United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATIONS
BRAMLETTE UNITED STATES DISTRICT JUDGE
cause is before the Court on Magistrate Judge Michael T.
Parker's Report and Recommendation (docket entry 9), to
which no objections were filed by the Petitioner. Having
carefully reviewed the Report and Recommendation, and
applicable statutory and case law, the Court finds and orders
Alcides Garcia (“Garcia”) was convicted of Health
Care Fraud and sentenced in the United States District Court
for the Southern District of Florida on September 21, 2009.
See Response (docket entry 6). He now files a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. See
Petition (docket entry 1).
argues that the BOP has wrongfully (1) prohibited him from
being placed in a minimum security prison, (2) prohibited him
from participating in a residential drug abuse program
(“RDAP”), (3) prohibited him from participating
in a residential reentry center (“RRC”), (4)
prohibited him from being transferred to a facility closer to
his family, (5) prohibited him from being reunited with his
family at the earliest possible time, and (6) prohibited him
from participating in Federal Prison Industries
(“FPI”). See Petition (docket entry 1 at 3-4).
Garcia claims that his incarceration at the Adams County
Correctional Complex (“ACCC”) contravenes the
letter and spirit of Program Statement 8120.02, Ch. 5, p. 6
and that this constitutes a violation of his constitutional
rights, specifically the rights afforded by the Due Process
Clause. See Petition (docket entry 1 at 6-9).
Magistrate Judge's Recommendation
Judge Parker entered his Report and Recommendation on
December 16, 2016, wherein he considers Garcia's petition
under 28 U.S.C. § 2241 and recommends that the relief
sought in the Petition for Writ of Habeas Corpus be denied
and that this case be dismissed with prejudice. See Report
and Recommendation (docket entry 9 at 6).
Magistrate Judge opines that the Petitioner cannot pursue
these claims in a 28 U.S.C. § 2241 petition. A habeas
corpus matter emanates when the action challenges the fact or
duration of an inmate's confinement. Jackson v.
Torres, 720 F.2d 877, 879 (5th Cir. 1983).
Alternatively, an inmate's challenge to the conditions of
confinement is properly pursued as a civil rights challenge
under Section 1983 or Bivens v. Six Unknown Named Agents
of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
See Cook v. Texas Dep't of Criminal Justice
Transitional Planning Dep't., 37 F.3d 166, 168 (5th
Cir. 1994). Confusion arises when an inmate challenges an
unconstitutional condition of confinement or prison procedure
that affects the timing of his release from custody.
Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir.
1997). In the Fifth Circuit, if a favorable determination of
an inmate's claims would not automatically entitle the
inmate to accelerated release, the proper vehicle is a civil
rights suit. Id. Petitioner has failed to allege
that any favorable determination would entitle him to a
the Magistrate Judge finds that Petitioner has not asserted a
violation of a constitutionally protected right entitling him
to relief pursuant to Bivens.Petitioner requests that he be
transferred to a facility where he would have an opportunity
to participate in certain programs and receive benefits. He
further claims that the refusal to transfer him constitutes a
violation of his rights afforded by the Due Process Clause.
However, the BOP's decision to classify Petitioner as a
“Deportable Alien, ” despite the fact that he may
not be deported, does not give rise to a constitutional
claim. See e.g., Perez v. Lappin, 672 F.Supp.2d 35
(D.D.C. 2009)(holding that a “Deportable Alien”
Public Safety Factor as applied to a Cuban did not violate
the petitioner's constitutional rights or violate the
Administrative Procedures Act); see also, Phuong Dong
Duong v. Martin, 2014 WL 1665012, at *2 (S.D.Miss. April
25, 2014)(holding that petitioner's security
classification of “Deportable Alien” did not
implicate any constitutional interest).
petitioner also claims that he was deprived of liberty
without due process because the BOP refused to transfer him
to another facility. A prisoner's liberty interest
protected by Due Process is “generally limited to
freedom from restraint which . . . imposes an atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 483-84 (1995). The protections of
the Due Process Clause do not extend to every adverse or
unpleasant condition experienced by an inmate. Madison v.
Parker, 104 F.3d 765, 767 (5th Cir. 1997). Prisoner
classification and eligibility for rehabilitative programs in
the federal system do not automatically activate a due
process right. Moody v. Daggett, 429 U.S. 78, 88
(1976). Moreover, classification and ineligibility also do
not impose an atypical and significant hardship. Becerra
v. Miner, 248 F. App'x 368, 370 (3rd Cir. 2007). It
is well settled that inmates do not have a constitutionally
protected right to serve a sentence in any particular
institution. Tighe v. Wall, 100 F.3d 41, 42 (5th
no objection by the plaintiff and having reviewed the Report
and Recommendation for plain error, the Court is satisfied
that Magistrate Judge Parker has issued a thorough opinion.
Accordingly, IT IS HEREBY ORDERED that the undersigned ADOPTS