United States District Court, D. Minnesota
A. Magnuson United States District Court Judge
matter is before the Court on the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Katherine Menendez dated May 16, 2018. (Docket No. 49.) In
the R&R, Magistrate Judge Menendez recommends dismissing
this matter without prejudice. Petitioner Howard Leventhal
timely objected to the R&R. (Docket No. 56.) Respondent
Warden Rios responded to that objection. (Docket No. 62.)
Court need not repeat the background in this matter because
it is thoroughly discussed in the R&R. In short,
Leventhal has participated in the Residential Drug Abuse
Program (“RDAP”) while incarcerated, but his
performance was unsatisfactory, and the Bureau of Prisons
(“BOP”) determined that he should restart RDAP.
Leventhal appealed that determination, and it was affirmed.
Meanwhile, Leventhal underwent a preliminary review regarding
his Residential Reentry Program (“RRC”)
placement, and the BOP calculated a projected release date of
January 2019. Leventhal then filed this Petition, challenging
the BOP's administration of RDAP, the length of his RRC
placement, the duration of his sentence, and the conditions
of his confinement. Leventhal was later expelled from RDAP,
and that expulsion extended his projected release date by one
year, but no final determination has been made regarding his
Court must review de novo any portion of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); D.
Minn. L.R. 72.2(b). The R&R concludes that the RDAP and
RRC claims are the only cognizable claims under § 2241,
and that these claims are either unexhausted or the Court
lacks subject-matter jurisdiction to review them. (R&R at
6-8.) The R&R determined that the remaining claims should
be dismissed without prejudice because Leventhal requested
voluntary dismissal of his equal protection claims, and
because the other claims are not properly raised in a habeas
petition. (Id. at 5-6.) Finally, the R&R
recommends denying several Motions filed by Leventhal.
(Id. at 8-9.) After conducting the required review
and for the following reasons, the Court adopts the R&R.
Leventhal argues that he is entitled to an evidentiary
hearing, citing Haines v. Kerner, 404 U.S. 519, 521
(1972). But Haines is inapplicable because this is a
habeas matter, and in any event, the facts alleged do not
justify an evidentiary hearing. Leventhal's argument does
not address the R&R's conclusion that the Court lacks
subject-matter jurisdiction over his claims, and the Court
cannot hold an evidentiary hearing if it lacks jurisdiction
over the matter. See, e.g., Morrison v. United
States, No. 01-3354, 2006 WL 156823, at *1 (C.D. Ill.
Jan. 20, 2006) (denying request for evidentiary hearing for
lack of jurisdiction). This argument is therefore rejected.
Leventhal contends that his claims regarding the conditions
of his confinement are properly addressed in a § 2241
petition because he believes that the BOP has not complied
with a Court order regarding his medical condition. But no
such order exists; the sentencing Court merely recommended
that Leventhal “be designated to either FCI-Oxford or a
Correctional Medical Facility in Illinois” because
“[h]e is from Illinois, he has family in Illinois, and
he has a serious medical condition that may require rapid
response.” See Am. J., United States v.
Leventhal, No. 1:13-cr-695(1) (E.D.N.Y. May 9, 2014).
Although the Court can recommend placement in a particular
facility or program, the ultimate placement decision rests
with the BOP. Tapia v. United States, 564 U.S. 319,
331 (2011). Regardless, Magistrate Judge Menendez properly
concluded that these claims are not cognizable in a §
2241 petition. (R&R at 5 (citing Spencer v.
Haynes, 774 F.3d 467, 470 (8th Cir. 2014) (concluding
that a habeas petition is not the proper avenue to raise a
constitutional claim regarding the condition of an
Leventhal maintains that he did not request voluntary
dismissal of his equal protection claims, contrary to the
R&R's determination. He argues that he would have
requested dismissal without prejudice of numerous claims in
his Petition, including the equal protection claims, but only
if a writ of habeas corpus issued in this matter and if the
Court granted leave for him to refile those claims in
Leventhal v. Tomford, 18-cv-320, (D. Minn.), another
matter pending in this District. Regardless whether he sought
dismissal of his equal protection claims, they are also not
cognizable under § 2241. See Spencer, 774 F.3d
at 470. This argument is without merit.
Leventhal argues that exhaustion should not bar his claims,
citing McCarthy v. Madigan, 503 U.S. 140, 154
(1992). But McCarthy held only that exhaustion was
not required to initiate a Bivens action; it does
not apply to a § 2241 petition. 503 U.S. at 149. And
regardless, McCarthy was superseded by the Prison
Litigation Reform Act of 1995, which now requires
“exhaustion of available administrative remedies . . .
for any suit challenging prison conditions.”
Woodford v. Ngo, 548 U.S. 81, 85 (2006);
accord 42 U.S.C. § 1997e(a).
Court agrees with the R&R's analysis, and the
Petition must be dismissed. Accordingly, IT IS HEREBY
Objection (Docket No. 56) is OVERRULED;
R&R (Docket No. 49) is ADOPTED;
Petition for Writ of Habeas Corpus (Docket No. 1) is
DISMISSED without prejudice;
Petitioner's Motion for Temporary Restraining Order