RENÉE MARIE BUMB, District Judge.
Petitioner Walter Anderson, a prisoner currently confined at the Federal Correctional Institution at Fairton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
On March 30, 2010, Petitioner filed a motion for summary judgment, which remains pending. On May 21, 2010, Respondent filed an answer to the amended complaint, and the relevant record of the case. Petitioner responded to the answer on June 17, 2010, and filed three additional motions that remain pending: a motion to schedule a hearing, a motion requesting adjudication, and a second motion requesting adjudication.
This Court has reviewed all submissions. For the following reasons, the amended petition must be denied and the motions must be dismissed.
On March 27, 2007, Petitioner was sentenced in the United States District Court, District of Columbia, to a total term of 108 months for convictions for Tax Evasion and Fraud, in violation of the United States Code. His projected release date, assuming good conduct time, is December 29, 2012.
Petitioner sought to participate in the Bureau of Prisons' 500-hour Residential Drug Abuse Treatment Program ("RDAP"), upon completion of which he would be eligible for consideration for a reduction in the term of his imprisonment of up to one year. The BOP determined that Petitioner did not meet the eligibility criteria for participation in the Program, based upon the fact that he did not have a record of substance abuse during the twelve-month period immediately preceding his incarceration in February 2005.
Specifically, on December 8, 2009, the Bureau of Prisons ("BOP"), through its Drug Abuse Program Coordinator, reviewed Petitioner's file for a determination of whether Petitioner had a substance abuse disorder. Utilizing Petitioner's Pre-Sentence Report ("PSR"), the Coordinator found a section labeled "Substance Abuse." It read:
The criminal conviction referred to in the PSR was in the Superior Court of District Columbia. As to that conviction, Petitioner was arrested on December 24, 2003, after a 2002 search warrant revealed drugs and drug paraphernalia in his home. He was sentenced to a fine, one year of probation, 14 days electronic monitoring, and community service.
The Drug Abuse Program Coordinator, in determining Petitioner's eligibility for RDAP, found that the PSR did not support a history of substance abuse within the 12-month period preceding Petitioner's February 2005 arrest for tax evasion and fraud, citing the following reasons: (1) Petitioner's admission that he had not used drugs since 2002; and (2) Petitioner's prior conviction for drugs occurred on March 19, 2002, when the search warrant was executed at his residence. The Coordinator informed Petitioner on December 8, 2009, that he did not qualify for enrollment into RDAP. However, Petitioner was offered enrollment into a non-residential drug abuse program, for which he would not receive early release consideration. Petitioner has not sought to participate in the non-residential program.
Petitioner initiated an administrative review of the denial of his request to participate in the RDAP, and the BOP agrees that he has exhausted the issue.
Petitioner argues in his amended petition that "he is not challenging the criteria that has been established by the BOP in relation to determining who should be eligible for the RDAP." (Am. Petition, p. 3). Instead, he argues that the BOP is not "fairly and appropriately administering the evaluation process based on these rules."
Respondent contends that this Petition should be denied because the BOP reasonably relied on the information in Petitioner's PSR in determining his non-qualification for participation in the RDAP. Respondent argues that "there is no information whatever in the PSR that documents any illegal drug use by Anderson (much less the sort of regular, non-sporadic use that could constitute a substance abuse disorder) after March 19, 2002." (Answer, pp. 19-20). Although the Superior Court conviction in the District of Columbia occurred in July 2004, and that Court imposed drug testing as a condition of probation, the date of the offense was 2002. It is the date of the offense, not the date of the conviction that is utilized for RDAP purposes.
In 1990, Congress charged the Bureau of Prisons with making available "appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." 18 U.S.C. § 3621(b). To carry out that requirement, as part of the 1994 Violent Crime Control and Law Enforcement Act, Congress amended § 3621 to require the BOP, subject to the availability of appropriations, to provide residential substance abuse treatment for all "eligible" prisoners.
The BOP has promulgated regulations at 28 C.F.R. § 550.56 to implement the statutory requirement. The regulation requires that "[t]he inmate must have a verifiable documented drug abuse problem." 28 C.F.R. § 550.56(a)(1). "The decision on placement is made by the drug abuse treatment coordinator." 28 C.F.R. § 550.56(b). The BOP application of this regulation is contained in Program Statement 5330.10, which provides, in pertinent part:
Program Statement 5330.10, Drug Abuse Programs Manual, Ch. 5, § 5.4.1.
The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, "DSM-IV," published by the American Psychiatric Association, defines Substance Abuse or Substance Dependence as a cluster of certain listed symptoms in the same twelve-month period. The first twelve-month period following Dependence or Abuse is designated Early Remission. The specifiers of Early Remission do not apply if the individual is in a "controlled environment." Examples of a "controlled environment" include "closely supervised and substance-free jails, therapeutic communities, or locked hospital units." DSM-IV at 175-183.
Thus, the BOP has instituted a practice of (1) reviewing the prisoner's history of substance abuse during the twelve-month period precedent entry into a "controlled environment" and (2) examining the prisoner's central file to determine if documentation exists to support a claim of substance abuse or dependence during the twelve-month period immediately preceding the prisoner's incarceration. Here, Petitioner claims that he was utilizing drugs in the twelve-month period preceding his federal incarceration.
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Similarly, here, Congress has not spoken to the precise question at issue but has left it to the discretion of the Bureau of Prisons to determine which prisoners "have a substance abuse problem." The BOP reasonably has turned to the DSM-IV criteria to identify prisoners who have a substance abuse problem. As the DSM-IV, in turn, dictates that diagnosis is dependent upon the existence of certain symptoms during a twelve-month period, and that remission is dependent upon the absence of those symptoms unless one is in a "controlled environment," it is reasonable for the BOP to evaluate the existence of those symptoms during the twelve-month period immediately preceding a prisoner's entrance into the controlled environment of long-term incarceration. Moreover, because of the sentence-reduction incentive, it is reasonable for the BOP to review the PSR and central file for documentation corroborating a prisoner's self-report of substance abuse. Thus, the challenged policy and practice of the BOP is a reasonable interpretation of the statute, as most courts agree.
In this case, there was no abuse of discretion in the BOP's application of the policy to Petitioner. Utilizing the one-year prior to the date of incarceration criteria, the target dates that the Coordinator was examining for Petitioner's drug use was from February 26, 2004 to February 26, 2005. The Superior Court conviction in District of Columbia was for conduct that occurred in March, 2002. While Petitioner was on probation there were no violations for drug use. In fact, Respondent has attached Petitioner's PSR as part of the record in this case. The Court's review of the PSR demonstrates that the BOP did not abuse its discretion, as there is no indication of drug use from February 26, 2004 to February 26, 2005. Petitioner's later admission that he was using drugs subsequent to 2002 was considered by the Coordinator and denied, as it was revealed during Petitioner's application for entry into RDAP, and was not supported by documentation.
Consequently, since it appears that Petitioner admitted that he had not used drugs since 2002; the PSR indicates that there were no incidents of drug abuse during Petitioner's probation during his service of the Superior Court sentence; and record does not reveal that the BOP was presented with documented evidence of Petitioner's drug abuse during the twelve months preceding Petitioner's entry of the BOP custody, Petitioner has not demonstrated an abuse of discretion by Respondent.
For the reasons set forth above, the Petition must be denied. Petitioner's pending motions will be dismissed as moot. An appropriate order follows.
