Dellarcirprete v. Gutierrez

• Decision Date: 05 March 2007
• Docket Number: Civil Action No. 1:05-CV-143.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Anthony DELLARCIRPRETE, Petitioner, v. Dominic GUTIERREZ, Respondent.

479 F.Supp.2d 600

Anthony DELLARCIRPRETE, Petitioner, v. Dominic GUTIERREZ, Respondent.

Civil Action No. 1:05-CV-143.

United States District Court, N.D. West Virginia.

March 5, 2007.

Michael Clayton Hanlon, Office of the United States Attorney, Baltimore, MD, Thomas M. DiBiagio, Beveridge and Diamond PC, Washington, DC, for Petitioner.

Gary W. Christopher, Public Defender or Community Defender Appointment, Office of the Federal Public Defender, Baltimore, MD, Peter S. Fayne, Retained, Rosenberg and Fayne LLP, Riverdale, MD, for Respondent.

ORDER AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

KEELEY, District Judge.

I. Introduction

On October 7, 2005, the petitioner, Anthony Dellarciprete ("Dellarciprete"), an inmate at the Federal Correctional Institution in Morgantown, West Virginia ("FCI-Morgantown"), filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, asserting that the Federal Bureau of Prisons ("BOP") "arbitrarily, capr[i]ciously, and wrongfully denied [him entry] into the 500 Hour RDAP Program" — a, program that, had he successfully completed it, may result in his early release. By standing order, the Court referred Dellarciprete's petition to Magistrate Judge James E. Seibert, who, on 'December 29, 2006 issued a Report and Recommendation ("R & R") recommending that Dellarciprete's petition be dismissed with prejudice. After conducting a de novo review of Dellarciprete's objections to the R & R, the Court agrees, AFFIRMS the magistrate judge's Report and Recommendation and DISMISSES WITH PREJUDICE Dellarciprete's 28 U.S.C. § 2241 petition.

II. Background

On April 13, 2004, in the Northern District of Ohio, Dellarciprete was convicted of mail fraud, wire fraud and conspiracy and sentenced to fifty months of imprisonment. The BOP designated Dellarciprete to FCI-Morgantown to serve his sentence until his projected release date of April 2, 2008.

While in prison, Dellarciprete applied for admittance to the BOP's Residential Drug Abuse Treatment Program ("RDAP") — a lengthy in-house drug treatment program that provides 500 hours of intensive drug rehabilitation. Beyond its rehabilitative potential, the RDAP also provides certain prisoners who successfully complete it the possibility of a one-year early release. Since its inception, the attractiveness of this early-release feature has resulted in a flood of applications for the program. In an effort to stem the tide of applicants seeking only early release from the program, the BOP, through federal regulations, has created screening protocols to evaluate a prisoner's RDAP eligibility. In this case, Dellarciprete argues alternatively that 1) those protocols are unreasonable, and that 2) the BOP unreasonably applied, those protocols to deny him access to the RDAP.

Dellarciprete interviewed for admittance into the RDAP on June 29, 2005. During his interview, Dellarciprete claimed that he had a history of long-term, heavy, polysubstance drug abuse. Those claims, however, were in contrast to the history of only occasional marijuana use and weekend drinking that Dellarciprete reported to the probation officer who prepared his presentence investigation report ("PSR"). Based on Dellarciprete's inconsistent claims, BOP officials denied his application to enter the RDAP.

On September 15, 2005, Dellarciprete challenged the BOP's RDAP eligibility determination by taking the first step in the available administrative remedy procedure. Subsequently, the respondent, Warden Dominic Gutierrez ("Gutierrez"), denied Dellarciprete's request for RDAP entry, but advised him that he was eligible for the BOP's 40-hour outpatient drug treatment program.¹ Dellarciprete did not enter the 40-hour program, but rather appealed Gutierrez's decision to the next administrative levels: first, to the Mid-Atlantic Regional RDAP Office, and, after being denied there, to the BOP's Central Office.

On October 7, 2005, Dellarciprete petitioned this court for a writ of habeas corpus. Citing his PSR, BOP guidelines and statements contained in the forms denying him administrative remedies, Dellarciprete claimed that he was "arbitrarily, capr[i]ciously, and wrongfully" denied entry into the RDAP in violation of the statutes governing the BOP's administration of the RDAP as well as the Due Process and Equal Protection clauses of the Fifth Amendment of the United States Constitution. After several false starts and appeals, due in part to his failure to sign the proper forms, Dellarciprete filed a Notice of Exhaustion of Administrative Remedies on May 9, 2006 while his habeas petition was already before the Court.

Dellarciprete's petition was referred to Magistrate Judge Seibert pursuant to 28 U.S.C. § 636(b)(1). After an initial screening, Magistrate Judge Seibert ordered Gutierrez to respond to Dellarciprete's petition and to show cause as to why a writ of habeas corpus should not be issued. Gutierrez responded on March 3, 2006, followed by Dellarciprete's Motion for Summary Judgment on April 27, 2006, and Gutierrez's further response on May 8, 2006. Magistrate Judge Seibert issued his R & R on December 29, 2006, finding that the BOP had statutory discretion to deny Dellarciprete entry into the RDAP. On January 11, 2007, Dellarciprete filed his objections to the magistrate judge's R & R and the Court now considers his objections and any remaining issues.

III. Magistrate Judge's Report and Recommendation

Reviewing first Dellarciprete's exhaustion of administrative remedies, Magistrate Judge Seibert found that, though Dellarciprete had not exhausted his remedies prior to filing his habeas petition, he did exhaust them sometime during the pendency of his petition. Therefore, for the sake of judicial efficiency, the magistrate judge concluded that the petition should proceed.

Magistrate Judge Seibert next conducted a detailed review of RDAP law and policy. He found that, pursuant to 18 U.S.C. § 3621, the BOP has authority to create drug treatment programs such as the RDAP, and has significant discretion in implementing such programs. Specifically, the magistrate judge found that the BOP's discretion to determine RDAP eligibility is subject to judicial review only to determine (1) whether a prisoner presents a cognizable constitutional claim, and (2) whether the BOP's interpretation of the authorizing statutes is reasonable.

Thereafter, Magistrate Judge Seibert addressed Dellarciprete's Due Process and Equal Protection Clause claims. He found several mandatory authorities directly on point and contrary to Dellarciprete's position, and, accordingly, recommended that Dellarciprete's constitutional claims be dismissed.

In reviewing the BOP's implementation of the governing statutes, Magistrate Judge Seibert focused on sections of the Code of Federal Regulations and BOP Program Statements that implement 18 U.S.C. § 3621 et seq. and condition RDAP eligibility on the prisoner's ability to verifiably document his drug abuse history. The magistrate judge found that both the BOP's verification requirements as well as its substantive reliance on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSMIV") were reasonable. Further, in applying those reasonable procedures to Dellarciprete's inconsistently documented drug history, the magistrate judge found that the BOP did not violate applicable law or Dellarciprete's rights in denying his application for entry into the RDAP. Finally, Magistrate Judge Seibert noted Dellarciprete's failure to pursue drug treatment through the 40-hour outpatient program, reasoning that if Dellarciprete's intent was to seek help for his drug abuse and not to merely avail himself of the possibility of early release, he would have enrolled in whatever programs were available to him.

IV. Dellarciprete's Objections to the Magistrate Judge's Report and Recommendation

Dellarciprete objects to Magistrate Judge Seibert's review of the BOP's statutory interpretation by reiterating his claim that the BOP arbitrarily and capriciously disregarded supporting documentation that established his eligibility for, the RDAP. Relying heavily on a California District Court case, Dellarciprete contends that conditioning RDAP eligibility on the verification of drug abuse history is, in and of itself, an abuse of agency discretion under the applicable statute and, moreover, that the BOP abused its discretion in applying the verification requirement to the facts of his case. Additionally, Dellarciprete claims that the BOP has delayed his entry into other drug treatment programs on some unspecified grounds of retaliation.

V. Standard of Review

The Court will review de novo any portions of the magistrate judge's Report and Recommendation to which a specific objection is made, Camby v. Davis, 718 F.2d 198, 199 (4th Cir.1983), and the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the prisoner does not object. Id.

Here, Dellarciprete did not object the portions of the magistrate judge's R & R regarding the exhaustion of administrative remedies, and recommending the dismissal of his constitutional claims. Accordingly, the Court ADOPTS Magistrate Judge Seibert's recommendations with regard to those issues, FINDS that Dellarciprete exhausted his administrative remedies and DISMISSES WITH PREJUDICE Dellarciprete's Due Process and Equal Protection. Clause claims.

VI. Analysis

The focus of Dellarciprete's petition, and the only issue on review before this Court, is whether the BOP's refusal to allow Dellarciprete to enter the RDAP constituted an unreasonable interpretation and implementation of the statute authorizing the RDAP program.

Guttierez and the BOP contend that Dellarciprete was properly denied entry into RDAP because of inconsistencies between his RDAP eligibility interview (in which he claimed an extensive drug abuse history) and statements made in his PSR (in which he reported a history of...