United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE, UNITED STATES DISTRICT JUDGE
the Court is the pro se Petition of Justo Pastor Rodriguez
Rodriguez [Doc. 1] for a writ of habeas
corpus under 28 U.S.C. § 2241; and on United States
Magistrate Judge Michael T. Parker's Report and
Recommendation [Doc. 10], to which no
objection was filed by Plaintiff. This Court ADOPTS the
Report and Recommendation and DENIES the Petition
[Doc. 1] and DISMISSES the action WITH
Judge Parker's Report and Recommendation recommends
“that the relief sought in the Petition be denied
and that this action be dismissed with prejudice.” Doc.
10, p.5. Petitioner alleges that Respondents denied his
requests to be placed in a “Halfway House, ” also
known as a Residual Reentry Center (“RRC”). Doc.
1, p.2. Petitioner argues that Respondents' refusal to
place him in a RRC represents a violation of his rights under
the Equal Protection Clause of the United States
Constitution. Doc. 1, p.6. He also asserts a civil rights
claim under 42 U.S.C. § 1983 for the deprivation of his
rights, which presumably is a claim based on the Due Process
Clause. Doc. 1, p.6.
January 15, 2009, Petitioner was sentenced in the United
States District Court for the Western District of Louisiana
for aggravated reentry following deportation. Doc. 8-1, p.1.
He was sentenced to a 120-month term of imprisonment and five
years of post-release supervision. Doc. 8-1, p.1.
appears that Petitioner is attempting to bring this action as
a habeas corpus petition and a civil rights suit. See Doc. 1.
Any challenge to the fact or duration of a prisoner's
confinement is a habeas corpus matter. Jackson v.
Torres, 720 F.2d 877, 879 (5th Cir. 1983). Whereas, a
prisoner's challenge to conditions of confinement is
properly treated as a Section 1983 matter or Bivens v.
Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). Id.; see
Cook v. Texas Dep't of Criminal Justice Transitional
Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994). A
simple, bright-line rule for determining which procedural
path a prisoner should pursue is if a favorable determination
would not automatically entitle the prisoner to accelerated
release, the proper vehicle is a Section 1983 suit.
Carson v. Johnson, 112 F.3d 818, 820-821 (5th Cir.
Petitioner is not seeking an immediate release from custody.
Instead, Petitioner seeks a transfer to a RRC. Therefore, the
proper vehicle for Petitioner's claims is a Section 1983
suit. Id. However, “federal officials, acting
under color of federal law rather than state law, are not
subject to suit under [Section] 1983.” Resident
Council of Allen Parkway Village v. U.S. Dep't of Hous.
& Urban Dev., 980 F.2d 1043, 1053 (5th Cir.
1993)(citing Broadway v. Block, 694 F.2d 979 (5th
Court may construe Petitioner's claims as a Bivens
action: “A Bivens action is analogous to an action
under [Section] 1983 except that [section] 1983 applies to
constitutional violations by state, rather than federal
actors; this court does not distinguish between Bivens and
[Section] 1983 claims.” Murrell v. Chandler,
277 Fed. App'x 341, 343 (5th Cir. 2008)(citing Izen
v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005)).
claims he does not have an Immigration Detainer. Doc. 1, p.3.
The record, however, demonstrates that on July 9, 2010,
Immigration and Customs Enforcement issued an immigration
detainer on Petitioner. Doc. 8-3. Prison officials have
discretion over inmate classifications, and inmates have no
legitimate due process claim regarding these decisions.
Moody v. Daggett, 429 U.S. 78, 88 (1976); see Doc.
10, p.3, n.2.
Bureau of Prisons (“BOP”) uses a system of Public
Safety Factors as an aid to determine the level of security
necessary for a particular inmate. BOP Program Statement
5100.08, Ch. 5, pp.7- 13. Petitioner is a citizen of Honduras
and is classified as deportable. Doc. 8-1, p.3; Doc. 8-2;
Doc. 8-3. The BOP assigns a Public Safety Factor
(“PSF”) of “Deportable Alien” to
inmates who are not citizens of the United States. BOP
Program Statement 5100.08, Ch. 5, pp.7-13. The designation of
“Deportable Alien” requires that an inmate be
housed in at least a Low security level institution. BOP
Program Statement 5100.08, Ch. 5, pp.9, 13. BOP institutions
are classified into five security levels: Minimum, Low,
Medium, High, and Administrative. BOP Program Statement
5100.08, Ch. 1, p.1. A RRC is considered a minimum security
facility. See Phuong Dong Duong v. Martin, 2014 WL
1665012, at *2 (S.D.Miss. 2014)(“A halfway house or RRC
is considered a minimum security facility; therefore, an
inmate who cannot be housed in a minimum security facility is
ineligible for [a minimum security housing program].”).
Therefore, an inmate who cannot be housed in a minimum
security facility is ineligible for a transfer to a RRC.
BOP's decision to classify Petitioner as a
“Deportable Alien, ” does not give rise
to a constitutional claim. Id. (holding that inmate
has no constitutional right to participate in a
rehabilitation program). The United States Supreme Court has
“rejected the notion that every state action carrying
adverse consequences for prison inmates automatically
activates a due process right. . . . The same is true of
prisoner classification and eligibility for rehabilitative
programs in the federal system.” Moody v.
Daggett, 429 U.S. 78, 88, n.9 (1976).
prisoner's liberty interest protected by the Due Process
Clause 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). An inmate's classification and the resulting
ineligibility for certain programs do not impose an atypical
and significant hardship. See Becerra v. Miner, 248
Fed. App'x 368, 370 (3rd Cir. 2007)(“Being
classified with a PSF of deportable alien and its resulting
consequences of disqualification for certain programs, as
with any other security classification, is not outside what a
prisoner may reasonably expect to encounter as a result of
his or her conviction in accordance with due process of
also raises a claim based on the Equal Protection Clause.
Petitioner asserts that because he is Hispanic, Respondents
treated him differently than others by not transferring him
to a RRC. To state an equal protection claim, a party's
allegations must satisfy two prongs: (1) that he received
treatment differently than treatment received by similarly
situated individuals; and (2) that the unequal treatment
stemmed from a discriminatory intent. Taylor v.
Johnson,257 F.3d 470, 473 (5th Cir. 2001). Petitioner
has failed to provide support for his conclusory statement
that he has been excluded from placement in a RRC because of
his race. The record demonstrates that Petitioner is
ineligible for a transfer to a RRC because he is classified
as a Deportable Alien, not because he is Hispanic.
Additionally, the Fifth Circuit has held that prisoners with
immigration detainers “cannot show that exclusion for
rehabilitation programs, ...