Fox v. Lappin
| Citation | 409 F.Supp.2d 79 |
| Decision Date | 17 January 2006 |
| Docket Number | No. CIV.A. 05-40106-WGY.,CIV.A. 05-40106-WGY. |
| Parties | Charles FOX, Petitioner, v. Harley LAPPIN, Director of the Federal Bureau of Prisons, and David L. Winn, Warden, Respondents. |
| Court | U.S. District Court — District of Massachusetts |
Gregg D. Shapiro, Office of the United States Attorney, Boston, for Warden David L. Winn, Harley Lappin, Respondents.
Petitioner Charles Fox ("Fox"), is challenging the Bureau of Prisons' ("Bureau") classification of him as a sex offender based on an over-24-year-old state conviction. See Pet. for a Declaratory J. under 28 U.S.C. §§ 1331 and 2201 and for a Writ of Mandamus and Prelim. Inj. ("Fox Pet.") [Doc. No. 1]. Fox argues that, because of this improper classification, he was denied transfer to a halfway house and, upon his release, will be subject to notification and registration requirements pursuant to Title 18, Section 4042(c) of the U.S.Code ("Section 4042(c)").1 Id. at 3, 4.
Fox initially sought a declaratory judgement, preliminary injunction, and writ of mandamus for his claims. In a recent opinion, this Court denied respondents' motion to dismiss, ruling that the notification claim was properly before the Court and construing the denial of transfer claim as a petition for habeas relief. Mem. and Order of Nov. 18, 2005 [Doc. No. 19] at 11. The Court also denied the request for a writ of mandamus and reserved its judgement as to the issuance of a preliminary injunction. Id. Fox has exhausted all of his administrative remedies. Resp'ts' Status Report [Doc. No. 17] at 1.
A. Factual Background
Fox is currently a prisoner at the Federal Medical Center in Devens, Massachusetts ("FMC Devens") serving a 37-month prison term for being a felon in possession of a firearm in violation of Title 18, Section 922(g)(1) of the U.S. Code. See Decl. of Diana Jacobs Lee, Assistant Regional Counsel, Northeast Regional Office of the Federal Bureau of Prisons ("Lee Decl.") [Doc. No. 7.], Ex. A ("Judgment of April 23, 2003"). His projected release date is February 1, 2006. Lee Decl., Ex. B ("Inmate Data").
At some point prior to or during his term of confinement, the Bureau applied to Fox a Public Safety Factor ("Safety Factor") of "Sex Offender" based on a 1981 West Virginia conviction for second degree sexual assault. See Resp'ts' Resp. to Pet'r's Pet. for a Declaratory J. and For a Writ of Mandamus and Prelim. Inj. ("Resp'ts' Resp.") [Doc. No. 6] at 3-4; Lee Decl., Ex. D ("Security/Designation Data Form"). According to his Pre-sentence Report, in 1981, Fox was sentenced to a term of 5-10 years in the Greenbrier County Circuit Court in Lewisburg, West Virginia for sexual assault in the second degree. Lee Decl. ¶ 5. He began serving that sentence on July 25, 1984, and was released from custody on July 25, 1989. Id. The Bureau indicated that it had no information on the prior conviction other than that Fox's original charge was "unlawfully, feloniously, and forcibly engaging in sexual intercourse." Security/Designation Data Form.
An inmate's placement at a particular prison is determined by assessing the security (minimum, low, medium, high)2 and program needs (i.e., substance abuse, mental health, vocational/educational training) of that inmate, as well as any other administrative factors (i.e., overcrowding, judicial recommendations, separation needs). Program Statement 5100.07, ch. 1, at 1. Safety Factors are used by the Bureau to determine an inmate's security designation, which then helps determine his placement at a particular prison. Id. ch. 1, at 2 & ch. 7, at 1. Two of the six "elements" that require the application of the "Sex Offender" Safety Factor to an inmate are: engaging in sexual contact with another person without permission (forcible rape, sexual assault, or sexual battery); and any offense referenced in the Sex Offender Notification and Registration Program Statement. Id. ch. 7, at 2.
Fox's judgement order in this case, in addition to recommending placement in a substance abuse treatment, also contained a judicial recommendation that "Defendant be incarcerated as close to his home as possible in a camp-type, minimum security facility if deemed appropriate by the Bureau of Prison." Lee Decl., Ex. A. (J. in United States v. Fox, No. 5:02-00255-01 (Apr. 23, 2003)). The Bureau designated him to a Low Security prison instead — one can conclude, due to his "Sex Offender" Safety Factor. See Security/Designation Form.
FMC Devens assigns all inmates with a Safety Factor of "Sex Offender" and a "low" or "medium" security designation3 to participate in the Sex Offender Management Program ("Sex Offender Program"). Sex Offender Management Program Inmate Handbook ("Handbook") at 1. This program was established on March 1, 2004 and its primary goal is to "help sexual offenders manage their behavior in order to reduce sexual re-offending." Id.; Decl. of Cheryl Renard — Coordinator of the Sex Offender Program ("Renard Decl.") [Doc. No. 14], ¶ 2. There are currently 440 inmates enrolled in the program.4 Renard Decl. ¶ 2. A psychological evaluation and risk assessment is completed for all participants. Id.; Handbook at 2. The program staff then use the evaluation results to make management and treatment recommendations for each participant.5 Renard Decl. ¶ 2. The Program's staff and each participant's Unit Team "collaborate to develop a sound release plan for the program participant that includes appropriate postrelease housing, possible placement in Community Corrections Centers (CCC), as well as recommendations for employment, community-based treatment and community supervision." Handbook at 3. Some aspects of the program are voluntary — psychological testing, psycho-education classes, non-residential therapy. Id. at 4. Active participation, however, is considered by the Unit Team in recommending Community Corrections Center ("Community Center") placement for the inmate; "poor cooperation or failure to participate may curtail [] placement." Id.
On May 19, 2005, Fox's Unit Team recommended that he be "denied future consideration for [Community Center] placement" and remain at FMC Devens until his Good Conduct Time Release date of February 1, 2006. Lee Decl., Ex. G. ( ) ("Winn Mem."). The memo cited "Poor Institutional Adjustment" as the reason for the recommendation and discussed Fox's failure to participate in the Sex Offender Program, noting that Fox has "displayed poor cooperation by refusing to be interviewed or complete any testing with [program] [s]taff."6 Id. Shortly after that, Fox filed a request for administrative relief as to this decision. See Lee Decl., Ex. H. On June 13, 2005, Fox filed a second request for administrative relief asking that his "Sex Offender" classification be changed. See Lee Decl., Ex. K. On June 23, 2005, Fox filed a third request asking that the finding of "Poor Institutional Adjustment" be removed from his record. See Lee Decl., Ex. O. All three requests were denied and subsequently rejected on appeal. See Lee Decl., Ex. I, Ex. L, Ex. N & Ex. P; Resp'ts' Status Report at 1. On June 23, 2005, shortly after Fox began the process of administrative review, Fox filed this petition. See Fox Pet.
Section 4042(c) requires notice of an inmate's release to be provided to state and local authorities where that person was convicted of any of the following offenses: A) kidnapping involving a minor victim, 18 U.S.C. § 1201; B) sexual abuse in a federal prison or special maritime or territorial jurisdiction of the United States, 18 U.S.C. §§ 2241 et seq.; C) sexual exploitation and other abuse of minors involving interstate/foreign commerce or transport, 18 U.S.C. §§ 2251 et seq.; D) transportation of an individual for illegal sexual activity in interstate/foreign commerce or within territories of the United States, 18 U.S.C. §§ 2421 et seq. and E) "any other offense designated by the Attorney General as a sexual offense for purposes of this subsection," 18 U.S.C. § 4042(c) (emphasis added).
The Attorney General delegated that authority to the Director of the Bureau of Prisons. 28 C.F.R. § 571.71. The Director then listed those designated offenses as including "[a]ny offense under the law of any jurisdiction that involved: 1) Engaging in sexual contact with another person without obtaining permission to do so (forcible rape, sexual assault or sexual battery) ...."7 28 C.F.R. § 571.72. The Bureau's Program Statement implementing this provision, entitled "Sex Offender Notification and Registration", includes this list. Federal Bureau of Prisons, Program Statement 5141.02, Sex Offender Notification and Registration at 4-6 (Dec. 14, 1998).
In addition to a notification requirement, the statute requires the designated sex offender to register in the state in which he will reside. The statute provides:
Notice provided under paragraph (1) shall include ... the place where the person will reside, and the information that the person shall be subject to a registration requirement as a sex offender ....
The Director of the [Bureau] shall inform a person described in paragraph (4) who is released from prison that the person shall be subject to a registration requirement as a sex offender in any State in which the person resides, is employed, carries on a vocation, or is a student ....
18 U.S.C. 4042(c)(2)-(3) (emphasis added).
It is undisputed that Congress granted the Attorney General the authority to promulgate regulations designating sex offenses for purposes of the federal sex offender statute. See 18 U.S.C. § 4042. "When there is no challenge to...
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