United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Marvin Leon Clair, filed a
Petition for Habeas Corpus Under 28 U.S.C. § 2241
(“§ 2241”). The action was referred to
United States Magistrate Judge James P. Mazzone for initial
review and report and recommendation pursuant to Local Rule
of Prisoner Litigation Procedure 2.
magistrate judge filed a report and recommendation
recommending that this matter be dismissed with prejudice.
ECF No. 26 at 16. The magistrate judge informed the parties
that if they objected to any portion of the report and
recommendation, they were required to file written objections
within 14 days after being served with copies of the report.
Id. at 16-17. Neither party filed objections.
pro se petitioner is currently incarcerated at FCI
Morgantown, where he is serving a sentence imposed by the
United States District Court for the Eastern District of
Virginia. ECF No. 1 at 1-2. The petitioner filed a Petition
for Habeas Corpus Under 28 U.S.C. § 2241, in which he
alleges that the Federal Bureau of Prisons
(“BOP”) unlawfully, arbitrarily and capriciously
expelled him from the second phase of residential drug abuse
(“RDAP”) treatment. Id. at 5. In the
attached memorandum of law in support of his petition, the
petitioner argues that “[a]lthough the treatment staff
has discretion in the assessment of a program
participant's progress . . . [t]he treatment staff must
cite unsatisfactory progress or inappropriate behaviors (i.e.
plural or multiple) that can not be resolved with
intervention prior to expulsion.” ECF No. 1-1 at 4
(emphasis omitted). The petitioner states that “[t]he
isolated incident . . . for which no incident report nor
formal warning was issued simply does not meet the threshold
for expulsion.” Id. at 5 (emphasis omitted).
The petitioner asserts that the Northern District of West
Virginia has “opined that [two] formal warnings was an
adequate standard to support expulsion in the follow-up care
module.” Id. Specifically, the petitioner
requests that the Court rescind his discharge from the
program and direct FCI Morgantown to place him back in the
follow-up portion of the RDAP, to be completed at FCI
Morgantown. Id. at 6. The petitioner has also filed
two supplemental briefs in support of his petition.
See ECF Nos. 4 and 7.
respondent then filed a motion to dismiss or in the
alternative, a motion for summary judgment. ECF No. 13. In
the accompanying memorandum, the respondent argues that the
BOP's decision to expel petitioner from the RDAP is not
subject to judicial review. ECF No. 13-1 at 5-7. Moreover,
the respondent argues that the petitioner's claims are
meritless because: (1) inmates do not have a liberty interest
in early release from a valid sentence, and (2) the BOP has
broad discretion to expel the petitioner. Id. at
8-12. Lastly, the respondent notes that the petitioner has
been readmitted into the RDAP program at FCI Morgantown, and
has received all the relief he is entitled. Id. at
12-13. In support of his motion to dismiss, the respondent
attaches a declaration by a BOP Psychology Treatment Programs
Coordinator at the Mid-Atlantic Regional Office, Christina
Ganz, Psy.D. (“Dr. Ganz”), indicating that the
petitioner did not actively participate in the program, and
that he received formal warnings of expulsion. ECF No. 13-2
petitioner filed a response to the respondent's motion to
dismiss, or in the alternative, motion for summary judgment.
ECF No. 20. The petitioner first argues that judicial review
is available when an agency acts outside its statutory limits
or has violated the Constitution, and that since the
petitioner is alleging the “BOP violated its own
statute . . . review is appropriate.” Id. at
4-5. In response to the respondent's arguments that the
petitioner's claims are meritless, the petitioner asserts
that the program violated its standards. Id. at 5-6.
He also contends that the case is not moot even though he was
readmitted to the RDAP program at FCI Morgantown, since
“[i]f the [C]ourt provides the relief requested,
[p]etitioner will be immediately placed back in follow-up
services, where he was wrongfully expelled, and will withdraw
from the entry program.” Id. at 6. The
petitioner further asserts that although he may not have a
liberty interest in early release, he has a right to have his
case heard in order to change allegedly improper action.
Id. at 8.
petitioner then filed a motion to strike Dr. Ganz's
declaration. ECF No. 19. In the motion, the petitioner argues
that Dr. Ganz does not have personal knowledge to testify
regarding the matters stated in the declaration. Id.
respondent filed a response to the petitioner's motion to
strike. ECF No. 21. In the response, the respondent asserts
that Dr. Ganz's declaration consists of facts, not
speculation, opinions, or inferences. Id. at 2.
Specifically, the respondent notes that in order to perform
her duties, Dr. Ganz has access to official records.
Id. at 2-3. Moreover, the respondent alleges that
Dr. Ganz became personally involved in the petitioner's
case while he was incarcerated in another part of her region.
Id. at 3.
petitioner then filed a reply to the respondent's
response to petitioner's motion to strike. ECF No. 22. In
the reply, the petitioner asserts that Dr. Ganz's contact
with him “has nothing to do with [his] claims in the
instant case.” Id. at 1.
petitioner has also filed a motion to expedite. ECF No. 24.
In that motion, the petitioner explains that “[h]is
current home confinement eligibility date is set by the [BOP]
for 12/18/18. However, if the Court rules in [his] favor and
places him back into RDAP follow-up care, he would be subject
to immediate release.” Id. at 2.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in