United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
HONORABLE LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE
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].
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.
BACKGROUND AND STATEMENT OF FACTS
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).
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.
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).
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).
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).
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).
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).
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).
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).
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 ...