United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
E. Schwab United States Chief Magistrate Judge
April 27, 2016, Petitioner Anthony Butler Comegys
(“Comegys”), an individual who was previously
incarcerated at the United States Penitentiary Lewisburg
Prison Camp in Lewisburg, Pennsylvania (“USP
Lewisburg”), filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. In his petition,
Comegys claims that he was wrongfully expelled from the
Bureau of Prison's (“Bureau” or
“BOP”) Residential Drug Abuse Program conducted
at that institution, thereby violating his right to early
release under 18 U.S.C. § 3621.
reasons set forth below, we recommend dismissing his petition
and closing the above-captioned case file.
September 13, 2011, Comegys was sentenced in the United
States District Court for the District of Delaware “to
a 120 month sentence, and eight (8) year supervised release
term, ” for “conspiracy to distribute 500 grams
or more of cocaine” and “distribution of 500
grams or more of cocaine.” Doc. 5-2 at 1,
¶ 5. Comegys was subsequently incarcerated at USP
Lewisburg. And, as stated above, the claims in Comegys's
petition relate to his expulsion from the Residential Drug
Abuse Program at that institution. See doc. 1.
Residential Drug Abuse Program, which is more commonly
referred to as the “RDAP, ” has three essential
components. See 28 C.F.R. § 550.53;
see also doc. 5-2 at 27. The first is a residential
unit-based component, comprising of “a course of
activities provided by drug abuse treatment specialists and
the Drug Abuse Program Coordinator in a treatment unit set
apart from the general prison population.” 28 C.F.R.
§ 550.53(a)(1); doc. 5-2 at 27. This component
of the program “must last at least six months.”
28 C.F.R. § 550.53(a)(1); doc. 5-2 at 27. If
time allows between completion of this first component and
transfer to a community-based program (i.e., the third
component of the program), then the inmates must participate
in follow-up services to the unit-based component. Doc.
5-2 at 27; see also 28 C.F.R. §
550.53(a)(2). These follow-up services, which constitute the
second component of the RDAP, help to support the inmates
while they transition back into general prison population.
See doc. 5-2 at 27; see also doc. 5 at 3.
Thus, inmates who have completed the unit-based
component-and, when appropriate, the follow-up services
component-are then transferred to a community-based program.
28 C.F.R. § 550.53(a)(3); see also doc. 5-2 at
27. Inmates “must successfully complete [the]
community-based drug abuse treatment in a community-based
program” in order to successfully complete the RDAP. 28
C.F.R. § 550.53(a)(3); doc. 5-2 at 27.
an inmate refuses or fails to complete all aspects of the
program, that prisoner fails the RDAP program and is
disqualified from receiving additional incentives under the
program.” Burt v. Lane, No. 1:16-CV-1180, 2017
WL 4681807, at *2 (M.D. Pa. Apr. 4, 2017) (citing 28 C.F.R.
§ 550.56(a) (Carlson, M.J.), report and
recommendation adopted, No. 1:16-CV-1180, 2017 WL
4647781 (M.D. Pa. Oct. 17, 2017) (Conner, C.J.). Some of
those “incentives include financial awards,
consideration for the maximum period of time at a community-
based treatment program, and local institution incentives,
such as preferred living quarters.” Burt, 2017
WL 4681807, at *2 (citing 28 C.F.R. § 550.54). And,
“as a further incentive to encourage inmates to seek
substance abuse treatment, Congress granted the BOP Director
discretion to reduce the sentence of an inmate convicted of a
non-violent offense who successfully completes the RDAP by a
period not to exceed 12 months.” Burt, 2017 WL
4681807, at *2 (citing 28 C.F.R. § 550.55). “There
are, however, no guarantees that any particular prisoner will
be enrolled in the RDAP program; will be permitted to
complete the program; or will ultimately receive this
sentence reduction.” Burt, 2017 WL 4681807, at
matter, Comegys's participation in the RDAP at USP
Lewisburg has been fairly-well documented. Thus, for purposes
of providing a complete and comprehensive Report and
Recommendation, we briefly recount that participation here.
On October 27, 2014, Comegys began the RDAP by entering,
presumably, the first phase of the program-the unit-based
component. See doc. 5-2 at 2, ¶ 12. The parties
do not seem to dispute the fact that Comegys successfully
completed this first phase of the program.
nine months later, on August 4, 2015, Comegys entered the
second phase of the program-the follow-up-services component.
Id. at 2, ¶ 13; see Id. at 90. But,
approximately three months after entering this second phase,
Comegys received his first formal warning (id. at 2,
¶ 14) for “engaging in aggressive communication
with other RDAP inmates, encouraging other RDAP participants
not to engage in pull-ups,  [and] spreading negative comments
about the RDAP” (id. at 92). This formal
warning, which appears to have been signed by Comegys,
identifies the interventions that were to be taken to address
his behavior and states that if he failed to complete these
interventions, as well as the RDAP treatment assignments that
were being given to him, then these failures would result in
his expulsion from the program. Id.
following day, however, Comegys continued to display
unacceptable behavior, as documented by the RDAP staff.
See Id. at 93. More specifically, the staff
commented that Comegys was “insinuat[ing] racially
based insults against an RDAP participant[.]”
Id. The staff also commented that this was
Comegys's “second incident in the past week[,
]” where he had “used derogatory racial
statements about other black RDAP inmates who [were] actively
engaged in treatment and active in the RDAP community.”
Id. As a result of this behavior, Comegys was
scheduled to be seen by the RDAP staff at the next Treatment
Team meeting. Id.
November 16, 2015, Comegys was seen by staff. See
Id. at 2, ¶ 16; see also Id. at 94. As
reflected by the staff member's notes, Comegys, during
that meeting, was “emotional” and gave the
impression that he was “deflecting
responsibility” for his interaction with the other
inmate and that he was taking a “victim stance.”
Id. As further reflected by the staff member's
notes, Comegys was made aware of these impressions that he
was giving to staff. Id.
on November 17, 2015, Comegys received his second formal
warning for continuing “to insinuate racially,
inappropriate innuendos towards another RDAP
participant.” Id. at 95; see also Id.
at 2, ¶ 17. This warning informed Comegys that the RDAP
Treatment Team had met to discuss his behavior and was
concerned about his progress in the program. Id. at
95. This formal warning, which appears to have been signed by
Comegys, again identifies the interventions that were to be
taken to address his behavior and states that if he failed to
complete these interventions, as well as the RDAP treatment
assignments that were being given to him, then this failure
would result in his expulsion from the program. Id.
November 20, 2015, however, it became apparent to the RDAP
staff during a community meeting that Comegys was
“continuing to spread negativity and continuing to
share statements and materials that [were] splitting his
peers. [In addition, he was] continuing to foster the idea
that he and his peers are not responsible for the crimes they
committed.” Id. at 99; see also Id.
at 2, ¶ 19. After the Chief Psychologist was consulted,
Comegys was ordered out of the meeting. Id. at 99.
It was also documented, at this time, ...