The opinion of the court was delivered by: Magistrate Judge Blewitt
District Judge John E. Jones III
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Thomas M. Blewitt, which recommends that the petition of Benjamin Smith ("Smith" or "Petitioner"), a pro se inmate at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"),*fn1 for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied. (Rec. Doc. 4). Petitioner filed objections to the R&R (Rec. Doc. 10),*fn2 but the Respondents have not filed any documentation in opposition to these objections. Nonetheless, the issue is ripe for disposition.*fn3 For the reasons set forth below, the Court will deny the objections and adopt the R&R in its entirety.
When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see alsoMathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
Smith filed the instant § 2241 petition*fn4 against the named Respondents*fn5 on December 20, 2007 (the "Petition"). (Rec. Doc. 1). In said Petition, Smith alleges that on June 20, 2005, while incarcerated at USP-Canaan, he was assaulted by a fellow inmate, subsequently quarantined in a special housing unit ("SHU") pending investigation into the incident, and ultimately released from SHU on June 30, 2005 after being cleared of any wrongdoing. (Id. at 5). On August 8, 2005, Warden Lindsay submitted to Respondent Dodrill a recommendation that Petitioner be transferred from USP-Canaan. (Id.). Pursuant to a memorandum authored by John M. Vanyur (the "Vanyur Memo"), the Assistant Director of the Bureau of Prisons, Dodrill denied transfer until Petitioner was placed in a 10-month disciplinary segregated housing program*fn6 ("DSP") and maintained a clear record during that time. (Id.).
Smith contends that his placement in the DSP was unwarranted because the Vanyur Memo was intended to prevent inmates from manipulating transfers for their own purposes, whereas his transfer was requested by Warden Lindsay as a result of the assault he sustained.*fn7 (Id.). Accordingly, the instant Petition requests habeas relief to the extent that we reverse the judgment of Respondent Dodrill and find that the placement of Petitioner in a 10 month DSP violated due process*fn8 because he was never given notice, an administrative detention order,*fn9 a hearing, or proper review regarding such placement. (Id.). In addition to this declaratory relief, Petition requests that $30,000 in monetary damages be awarded.
B. THE REPORT AND RECOMMENDATION
Initially, we note that Petitioner's previous Fifth Amendment Due Process claim was made pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),*fn10 and was dismissed because it did not implicate a liberty interest. However, we elected to dismiss without prejudice not so that the Petitioner could reassert the Bivens claim in a habeas corpus motion, but so that the Petitioner could incorporate the averments as the basis for the habeas corpus motion. Nonetheless, it appears to us, as it evidently did to Magistrate Judge Blewitt, that Smith used the instant Petition to advance both theories.*fn11 Thus, Magistrate Judge Blewitt's February 13, 2008 R&R recommends that both the habeas petition and the due process claim be dismissed. We will address these requests in turn, beginning with the habeas petition.
In quoting Third Circuit precedent, Magistrate Judge Blewitt noted that when an inmate's complaint is to "a condition of confinement such that a finding in [the inmate's] favor would not alter his sentence or undo his conviction," that circumstance cannot support a petition for habeas corpus. See Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).*fn12 Since a ruling in the Petitioner's favor would not alter his sentence or undo his conviction,*fn13 and since the Magistrate Judge concluded that the Petition was not challenging a disciplinary punishment or seeking expungement of his prison record as to his placement in DSP, he determined that the Petition was not a proper habeas petition and therefore recommended its dismissal.
Further, the Magistrate Judge opined that the Petitioner's averments could not meet the standards of a due process liberty claim. Quoting United States Supreme Court precedent, he noted, "The Due Process clause protects a prisoner's right to freedom from restraint [ when said restraint] . . . imposes atypical and significant hardship in relation to the ordinary incidents of prison life."*fn14 (Rec. Doc. 4, p. 15 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995))). The Magistrate Judge proceeded to cite Sandin for the proposition that "discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by the court of law." Id. at 486. Indeed, Magistrate Judge Blewitt acknowledged that inmates who are considered security risks are often removed from the general prison population and placed in a more restrictive custodial environment. See Fraise v. Terhune, 283 F.2d 506 (3d Cir. 2002). Cognizant that Petitioner had been in the DSP for approximately seven months, the Magistrate Judge noted that transfers of prisoners from the general population into administrative or disciplinary segregation units for as long as fifteen months were not uncommon when the inmate was deemed a security risk. See Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997).
Since the Petitioner's conditions of confinement were more akin to the conditions in Francis and Fraise than those in Wilkinson, and since the term of confinement in the DSP was less than that in Griffin, the Magistrate Judge concluded that the Petitioner's liberty interests were not violated by his placement in DSP without a hearing, detention order, or the like. Accordingly, Magistrate Judge Blewitt determined not only that Petitioner could not maintain a due process claim, but also that Petitioner's due process assertions could not form the basis of a habeas petition. Rather, instead of supporting a Bivens claim or a habeas corpus petition, the Magistrate Judge noted that Petitioner's allegations might better support a cause of action under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq.*fn1 ...