Johnson v. Zickefoose, Civil Action No. 12-2544 (RMB)

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Parties: LARRY DALE JOHNSON, Petitioner, v. DONNA ZICKEFOOSE, Respondent.
• Docket Number: Civil Action No. 12-2544 (RMB)
• Decision Date: 08 January 2014

LARRY DALE JOHNSON, Petitioner,
v.
DONNA ZICKEFOOSE, Respondent.

Civil Action No. 12-2544 (RMB)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: January 8, 2014

NOT FOR PUBLICATION

OPINION

This matter comes before the Court upon Petitioner's multiple filings docketed as Docket Entries Nos. 14 to 17, and 19 to 31.

I. BACKGROUND

In light of the convoluted procedural history of this matter, a brief summary of the same appears warranted.

On April 30, 2012, Petitioner submitted a lengthy document styled as a § 2241 petition. See Docket Entry No. 1.¹

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Petitioner followed his Petition by a memorandum and motion "to Compell the Clerk to Perform Clerical duties to secure the Just, Speedy and Inexpensive Determination of [his] Petition."² See Docket Entries Nos. 2 and 3 (capitalization and lack thereof in original). The Court, therefore, screened the Petition and denied Petitioner's motion. See Docket Entries Nos. 4 and 5.

Screening the Petition, the Court noted that Petitioner raised a multitude of civil rights claims that could be asserted under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), but were not cognizable in habeas review. See Johnson v. Zickefoose, 2012 U.S. Dist. LEXIS 166148, at *22-23 (D.N.J. Nov. 20, 2012). These claims, therefore, were dismissed.³

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In addition, the Court distilled three distinct lines of habeas challenges and directed Respondent to answer those. See id. at *25 (listing the following Petitioner's habeas lines of challenges: "[(a)] the BOP decision to deny him five months jail credit, [(b)] the failure of the BOP to assess his pre-release [half-way house] placement as mandated under the Second Chance Act, and [(c)] the BOP's disciplinary sanction resulting in the loss of good conduct time").⁴

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Upon that development, Petitioner informed the Clerk of his transfer to the Devens medical facility, in Massachussetts, and filed a motion for default judgment, asserting that Respondent failed to answer his Petition, even though Respondent's time to answer was still running. See Docket Entries Nos. 11 and 12. Respondent, meanwhile, timely filed the answer asserting Petitioner's failure to exhaust his administrative remedies and, in addition, stating that each line of Petitioner's claims was meritless and did not warrant habeas relief. See Docket Entry No. 13. In support of its position, Respondent filed an extensive administrative record and accompanying affidavits. See Docket Entries Nos. 13-1 to 13-5. Respondent's service of the answer upon Petitioner prompted his filing of the seventeen submissions at bar. See Docket Entries Nos. 14 to 17, and 19 to 31. Specifically:

Petitioner's submission in Docket Entry No. 14 stated that he was transferred to the Solano Jail in California, even though the BOP records kept showing his continuous housing in Massachusetts. His submission in Docket Entry No. 15: (a) asserted that he could not exhaust his administrative remedies during the pendency of this matter due to his transfer from the FCI Forth Dix to Massachusetts, but did not explain his failure to exhaust prior to filing his Petition; (b) verified his housing

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in Massachusetts; (c) conceded that his jail-time claims were a request to "correct" his sentence on the basis of Setser v. United States, 132 S. Ct. 1463 (2012); (d) conflated, anew, his loss-of-credit habeas claim with his Bivens medical claims, and (e) sought reinstatement of his lost good-conduct-time credit and grant of jail-time credit on the basis that he was confined to a wheelchair. His submission in Docket Entry No. 16 asserted "transfer" from the in Massachusetts facility to the very same facility, while the submission in Docket Entry No. 17 asserted the Massachusetts officials' election not to transfer him to a half-way house in accord with the preliminary determination reached in Fort Dix. His submission in Docket Entry No. 19 requested summary judgment as to his Second Chance Act claims and sought his placement in a half-way house either in Oregon, Washington, or California. His submission in Docket Entry No. 20 raised a new Bivens challenge (namely, that, in Massachusetts, he was assigned to work tasks "beyond [his] physical ability"). His submissions in Docket Entries Nos. 21 and 22 restated his Second Chance Act claims anew and asserted that he had not had his final Second Chance Act assessment in Massachusetts. His submission in Docket Entry No. 23 re-asserted his "transfer" from the Massachusetts facility to the very same facility and, in addition, raised Bivens access-to-the-courts claim. His submission in Docket Entry No. 24 raised new Bivens conditions of

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confinement claims: these claims were against the Massachusetts officials and alleging problems with sewage and errors in Petitioner's medical record and treatment. His submission in Docket Entry No. 25 asserted that his final Second Chance Act evaluation was held by the Massachusetts officials and yielded a decision to place him in a half-way house for 60 to 90 days (in light of his refusal to perform assigned work tasks). His submission in Docket Entry No. 26 was yet another application for a summary judgment, this time as to all three lines of his habeas claims. His submission in Docket Entry No. 27 invited this Court to conclude that his housing in Massachusetts was improper being costlier than what his housing would have been at a half-way house. His submission in Docket Entry No. 28 requested a "strike" of the affidavits attached to Respondent's answer, asserting that these affidavits were "hearsay." His submission in Docket Entry No. 29 sought an order directing enforcement of the preliminary Second Chance Act determination reached at Fort Dix, since it yielded a result more favorable to Petitioner (150 to 180 days) than the final determination (60 to 90 days) reached in Massachusetts. Yet, his submission in Docket Entry No. 30 asserted that the preliminary Second Chance Act determination at Fort Dix violated his rights. Finally, his submission in Docket Entry No. 31 requested transfer of the instant matter to California and, in addition, alleged that he was wrongly denied

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access to a Residential Drug Abuse Treatment Program ("RDAP," that might have qualified him for reduction of sentence) since he believed he developed an addiction to pain-reducing medications during the period of his confinement.

For the reasons detailed below, Petitioner's three line of habeas challenges asserted ab initio in his Petition will be addressed on the merits, with two lines of challenges being severed into two individual actions under Habeas Rule (e). Analogously, Petitioner's two habeas claims raised post-pleading will be severed into new actions, as detailed infra.

II. SECOND CHANCE ACT CHALLENGES

As detailed supra, Petitioner's Second Chance Act challenges present a conflation of three distinct and different habeas claims.

At the time of filing his Petition, Petitioner asserted that the Fort Dix officials failed to conduct his preliminary evaluation for transfer to a half-way house. Shortly after his commencement of this matter, such preliminary evaluation was conducted by the Fort Dix officials and yielded a recommendation that Petitioner would be placed in a half-way house for the period of 150 to 180 days.

He later expressed his displeasure with said determination, asserting that, in his opinion, it violated his rights, even though he simultaneously sought this Court's enforcement of that

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determination.

Also during the pendency of this matter, Petitioner was transferred to a medical facility in Massachusetts, where his final Second Chance evaluation took place. That evaluation yielded a determination that Petitioner should be placed in a half-way house for the period of 60 to 90 days in light of his refusal to perform the assigned work tasks. At this juncture, Petitioner is challenging that Massachusetts determination.

As Respondent correctly pointed out, Petitioner's claims that the Fort Dix officials failed to conduct his preliminary evaluation has long become moot, and should be dismissed as such.

Petitioner's displeasure with the preliminary recommendation made by the Fort Dix officials (as to Petitioner's 150-to-180-day placement in a half-way house) was improperly raised in his post-pleading "Notice of Retaliatory Denial," docketed as Docket Entry No. 30.⁵ See Bell v. City of Phila., 275 F. App'x 157, 160 (3d

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Cir. 2008) (a litigant cannot plead claims in any non-pleading document, be it moving papers, an opposition to a motion or the litigant's traverse); Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (same); Veggian v. Camden Bd. of Educ., 600 F. Supp. 2d 615, 628 (D.N.J. 2009) (same).

To the extent an actual claim could be read into his displeasure with the preliminary recommendation made at Fort Dix, that claim too became moot when the Massachusetts' officials elected to discard that recommendation and held Petitioner's final Second Chance Act evaluation, upon which they entered a superseding determination, i.e., that Petitioner's half-way-house period should be reduced to 60-to-90 days, in light of his refusal to perform the assigned work tasks.

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