Floyd v. Zickefoose

• Decision Date: 28 February 2012
• Docket Number: Civil No. 11-3593 (JBS)
• Parties: DAVID L. FLOYD, Petitioner, v. DONNA ZICKEFOOSE, Respondent.
• Court: U.S. District Court — District of New Jersey

DAVID L. FLOYD, Petitioner, v. DONNA ZICKEFOOSE, Respondent.

Civil No. 11-3593 (JBS)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: February 28, 2012

NOT FOR PUBLICATION

OPINION

APPEARANCES:

DAVID L. FLOYD, Petitioner pro se

# 27522-038

FCI Fort Dix

Fort Dix, New Jersey 08640

JOHN ANDREW RUYMANN, AUSA

OFFICE OF THE U.S. ATTORNEY

Trenton, New Jersey 08608

Counsel for Respondent

SIMANDLE, Chief Judge

Petitioner, David L. Floyd ("Floyd"), confined at the FCI Fort Dix in Fort Dix, New Jersey, at the time he filed this action, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3), challenging his prison facility designation at FCI Fort Dix. The named respondent is the Warden at FCI Fort Dix, where Floyd was confined at the time he filed his habeas petition. On August 25, 2011, respondent filed a motion to dismiss the petition. (See Docket entry no. 12). Forthe reasons stated below, finds that the petition should be dismissed without prejudice for Petitioner's failure to exhaust his administrative remedies, or alternatively, for lack of subject matter jurisdiction.

I. BACKGROUND

A. Factual and Procedural Background

Floyd filed the instant habeas petition on or about June 23, 2011, challenging his prison designation at FCI Fort Dix, and seeking a transfer to a Federal Medical Center ("FMC"), namely, the FMC Devens. In his petition, Floyd alleges that he was sentenced to 70 months imprisonment for his federal court conviction on charges of possession/receiving child pornography. Floyd further alleges that he has an extensive mental health history that was outlined in his federal presentence investigation report. Based on his mental health history, the sentencing judge recommended that Floyd be committed to the Fort Devens medical treatment facility. (Petition at pg. 2). However, Floyd was designated to serve his sentence at the FCI Fort Dix. Floyd alleges that on August 25, 2010 and again on May 10, 2011, he was physically attacked by other inmates at FCI Fort Dix. For his safety, Floyd was placed in a Special Housing Unit ("SHU"). On May 26, 2011, Floyd was placed in the SHU at FCI Fort Dix indefinitely based on threats of another inmate attackon Petitioner. Floyd also was informed that a transfer to another prison facility was being contemplated. (Pet., pg. 3).

Floyd alleges that he receives Social Security Disability payments for his mental illness and that he was hospitalized on three separate occasions from 1980 through 2010, with diagnoses of post-traumatic syndrome disorder ("PTSD"), manic bi-polar disorder (rapid cycle), clinical depression and anxiety disorder. Petitioner also has been prescribed medications for treatment of his mental disorders. (Pet., pg. 4). In particular, Floyd relates that he had been hospitalized at the Arbour Fuller Hospital in Attleboro, Massachusetts for psychiatric care before he voluntarily self-surrendered to the U.S. Marshals to serve his federal sentence. (Pet., pg. 4). Floyd asserts that the decision of the Federal Bureau of Prisons ("BOP") not to transfer him to the FMC Devens violates his Eighth Amendment right against cruel and unusual punishment and his Fifth Amendment right to equal protection.¹ He also claims that 5 U.S.C. § 552a requires the BOP to correct its system of records to reflect that Petitioner is mentally ill and not suitable for housing in a general population federal prison facility. (Petition, pp. 4-6).

On August 25, 2011, Respondent responded to the habeaspetition by filing a motion to dismiss for failure to exhaust administrative remedies, or alternatively, for lack of subject matter jurisdiction. (Docket entry no. 12). Respondent provided the relevant record in this matter, which was appended to the Declarations of Kevin Bullock and Tara Moran. (Docket entry nos. 12-2 and 12-3, respectively). The record provided by the Respondent shows the following facts.

Floyd was sentenced on April 29, 2010, in the United States District Court for the District of Massachusetts, to a prison term of 70 months with a 15-year term of supervised release to follow, for Receipt of Child Pornography and Possession of Child Pornography in violation of 18 U.S.C. § 2252(A)(2). Petitioner's projected release date is December 4, 2014, assuming he receives all good conduct time ("GCT") available to him. (Moran Decl., Exhibit 1).

At sentencing, the sentencing judge recommended the FMC Devens for service of Petitioner's sentence. On July 13, 2010, the BOP's Designation and Sentence Computation Center ("DSCC") instead designated Floyd to the FCI Fort Dix. The designation noted that the judicial recommendation for service of sentence at FMC Devens was not followed based on population management issues. It was further noted that Floyd would be reviewed for the Residential Drug Abuse program ("RDAP") and the Sex Offender Treatment Program ("SOTP")if/when he became eligible. It wasfinally noted that the Office of Medical Designations and Transfers ("OMDT") had reviewed Floyd's medical records and cleared him for the DSCC to designate Floyd at a non-medical center. (Bullock Decl., ¶ 5 and Ex. 1 [Security/Designation Data]).

On or about August 22, 2011, Floyd was designated to FCI Allenwood in Allenwood, Pennsylvania. This re-designation was based upon an investigation conducted by the FCI Fort Dix Special Investigative Services ("SIS") Department, in which the SIS determined that Floyd required protective custody and could not return to the general prison population at FCI Fort Dix. The re-designation was not based on any mental health issues that could not be properly treated at FCI Fort Dix. (Bullock Decl., ¶ 6 and Ex. 2 [Inmate Profile]).

Respondent alleges that Floyd has failed to exhaust his administrative remedies concerning his request to be transferred to FMC Devens, or his allegations that the BOP is maintaining inaccurate medical records regarding Floyd's psychological condition. Respondent specifically shows that Floyd filed only a BP-9 administrative remedy with the Warden at FCI Fort Dix, on or about June 24, 2011, requesting a transfer to FMC Devens and alleging that the BOP has inaccurate or incomplete medical documentation for him. Floyd has failed to complete theremaining steps of the administrative remedy process. (Moran Decl., ¶¶ 4-5 and Ex. 2).

On July 8, 2011, the Warden at FCI Fort Dix filed a response to Floyd's BP-9 administrative remedy. In denying the relief requested, the Warden stated:

A review of this matter indicates you are serving a 70-month sentence for Receipt/Possession of Child Pornography. You were designated to FCI Fort Dix, NJ, on July 27, 2010. The Bureau of Prisons attempts to designate inmates within 500 miles of their release residence. According to your release residence of Franklin, Massachusetts, you are currently 221 miles from this location.

A review of your Judgment and Commitment indicates your sentencing judge recommended you be designated to Fort Devens. However, this is solely a recommendation, and factors such as institution population levels, inmate security and supervision needs, and available programs occasionally result in placement other than the judicially recommended facility. You are currently a Care Level 1 inmate which can be appropriately cared for at FCI Fort Dix. You have not indicated what information compiled by the BOP is incomplete or inaccurate, therefore this issue cannot be addressed. Accordingly, your request is denied.

If you are dissatisfied with this response, you may appeal to the Northeast Regional Director, Federal Bureau of Prisons. Your appeal must be received in the Northeast Regional Office, U.S. Customs House, 2nd and Chestnut Streets, Philadelphia, PA 19106, within 20 calendar days of the date of this response.

(Moran Decl., Ex. 2).

Respondent contends that the habeas petition should be dismissed for failure to exhaust administrative remedies. Respondent also argues that this Court lacks subject matter jurisdiction over Petitioner's designation and record maintenanceallegations because a judgment in his favor would not affect the fact or duration of Petitioner's confinement.

B. BOP Policy Regarding Designations and Transfers

Congress has delegated to the Attorney General, and the BOP, the authority to determine an inmate's appropriate classification and place of confinement. See e.g., 18 U.S.C. § 3621; 28 C.F.R. § 0.96; BOP Program Statement 5100.08, Inmate Security Designation and Custody Classification. Specifically, Section 3621 provides:

(b) Place of imprisonment.-The Bureau of Prisons shall designate the place of the prisoners's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence-

(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or

(B) recommending a type of penal or correctional facility as appropriate; and

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of Title 28.

In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another.

18 U.S.C. § 3621(b).

Generally, BOP institutions are classified into five security levels: minimum, low, medium, high, and administrative. These classifications are...