway house which Petitioner claims (1) suggested that Petitioner is a danger to himself and others when he does not take his Lithium and (2) otherwise attempted to persuade the halfway house not to take Petitioner. (Petition, [Docket No. 1-1], 2-3). Moreover, Petitioner claims that Dr. McKenzie informed him that his refusal to take the Lithium could result in Petitioner being denied any RRC placement. (Petition, Exh. A, [Docket No. 1-2], 1).

         On September 26, 2017, Petitioner sent an email to Dr. Hart, in which he expressed his desire to be rediagnosed. (Petition, Exh. A, [Docket No. 1-2], 1). Petitioner asserted that his current diagnosis of Bipolar I with Psychotic Features is inaccurate because it is based “exclusively on [his] behaviors from June 2015, ” which Petitioner asserts were caused by his extended confinement in disciplinary segregation, marijuana use, and his temporary belief at the time that “daydreams [provided] accurate information.” (Id. at 1-3). Petitioner provided Dr. Hart with the citation to an article published by the American Medical Association about “SHU Syndrome, ” which is a temporary condition allegedly produced by extended periods of solitary confinement. (Id. at 1). Petitioner also challenged certain findings made in the context of Dr. Bocanegra's psychiatric evaluation of him in July 2015, especially with regards to his psychiatric history; Petitioner asserted to Dr. Hart that he has no history of mental illness. (Id. at 1-2, 4, 6). In addition, Petitioner detailed the benefits he had noticed since ceasing his Lithium, including better sleep, increased alertness, decreased lethargy, and increased enjoyment. (Id. at 7).

         Petitioner also reported to Dr. Hart that Dr. McKenzie had stated that if Petitioner continued to refuse to take Lithium, Dr. McKenzie would civilly commit Petitioner, hold him indefinitely past his release date, revoke all of Petitioner's good conduct time, recommend to any future probation officer or outside psychiatrist that Petitioner remain on Lithium, and encourage any potential future halfway house not to accept him. (Petition, Exh. A, [Docket No. 1-2], 1). Petitioner asked Dr. Hart to issue a new Psychological Evaluation and Individualized Treatment Plan and engage a private psychiatrist outside of BOP employment to evaluate Petitioner's diagnosis and what medication, if any, Petitioner requires. (Id. at ...


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