Colton v. Ashcroft

• Decision Date: 15 January 2004
• Docket Number: No. CIV.A. 03-554-JBC.,CIV.A. 03-554-JBC.
• Parties: Daniel COLTON, Plaintiff, v. John ASHCROFT, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

Page 681

299 F.Supp.2d 681

Daniel COLTON, Plaintiff, v. John ASHCROFT, et al., Defendants.

No. CIV.A. 03-554-JBC.

United States District Court, E.D. Kentucky, Lexington Division.

January 15, 2004.

COPYRIGHT MATERIAL OMITTED

Brian W. Shaughnessy, Washington, DC, Milton Coburn Toby, Perch & Toby, Lexington, KY, for Plaintiff.

Cheryl D. Morgan, U.S. Attorney's Office, EDKY, Lexington, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

COFFMAN, District Judge.

The plaintiff, a federal prisoner, seeks injunctive relief against a regulation which would delay his release into a halfway house until only ten percent of his sentence remains. He claims that the regulation violates his rights under the Fifth Amendment Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and that it violates the Administrative Procedure Act. Deeming futile the exhaustion of administrative remedies and finding that the plaintiff has a strong likelihood of success on the merits and otherwise meets the prerequisites for the relief which he seeks, the court will grant the plaintiff's motion for a preliminary injunction and a temporary restraining order.

BACKGROUND: THE RULE CHANGE

Pursuant to 18 U.S.C. § 3621(b), the Bureau of Prisons ("BOP") has authority to designate the place of imprisonment for federal inmates. Since the enactment of the Sentencing Guidelines in 1987, the BOP has considered Community Corrections Centers¹ [hereinafter "CCCs" or "halfway houses"] to be penal or correctional facilities and has, therefore, determined that the "imprisonment" portion of a sentence may be satisfied by service in a CCC.

BOP Program Statement 7310.04 (issued 10/19/93) says the BOP has authority "to place sentenced prisoners in community corrections centers, since such centers met 18 U.S.C. § 3621(b)'s definition of a `penal or correctional facility.'" BOP Program Statement 7310.04 (issued 12/16/98) says the BOP "is not restricted ... in designating a CCC for an inmate." More specifically, PS 7310.04 regarding Community Corrections Center Utilization and Transfer procedure ¶ 5 (12/16/98) sets forth that "the Bureau is not restricted by § 3624(c) in designating a CCC or an inmate and may place an inmate in a CCC for more than the `last ten percentum of the term,' or more than six months, if appropriate." Pearson v. United States, 265 F.Supp.2d 973 (E.D.Wis.2003) (emphasis added).

Consequently, for many years the BOP routinely honored judicial recommendations to place offenders in CCCs for the imprisonment portion of their sentences. United States v. Serpa, 251 F.Supp.2d 988, 989 (D.Mass.2003). "These practices were entirely routine, and were all but taken for granted by all participants: the BOP, the Probation Office, the U.S. Attorney's Office, the defense bar, and the judiciary." Id. On December 13, 2002, the Attorney General's Office of Legal Counsel ("OLC") issued a memorandum opinion which concluded that the BOP's longstanding CCC placement practice violated the law. The OLC's memo said that the statute, 18 U.S.C. § 3621(b), which for 15 years had been interpreted as giving the BOP discretion to place inmates in CCCs, actually forbade that exercise of discretion. The OLC memo, relying on 18 U.S.C. § 3624(c), stated that an inmate may not serve more than six months, or the last ten percent of his criminal sentence, whichever is less, in pre-release programming in a halfway house.

18 U.S.C. § 3624(c) states:

(C) Pre-release custody. The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community.

Based upon the OLC opinion, on December 20, 2002, the BOP Director sent a memorandum to federal judges informing them that the BOP was implementing "a significant procedure change regarding inmate designations to community correction centers," and that the BOP would no longer honor some judicial recommendations to place inmates in CCCs or use CCCs as a substitute for imprisonment. Serpa, 251 F.Supp.2d at 988. On the same date, the Department of justice and the BOP allegedly enacted a new policy which prohibits CCC transfers before a prisoner has remaining only 10 percent of his term of imprisonment.

"The BOP's change in policy regarding CCC designation has resulted in a stream of lawsuits in federal district courts throughout the nation," and "courts have been almost evenly divided in granting and denying relief." Estes v. BOP, 273 F.Supp.2d 1301, 1305 (S.D.Ala.2003). The "majority of cases have addressed challenges to the BOP policy in the context of motions for preliminary injunctive relief." Id., n. (collecting cases). Two of those cases arose within the Sixth Circuit: United States v. James, 244 F.Supp.2d 817 (E.D.Mich.2003) (§ 2255, TRO injunctive relief denied, no APA claim), and United States v. Andrews, 240 F.Supp.2d 636 (E.D.Mich.2003) (§ 2255, relief denied, no APA claim). The petitioners in both James and Andrews were in CCCs and objected to being returned to prison under the BOP's new rule.

PLAINTIFF'S CIRCUMSTANCES

On February 12, 1999, the plaintiff, Daniel Colton, was sentenced by the United States District Court for the District of Maryland to serve 38 months. He reported for service on July 23, 2001. He is presently incarcerated at FMC-Lexington. At first he understood that he would be transferred to a CCC for the last six months of his sentence. On September 23 2002, however, BOP officials allegedly told him that his CCC transfer would occur 150 days from his May 17, 2004 release date, or approximately December 20, 2003. Then on or about December 23, 2002, he learned that he would spend only 3.8 months in a halfway house, pursuant to the new OLC opinion and the BOP's resulting policy/rule change.² Under the new rule, Mr. Colton's halfway-house placement would not begin until approximately February 6, 2004. Allegedly, his BOP Case Manager told him that, but for the new regulation and OLC memo, he would have been transferred in mid-December 2003.³ Consequently, his time in a CCC was reduced from approximately five months to approximately 3 months and 24 days. The plaintiff is now eligible to spend only the final 97 days of his sentence in a halfway house/CCC rather than the 150 days he would have been afforded under the BOP's pre-December 20, 2002 policy.

The plaintiff asserts that his Due Process and Equal Protection rights have been violated by this rule change and that the manner in which it was enacted violates the Administrative Procedure Act.

RELIEF SOUGHT

The plaintiff asks the court to enter a preliminary injunction and a temporary restraining order requiring the BOP to transfer him to a halfway house without regard to the new regulation.

ANALYSIS

Introduction

The defendants assert that res judicata applies to bar the plaintiff's claims, relying upon an action which the plaintiff previously filed in the United States District Court in the District of Columbia but which was dismissed for failure to exhaust administrative remedies. Alternatively, the defendants argue failure to exhaust such remedies in this action, as well as disputing the plaintiff's substantive claims.

Res Judicata

The doctrine of res judicata applies to repetitive suits involving the same cause of action. See C.I.R. v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948). A final judgment on the merits precludes the same parties from relitigating issues that were or could have been raised in that action. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398-99, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). The purpose of this doctrine is well-known:

The purpose of res judicata is to promote the finality of judgments and thereby increase certainty, discourage multiple litigation, and conserve judicial resources. A final judgment on a claim is res judicata and bars relitigation between the same parties or their privies on the same claim. It bars relitigation on every issue actually litigated or which could have been raised with respect to that claim. To constitute a bar, there must be an identity ... of the facts creating the right of action and of the evidence necessary to sustain each action.

Westwood Chemical Co., Inc., v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981) (citations omitted).

Under res judicata, a final judgment on the merits of an action bars relitigation between the same parties or their privies on issues that were or could have been raised in that action. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 467 n. 6, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Vinson v. Campbell County Fiscal Court, 820 F.2d 194, 197 (6th Cir. 1987).

Certain principles govern the application of res judicata:

Res judicata, or claim preclusion, bars a subsequent action between the same parties or their privies based upon the same claims or causes of action that were or could have been raised in a prior action. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir.1995). Res judicata applies when there is "(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action." Kane, 71 F.3d at 560.

Sanders v. County of Wayne, 2003 WL 23095673 at *1 (6th Cir.2003).

Certain elements are required for application of the doctrine:

Res judicata is established with four elements: 1) a final decision was rendered on the merits in the first action by a court of competent...