United States District Court, M.D. Pennsylvania
H. RAMBO United States District Judge
March 27, 2017, Petitioner Charles Bermudez, an inmate at the
Federal Correctional Institution at Allenwood, White Deer,
Pennsylvania (“FCI-Allenwood”), filed a petition
for a writ of habeas corpus pursuant to 28. U.S.C. §
2241 and a memorandum in support thereof. (Doc. No. 1.)
Petitioner also filed an emergency motion for preliminary
injunction on the same day. (Doc. No. 2.) Bermudez paid the
$5.00 filing fee on April 18, 2017. In liberally construing
Bermudez's petition, he essentially argues that he was
wrongfully expelled from the Bureau of Prisons'
(“BOP”) Residential Drug Abuse Program
(“RDAP”) and the expulsion violated his right to
early release under § 3621(e).
Court first reviews Bermudez's petition pursuant to Rule
4 of the Rules Governing Section 2254 Cases in the U.S.
District Courts, applicable to § 2241 petitions through
Rule 1(b), to determine whether the petition may be subject
to summary dismissal. See Patton v. Fenton, 491
F.Supp. 156, 158-59 (M.D. Pa. 1979). Rule 4 provides in
pertinent part: “If it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
been repeatedly held that “[a] petition may be
dismissed without review of an answer ‘when the
petition is frivolous, or obviously lacking in merit, or
where . . . the necessary facts can be determined from the
petition itself.' ” Thomas v. Hauser, No.
3:15-CV-0469, 2015 WL 1566233, at *1 (M.D. Pa. April 8, 2015)
(Nealon, J.) (citing Allen v. Perini, 424 F.2d 134,
141 (6th Cir.), cert. denied, 400 U.S. 906 (1970).
The Allen court stated that “the District
Court has a duty to screen out a habeas corpus petition which
should be dismissed for lack of merit on its face.”
Allen, 424 F.2d at 141.
outset, the Court notes Bermudez's failure to exhaust
administrative remedies. Bermudez, in fact, concedes this
fact, but appears to argue that he need not exhaust
administrative remedies in the present habeas proceeding.
(Doc. No. 1 at 2). Bermudez's contention is misplaced.
the absence of a statutory exhaustion requirement attached to
§ 2241, courts have consistently required a petitioner
to exhaust administrative remedies prior to filing a §
2241 petition. See Moscato v. Fed. Bureau of
Prisons, 98 F.3d 757, 760 (3d Cir. 1996) (holding
“that a prisoner's procedural default of his
administrative remedies bars judicial review of his habeas
petition unless he can show cause for the default and
prejudice attributable thereto”); Arias v. United
States Parole Comm'n., 648 F.2d 196, 199 (3d Cir.
1981) (concluding that, in the context of a habeas petition
filed under § 2241, “the district court should
have dismissed appellant's petition on exhaustion
grounds”). Exhaustion of administrative remedies is
required “for three reasons: (1) allowing the
appropriate agency to develop a factual record and apply its
expertise facilitates judicial review; (2) permitting
agencies to grant the relief requested conserves judicial
resources; and (3) providing agencies the opportunity to
correct their own errors fosters administrative
autonomy.” Moscato, 98 F.3d at 761-62 (citing
Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir.
order for a prisoner to exhaust his administrative remedies,
he must comply with 28 C.F.R. § 542.10 et seq.,
otherwise, the habeas petition should be dismissed.
Arias, 648 F.2d at 199 (requiring federal prisoner
to exhaust administrative remedies before bringing claim
under § 2241). An inmate first must informally present
his complaint to staff, and staff shall attempt to informally
resolve any issue before an inmate files a request for
administrative relief. 28 C.F.R. § 542.13(a). If
unsuccessful at informal resolution, the inmate may raise his
complaint with the warden of the institution where he is
confined. Id. at § 542.14(a). If dissatisfied
with the response, he may then appeal an adverse decision to
the Regional Office and the Central Office of the BOP.
Id. at §§ 542.15(a) and 542.18. No
administrative appeal is considered finally exhausted until a
decision is reached on the merits by the BOP's Central
Office. See Sharpe v. Costello, No. 08-1811, 2008 WL
2736782, at *3 (3d Cir. July 15, 2008).
exhaustion is not required if there is no opportunity to
obtain adequate redress; if the issue presented only pertains
to statutory construction; or if the prisoner makes an
affirmative showing of futility. Gambino v. Morris,
134 F.3d 156, 171 (3d Cir. 1998); Schandelmeier v.
Cunningham, 819 F.2d 52, 53 (3d Cir. 1986); Bradshaw
v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). Here,
Bermudez acknowledges that he has not yet exhausted his
administrative appeal; however, he argues that completing the
administrative appeal would be futile because he alleges that
the staff who terminated him from RDAP are the same people
that will hear his grievance. (Doc. No. 1 at 3.)
conclusory assertion that the administrative process is a
“frivolous formality” and futile, without
providing any more specificity, fails to make the affirmative
showing required of him. Because Bermudez has not yet
exhausted his administrative remedies with respect to the
claim presented in his petition, the Court will dismiss the
§ 2241 petition for failure to exhaust administrative
remedies. However, even if Bermudez was not required to
exhaust the administrative remedies before bringing this
action, his claim is nonetheless without merit.
Violent Crime Control and Law Enforcement Act of 1994
(VCCLEA) amended 18 U.S.C. § 3621 to require the BOP to
“make available appropriate substance abuse treatment
for each prisoner the Bureau determines has a treatable
condition of substance addiction or abuse.” 18 U.S.C.
§ 3621(b). The Act is applicable to persons convicted of
a “nonviolent offense” and allows the BOP to
reduce a prisoner's sentence by up to one-year as an
incentive for the successful completion of the treatment
program. See 18 U.S.C. § 3621(e)(2)(B); see
also 28 C.F.R. § 550.58. However, while eligibility
for early release under § 3621(e)(2)(B) is open to all
prisoners who meet the statutory requirements, the statute
expressly vests the BOP with broad discretion to grant or
deny sentence reductions to eligible prisoners. See
18 U.S.C. § 3621(e)(2)(B) (“the period a prisoner
convicted of a nonviolent offense remains in custody after
successfully completing a treatment program may be
reduced by the Bureau of Prisons”) (emphasis
Bermudez argues that he was wrongfully expelled from the
BOP's RDAP and the expulsion violated his right to early
release under § 3621(e), pursuant to §
3621(e)(2)(B), an inmate is only entitled to early release
upon the successful completion of the drug treatment program.
Because Bermudez was expelled prior to full completion of the
program, he is not entitled to early release. Additionally,
even if Bermudez was not expelled and successfully completed
the program, he is still not entitled to early release as
§ 3621 simply does not create an entitlement to early
release. See Orr v. Hawk, 156 F.3d 651, 654 (6th
Cir. 1998) (there is no protectable liberty interest in early
release under § 3621(e)); O'Bar v. Pinion,
953 F.2d 74, 84 (4th Cir. 1991) (a statute that creates only
a hope about a future discretionary decision by prison
administrators is too speculative to create a liberty
interest); Heard v. Quintana, 184 F.Supp.3d 515, 519
(E.D. KY. 2016) (removal from the RDAP does not deprive an
inmate of either procedural or substantive due process
because a prisoner has no liberty interest in discretionary
release from prison prior to the expiration of his or her
sentence. Further, § 3621 does not implicate a
constitutionally-protected liberty interest because it does
not mandate a sentence reduction).
given BOP's authority to manage inmate drug treatment
programs, including RDAP, “any substantive decision by
the BOP to admit a particular prisoner into RDAP, or to grant
or deny a sentence reduction for completion of the program,
is not reviewable by the district court, ” and
“[t]he BOP's substantive decisions to remove
particular inmates from the RDAP program are likewise not
subject to judicial review.” Reeb v. Thomas,
636 F.3d 1224, 1227 (9th Cir. 2011); Santiago-Lebron v.
Florida Parole Comm'n, 767 F.Supp.2d 1340, ...