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Comegys v. Ebbert

United States District Court, M.D. Pennsylvania

December 19, 2017

ANTHONY BUTLER COMEGYS, Petitioner,
v.
DAVID EBBERT, Respondent.

          REPORT AND RECOMMENDATION

          Susan E. Schwab United States Chief Magistrate Judge

         I. Introduction.

         On 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.[1]

         For the reasons set forth below, we recommend dismissing his petition and closing the above-captioned case file.

         II. Background.

         On 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.

         The Residential Drug Abuse Program, which is more commonly referred to as the “RDAP, ” has three essential components.[2] 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.

         “[I]f 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 *2.

         In this 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.

         Over 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, [3] [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.

         On the 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.

         On 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.

         Then, 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.

         On 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, ...


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