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Posey v. Kruger

United States District Court, M.D. Pennsylvania

May 18, 2015

MICHAEL POSEY, Plaintiff
v.
WARDEN J. E. KRUGER, et al., Defendants

MEMORANDUM

SYLVIA H. RAMBO, UNITED STATES DISTRICT JUDGE.

Plaintiff Michael Posey, an inmate currently incarcerated at the Federal Medical Center in Butner, North Carolina (“FMC-Butner”), initiated two actions on February 21, 2014 and April 23, 2014, respectively, [1] with complaints pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 & 2671 et seq. By order dated June 5, 2014, the two actions were consolidated and Plaintiff’s amended complaint (Doc. 23) is now proceeding under the captioned action, a Bivens[2] civil rights action. In the amended complaint, Plaintiff alleges that deliberate indifference and negligence by Defendants Warden J.E. Krueger and Case Management Coordinator Brandyn Cozza in computing his sentences and parole revocation term caused his confinement at the Federal Correctional Institution at Schuylkill (“FCI-Schuylkill”) in Minersville, Pennsylvania, to be extended by one hundred (100) days. Both Defendants were Bureau of Prisons’ (“BOP”) employees at FCI-Schuylkill at the time of the amended complaint’s allegations. Plaintiff seeks monetary damages and declaratory relief.

Presently before the court is a motion to dismiss and for summary judgment, filed by Defendants. (Doc. 32.) For the reasons set forth below, the motion for summary judgment will be granted in favor of Defendants. In addition, Plaintiff’s motion to stay these proceedings (Doc. 38), previously deferred pending disposition of the motion to dismiss and for summary judgment (see Doc. 39), will be deemed moot.

I. Background

A. Facts

In support of the instant motion, Defendants have submitted a statement of material facts. (Doc. 34.) Because Plaintiff has failed to file an opposing statement of material facts as required by Middle District Local Rule 56.1, the following facts submitted by Defendants are deemed admitted.

The BOP’s Designation and Sentence Computation Center (“DSCC”) is responsible for computing the sentences imposed by United States District Courts. (Id. ¶ 6.) BOP staff at local institutions do not conduct sentence computations. (Id. ¶ 7.) Rather, any award of jail credit or application of United States Parole Commission (“USPC”) orders contained within USPC Notices of Action are the responsibility of the DSCC. (Id. ¶ 8.) Thus, the individual Defendants named in this action and located at FCI-Schuylkill did not compute Plaintiff’s sentences or the USPC parole revocation term. (Id. ¶ 9.)

The background with respect to Plaintiff’s sentence computation is as follows. Initially, Defendants assert that Plaintiff’s sentences have been computed in accordance with statutory law, as well as the BOP’s Program Statement 5880.33, District of Columbia Sentence Computation Manual. (Id. ¶ 10.) On July 11, 2011, Plaintiff was arrested by local authorities in Arlington County, Virginia, and charged with possession with intent to distribute marijuana (Case No. GC11002467-00) and possession of a controlled substance (Case No. GC11002466-00). (Id. ¶ 11.) On August 24, 2011, Plaintiff was arrested by local authorities in Fairfax County, Virginia, and charged with possession with intent to manufacture a Schedule I or Schedule II substance (Case No. GC11179472-00) and five (5) counts of sale/provide resale of a Schedule I or Schedule II substance (Case Nos. GC11179476-00, GC11179467-00, GC11179460-00, GC11179456-00, and GC11179454-00). (Id. ¶ 12.) On September 9, 2011, an arrest warrant out of the United States District Court for the District of Columbia was issued for Plaintiff’s arrest based on a supervised release violation in Plaintiff’s federal case, United States v. Posey, Case No. 1:03-CR-00563 (D. D.C.). (Id. ¶ 13.)

On November 14, 2011, the Arlington County charges (Case Nos. GC11002466-00 and GC11002467-00) were nolle prosequi. (Id. ¶ 14.) As a result, on November 21, 2011, Plaintiff was taken from the custody of Virginia authorities by the United States Marshals Service (“USMS”) on the September 9, 2011 arrest warrant. (Id. ¶ 15.) On November 22, 2011, the USPC issued a parole violation warrant for Plaintiff for violations of parole from a fifteen (15) year term of imprisonment imposed by the District of Columbia Superior Court, Case No. F1175688BC. (Id. ¶ 16.)

On March 12, 2012, Plaintiff was “borrowed” from federal custody by the State of Virginia, Fairfax County, pursuant to a writ of habeas corpus ad prosequendum. (Id. ¶ 17.) Thereafter, on October 12, 2012, Plaintiff was sentenced in Fairfax County, Virginia, to a total term of confinement of three (3) years. (Id. ¶ 18.) The state court further ordered that the 3-year term run concurrent with Plaintiff’s federal sentence. (Id. ¶ 19.) After the October 12, 2012 sentencing in state court, Plaintiff was returned to the primary custody of federal authorities on October 23, 2012. (Id. ¶ 20.)

On January 16, 2013, Plaintiff was sentenced by the United States District Court for the District of Columbia to a term of imprisonment of twenty (20) months for violations of his supervised release in Posey, Case No. 1:03-CR-00563. (Id. ¶ 21.) The BOP’s DSCC prepared a sentence computation for Plaintiff’s 20-month term of imprisonment on January 16, 2013, the date of imposition, which resulted in a projected release date of August 6, 2013, with jail credit in the amount of 327 days. (Id. ¶ 22.)

Subsequently, Plaintiff was released on the 20-month term, but remains in federal custody on the execution of the USPC parole violation warrant, with 2, 746 days remaining to serve on the previously imposed 15-year sentence. (Id. ¶ 23.) However, in August 2013, a review of Plaintiff’s sentence computation revealed that jail credit was not applied for ninety-nine (99) days he spent in custody. (Id. ¶ 24.) As a result, the BOP re-calculated Plaintiff’s 20-month term by applying the additional ninety-nine (99) days of credit, for a total of 426 days of jail credit. (Id. ¶ 25.) Even with the re-calculation, Plaintiff remained in federal custody after April 29, 2013, based on the USPC parole violation warrant. (Id. ¶ 26.)

On October 25, 2013, the USPC conducted a hearing in Plaintiff’s federal case. (Id. ¶ 27.) Based on the findings made during the hearing, on December 3, 2013, the USPC issued a Notice of Action ordering Plaintiff’s parole revoked with none of the time spent on parole credited. (Id. ¶ 28.) Plaintiff’s incarceration was also ordered continued to its expiration. (Id.) The BOP’s DSCC subsequently prepared a sentence computation on the USPC’s revocation of parole which resulted in a 2, 746-day term of confinement, commencing on August 6, 2013. (Id. ¶ 29.) Credits for the periods of July 19, 2010 through July 26, 2010, and April 29, 2013 through August 5, 2013 (result of the re-calculation of Plaintiff’s 20-month term), were applied to the 2, 746 days. (Id. ¶ 30.)

Based on these calculations, Plaintiff is currently serving the USPC parole revocation term of imprisonment of 2, 746 days. (Id. ¶ 4.) Plaintiff’s projected release date from his current term is ...


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