Loeffler v. Menifee

• Decision Date: 07 June 2004
• Docket Number: No. 04 Civ. 3610(PKC).,04 Civ. 3610(PKC).
• Citation: 326 F.Supp.2d 454
• Parties: Menachem LOEFFLER, Petitioner, v. Frederick MENIFEE, Warden, Federal Correctional Institution, Otisville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

326 F.Supp.2d 454

Menachem LOEFFLER, Petitioner, v. Frederick MENIFEE, Warden, Federal Correctional Institution, Otisville, New York, Respondent.

No. 04 Civ. 3610(PKC).

United States District Court, S.D. New York.

June 7, 2004.

Nathaniel Z. Marmur, Paul Schechtman, Stillman and Friedman, New York City, for Petitioner.

John Peter Cronan, U.S. Attorney's, SDNY (86 Chambers St.), New York City, for Respondent.

MEMORANDUM AND ORDER

CASTEL, District Judge.

Menachem Loeffler petitions this Court, pursuant to 28 U.S.C. § 2241, for a writ of habeas corpus. He contends that the Bureau of Prisons ("BOP") acted contrary to law in failing to place him in a Community Confinement Center ("CCC") six months prior to the expiration of his release date, and urges the Court to grant a preliminary injunction directing the BOP to promptly and in good faith consider Loeffler for placement in a CCC.

In the last seven months, BOP interpretations of the statutory authority for placing prisoners in a CCC have been discussed extensively by the courts of this district. See Grimaldi v. Menifee, 2004 WL 912099 (S.D.N.Y. Apr.29, 2004); Panchernikov v. Federal Bureau of Prisons, 2004 WL 875633 (S.D.N.Y. Apr. 23, 2004); Crapanzano v. Menifee, 2004 WL 736860 (S.D.N.Y. Apr. 5, 2004); Crowley v. Federal Bureau of Prisons, 312 F.Supp.2d 453, 2004 WL 516210 (S.D.N.Y. Mar.17, 2004); Distefano v. Federal Bureau of Prisons, 2004 WL 396999 (S.D.N.Y. Mar. 4, 2004); Cohn v. Federal Bureau of Prisons, 302 F.Supp.2d 267 (S.D.N.Y.2004); Zucker v. Menifee, 2004 WL 102779 (S.D.N.Y. Jan. 21, 2004); Greenfield v. Menifee, 2003 WL 23181269 (S.D.N.Y. Nov. 30, 2003); Adler v. Menifee, 293 F.Supp.2d 363 (S.D.N.Y.2003); Cato v. Menifee, 2003 WL 22725524 (S.D.N.Y. Nov. 20, 2003). For the purposes of this opinion, I assume general familiarity with the rationales they adopt and the history of the BOP policy explained therein.

On June 9, 2003, petitioner Loeffler was sentenced to 18 months' imprisonment for health care fraud. At his sentencing, the petitioner specifically requested that the judge recommend that he be placed in the camp facility at FCI Otisville. (Transcript at 10, June 9, 2003, 02 Cr. 1595) The Judge honored this request and the BOP, acting on the authority granted to it under 18 U.S.C. § 3621(b), placed him in the facility so recommended. At no time prior to the filing of the instant petition, has Mr. Loeffler sought to be placed anywhere other than the facility at which he is presently confined — the camp at FCI Otisville.

The petitioner's anticipated release date, accounting for expected good time credit, is December 1, 2004, followed by three years of supervised release. (Verified Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 ("Petition") Ex. C) Absent good time credit, his release date will be February 9, 2005. (Petition Ex. C) The petitioner has been informed that he will be placed in community confinement for the final 10 percent of his sentence, beginning on or about October 15, 2004. (Petition ¶ 2; Ex. C) If he were eligible for CCC placement six-months prior to the expiration of his sentence (assuming good time), he could have been placed in such a facility on or about June 1, 2004.

Because I conclude that residency in a "community corrections facility" is not a "place of imprisonment" within the meaning of section 3621(b) of Title 18, the BOP discretion to transfer an inmate to a CCC is restricted to the time period defined in section 3624(c) of Title 18. Accordingly, the petition is denied.

Subject Matter Jurisdiction and Exhaustion

Jurisdiction properly rests with the Court. Section 2241 of title 28 provides a valid means for challenging the execution of a sentence of a person in federal custody. See Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir.1997). Courts in this district have recognized subject matter jurisdiction over challenges, pursuant to section 2241, to the failure of the BOP to initiate a review of a prisoner's suitability for a pre-release change in conditions of confinement for the last six months of a prisoner's sentence. See, e.g., Grimaldi, 2004 WL 912099, at *2 (collecting cases). Framed as a challenge to the failure to engage in a review that petitioner contends was mandated by established policy, Loeffler has standing to challenge the BOP's inaction. See Baur v. Veneman, 352 F.3d 625, 632 (2d Cir.2003) ("To establish Article III standing, a plaintiff must ... allege, and ultimately prove, that he has suffered an injury-in-fact that is fairly traceable to the challenged action of the defendant, and which is likely to be redressed by the requested relief."), citing Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)

Remedies apparently exist for a prisoner at Otisville to challenge a refusal to be transferred to a CCC. In Caltabiano v. Menifee, 2004 WL 1191955 at *2-3 (S.D.N.Y. May 27, 2004), the petitioner filed a "Request for Administrative Remedy" when the BOP designated him for community confinement to commence sixty days prior to release on a 48-month sentence.¹ The Warden of FCI Otisville provided a "response" explaining the reason for the BOP action and, dissatisfied with that response, the Caltabiano petitioner filed an appeal to the BOP's Regional Director in Philadelphia, who denied it. See id. at * 2.

Here, petitioner Loeffler explicitly requested that he be designated to the camp at FCI Otisville, and the BOP, upon the judge's recommendation, granted petitioner's request.² Until the filing of this petition, he has never requested any other change in custodial conditions. Petitioner acknowledges that he has not pursued administrative remedies and contends that it would be futile to do so. (Petition at 3 n. 1) Unlike the petitioner in Caltabiano who was denied CCC placement even at the 10% point, this petitioner challenges the failure to automatically consider him for placement in a CCC at the six-month mark. In view of the respondent's express decision "not to press his failure to exhaust as a ground for denying the petition", I will excuse petitioner's failure to do so, because respondent's position is tantamount to a concession that exhaustion would have been futile. See Cohn at 270 n. 2.³

The OLC Memorandum

On December 13, 2002, the Office of Legal Counsel ("OLC") of the Department of Justice issued a memorandum analyzing the legal underpinnings of a BOP practice of considering the placement of inmates in CCCs for the final six months of their sentences. The OLC memorandum concluded that the BOP practice rested on an erroneous reading of the statute governing CCC facilities and the breadth of BOP discretion. (Habeas Petition Ex. D) The memorandum concluded that CCC confinement does not constitute "imprisonment" for the purposes of section 3621(b), and that BOP "lacks clear general statutory authority to place in community confinement an offender who has been sentenced to a term of imprisonment." (Habeas Petition Ex. D) Among other things, it observed that inmates placed in CCCs generally become eligible for weekend and evening leave after their second week of confinement. (Petition Ex. D. § II(B)) This contrasted with the policies of a penal or correctional facility.

The OLC's Memorandum Opinion sought to reconcile the grant of general authority in section 3621(b) with the terms of pre-release custody established by 3624(c). The first part of the OLC's analysis concluded that pursuant the Federal Criminal Code and the Sentencing Guidelines, a federal minimum term could not be satisfied by community confinement, but only "a simple sentence of imprisonment." (Petition Ex. D § I(A)) It observed that imprisonment cannot be fully equated with community confinement, citing, inter alia, United States v. Adler, 52 F.3d 20, 21 (2d Cir.1995) (per curiam), a decision interpreting the Sentencing Guidelines.

Following the OLC's opinion, the BOP issued a "Memorandum for Chief Executive Officers," captioned "Community Confinement Procedure Changes." The memorandum informed Bureau officials that the BOP had reinterpreted its statutory authority regarding the placement of inmates in CCCs. In a "Memorandum for Inmate Population," respondent Frederick Menifee announced that pre-release CCC designations "are now limited in duration to the last 10% of an inmate's prison term to be served, not to exceed six months. This limitation complies with 18 U.S.C. 3624(c)." (Habeas Petition Ex. E)

In interpreting the statutes under which it operates, including sections 3621(b) and 3624(c), the OLC and BOP purported to clarify existing law. See, e.g., White v. Shalala, 7 F.3d 296, 303-04 (2d Cir.1993) (delineating interpretation and rulemaking). The BOP's interpretation of the preexisting statute is entitled to "some deference," see Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 2027, 132 L.Ed.2d 46 (1995), but not the greater deference afforded under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). The requirement that "some deference" be paid to the BOP's interpretation is in accord with the majority of decisions in this district.⁴ That the BOP now has a different understanding of a preexisting statute does not alter the deference afforded. See Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 1769, 114 L.Ed.2d 233 (1991) ("This Court has rejected the argument that an agency's interpretation `is not entitled to deference because it represents a sharp break with prior interpretations' of the statute in question.") quoting Chevron, 467 U.S. at 862, 104 S.Ct. at 2791. I evaluate the OLC's memorandum, as adopted by the BOP, with "a respect proportional to its `power to persuade.'" United States v. Mead, 533 U.S. 218, 235, 121 S.Ct. 2164, 2175-76, 150 L.Ed.2d 292 (2001); see also Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).

A Community Corrections...