AMENDED REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
KAREN E. SCOTT, Magistrate Judge.
This Amended Report and Recommendation ("R&R") is submitted to the Honorable John F. Walter, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
BACKGROUND
Michael Fiorito ("Petitioner") has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 (Dkt. 1 ["Petition"].) The Petition seeks "to expunge the serious violent offender label/classification from his BOP [Bureau of Prisons] file." (Id. at 2.) Petitioner alleges that the BOP wrongfully increased his custody classification score from "low" to "medium" and transferred him to a more dangerous prison. (Id. at 5-6.) He alleges that this violated "the C.F.R. [Code of Federal Regulations], Petitioner's due process rights [under] the U.S. Constitution, and the Accardi doctrine." (Id. at 3.)
Respondent answered the Petition and argues that this Court lacks subject matter jurisdiction over Petitioner's claims. (Dkt. 14 at 6-8.) Alternatively, Respondent argues that Petitioner's custody classification score was properly calculated. (Id. at 8-11.)
An initial R&R was issued on September 12, 2018, recommending that the habeas relief be denied. (Dkt. 34.) This Amended R&R addresses Petitioner's subsequent filings and objections. (See Dkt. 41, 42, 43, 47.)
II.
APPLICABLE LEGAL PRINCIPLES
The Administrative Procedure Act ("APA") provides a cause of action for persons "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Yet the APA "withdraws that cause of action to the extent that the relevant statute `preclude[s] judicial review' or the `agency action is committed to agency discretion by law[.]'" Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (citing 5 U.S.C. § 701(a)).
18 U.S.C. § 3621(b) gives the BOP authority to classify federal inmates and designate the place of an inmate's imprisonment, considering:
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence—
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
18 U.S.C. § 3621(b). In exercising its authority under § 3621(b), the BOP has established a classification system for inmates and prisons that is laid out in BOP Program Statement 5100.08.1 18 U.S.C. § 3625 states that the APA "do[es] not apply to the making of any determination, decision, or order under this subchapter," i.e., including determinations under § 3621(b).
In Reeb, the Ninth Circuit held, "To find that prisoners can bring habeas petitions under 28 U.S.C. § 2241 to challenge the BOP's discretionary determinations made pursuant to 18 U.S.C. § 3621 would be inconsistent with the language of 18 U.S.C. § 3625." 636 F.3d at 1227 (finding Reeb could not challenge BOP's decision to admit or remove inmates from a residential drug treatment program). The Ninth Circuit noted, "Although judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority, Reeb's habeas petition alleges only that the BOP erred in his particular case," and the district court lacked jurisdiction over such a claim. Id. at 1228 (footnotes omitted); see also Burgess v. Rios, No. 12-00777, 2014 WL 3809400 at *5, 2014 U.S. Dist. LEXIS 106008 at *12 (E.D. Cal. Aug. 1, 2014) (finding amendment of habeas petition to challenge BOP placement decision would be futile), R&R adopted, 2014 WL 6872595, 2014 U.S. Dist. LEXIS 167675 (E.D. Cal. Dec. 3, 2014); see also Sharma v. Johnson, No. 13-2398, 2014 WL 2769139 at *4, 2014 U.S. Dist. LEXIS 83677 at *12 (E.D. Cal. June 18, 2014) ("This court lacks jurisdiction to order the petitioner's transfer to another prison.").
Additionally, the Ninth Circuit held that Reeb could not bring a habeas claim "based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law." Reeb, 636 F.3d at 1227. "Program statements," the Ninth Circuit reasoned, "are `internal agency guidelines [that] may be altered by the [BOP] at will' and that are not `subject to the rigors of the [APA], including public notice and comment.'" Id. (quoting Jacks v. Crabtree, 114 F.3d 983, 985 n.1 (9th Cir. 1997)).
In Rodriguez v. Copenhaver, 823 F.3d 1238 (9th Cir. 2016), in contrast, the Ninth Circuit reversed a district court's dismissal for lack of jurisdiction based on Reeb. The petitioner in that case argued that the BOP had violated § 3621(b) and the Due Process Clause by considering a sentencing recommendation by a judge who had been recused from his criminal case, and the Ninth Circuit agreed. Id. at 1242. The Ninth Circuit held, "Although a district court has no jurisdiction over discretionary designation decisions, it does have jurisdiction to decide whether the Bureau of Prisons acted contrary to established federal law, violated the Constitution, or exceeded its statutory authority when it acted pursuant to 18 U.S.C. § 3621." Id.
III.
DISCUSSION
A. Petitioner's Claims Are Not Moot.
Although neither party contends that this case is moot, federal courts "have an independent duty to consider sua sponte whether a case is moot." Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004). "[A] case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Id. (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). "This means that, throughout the litigation, the plaintiff `must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
When Petitioner filed this action, he was housed at Federal Correctional Institution ("FCI") Victorville II in California. (Petition at 5 ¶ 6.) The Petition asserts, "Even if Petitioner is transferred soon from Victorville this Petition will not become moot because Respondents' illegal actions will continue to detrimentally affect Petitioner." (Petition at 12.) Petitioner was subsequently transferred and is now housed at the United States Penitentiary ("USP") in Atlanta, Georgia. See BOP Inmate Locator, https://www.bop.gov/inmateloc/.
According to the BOP website, both FCI Victorville II and USP Atlanta are medium security facilities. There is no indication that Petitioner's custody classification score has been changed from "medium" back to "low." (See Dkt. 14 at 13-14 ¶ 7 [Sosa Decl. submitted by Respondent, stating that Petitioner was classified as a medium security inmate as of January 2, 2018].) The Court theoretically could still grant Petitioner the relief that he seeks: an order that Respondent modify his custody classification score. (Petition at 11.) Thus, the transfer did not render the Petition moot.
B. Petitioner is not Entitled to Federal Habeas Relief.
The gravamen of Petitioner's claims is that the BOP improperly applied BOP Program Statement 5100.08 in calculating his custody classification score. (See Dkt. 1 at 6-7 ¶¶ 12-18 [alleging that Petitioner's unit team "illegally and artificially inflated Petitioner's `history of violence'" score to the maximum level "based on a misdemeanor harassing phone call" even though "BOP Policy Statement 5100.08 clearly states verbal threats are to be considered minor violence" and "considers a serious violent crime as murder, kidnapping, [and] sexual assault"]). Even if true, such a claim does not entitle Petitioner to federal habeas relief because "noncompliance with a BOP program statement is not a violation of federal law." Reeb, 636 F.3d at 1227.
Although Petitioner makes several attempts to frame Respondents' actions as violations of federal law, as discussed below, these allegations do not entitle him to relief.
1. Due Process Claim.
In Ground I, Petitioner claims that his right to procedural due process was violated by his re-classification and transfer to a higher security prison. (Dkt. 1 at 8-9.) "The Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement," but "a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations" if "the nature of those conditions themselves `in relation to the ordinary incidents of prison life'" constitutes an "atypical and significant hardship." Wilkinson v. Austin, 545 U.S. 209, 221-23 (2005) (quoting Sandin v. Conner, 515 U.S. 472, 483-84 (1995)). The Supreme Court has noted that, "[i]n Sandin's wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system." Id. at 223. In Wilkinson, the Supreme Court found that conditions at a "supermax" prison gave rise to a liberty interest in their avoidance, finding:
For an inmate placed in [the supermax Ohio State Penitentiary,] OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration.... While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP. Sandin, at 483.
Wilkinson, 545 U.S. at 223-24.
Petitioner argues that he was entitled to procedural due process before being labeled a "serious violent offender" because this label "deprived him of a liberty interest as it makes him ineligible for programs that will allow him to earn extra good time and early release." (Dkt. 1 at 9 ¶ 24.) He argues that the label:
impose[s] [an] atypical and significant hardship on Petitioner such as forcing him to be housed at an extremely violent prison, to be housed [more than] 3,000 ... miles from home, denies him the ability to earn extra good time and the ability to apply for compassionate release and a commutation of sentence.
(Dkt. 1 at 9 ¶ 25.)2 In an affidavit filed in support of Petitioner's objections, he describes serious incidents of violence that he witnessed at USP Atlanta; he states that correctional officers also witnessed these incidents and took no action to prevent or stop them. (Dkt. 47.) He also states that inmates at USP Atlanta "are locked down 16 hours per day on average ... [w]hich is ten more hours a day than at low" security facilities; "[i]n fact," he claims, "inmates at low security prisons cannot be locked down due to there being no bathrooms in their rooms." (Id. ¶ 15.) The Court assumes, for present purposes, that Petitioner is actually subject to these conditions, because Respondents have not challenged these allegations, arguing instead that they are legally irrelevant.
Federal courts in this circuit have found that similar allegations do not create a liberty interest implicating due process. Transfer to a prison with a higher security level generally does not amount to an atypical and significant hardship. See, e.g., Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) ("[C]lassification of Myron at a `level IV' prison rather than at a `level III' prison does not, on the record before us, present an `atypical and significant hardship.' There is no showing that the conditions at level IV differ significantly from those `imposed upon inmates in administrative segregation and protective custody'—a distinction Sandin held to be relevant. ... There is also no showing that the conditions at level IV differ significantly from those at level III."); Gaston v. Hedgepeth, No. 10-4068, 2012 WL 3903920 at *2, 2012 U.S. Dist. LEXIS 128629 at*5 (N.D. Cal. Sept. 7, 2012) ("an allegation that an inmate is housed at a higher level of security, without more, does not present an `atypical and significant hardship'"); Owen v. Casaurang, No. 11-3321, 2012 WL 2065043 at *2, 2012 U.S. Dist. LEXIS 79391 at *3-5 (E.D. Cal. June 7, 2012) (finding no atypical and significant hardship where the plaintiff claimed that an "administrative determinant for violence" was placed in his file, which "prevented [him] from accessing and receiving the benefits of the fire camp program").
Transfer to a prison with more violence and lockdowns also does not amount to an atypical and significant hardship. See, e.g., Hubbard v. Warden of Wasco State Prison, No. 13-00762, 2015 WL 2345457 at *4, 2015 U.S. Dist. LEXIS 63565 at *9-10 (E.D. Cal. May 14, 2015) ("That a higher security yard is more restrictive or houses more violent inmates is not sufficient, in and of itself, to demonstrate that it is a condition which imposes atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life."); Warner v. Cate, No. 09-1568, 2010 WL 3220381 at *3, 2010 U.S. Dist. LEXIS 92042 at *7 (E.D. Cal. Aug. 13, 2010) ("Plaintiff's allegations regarding SVSP—that it has frequent lockdowns, houses more violent and disciplinary-action-prone inmates, and has more restrictive policies regarding access to the law library and recreation yard—do not show that being housed at SVSP imposes an atypical and significant hardship in relation to the ordinary incidents of prison life.").
The fact that Petitioner was transferred to a prison farther away from his family does not render the medium security classification an atypical or substantial hardship. See Monroe v. Kernan, No. 17-2714-SJO-DFM, 2017 WL 4082365 at *3, 2017 U.S. Dist. LEXIS 148646 at *8 (C.D. Cal. June 15, 2017) (collecting cases holding that "`separation of the inmate from home and family' does not rise to the level of a constitutional interest"), R&R adopted, 2017 WL 4063510, 2017 U.S. Dist. LEXIS 148562 (C.D. Cal. Sept. 12, 2017).
The inability to earn good time credits does not create a liberty interest under the Due Process Clause. See Ashby v. Lehman, 307 F. App'x 48, 49 (9th Cir. 2009) ("Ashby lacks a constitutionally-protected liberty interest in earning early release time credits, and he therefore was not entitled to the protections of due process before he was deprived of his ability to earn the credits."); Hill v. Swarthout, No. 15-2012, 2017 WL 431359 at *3, 2017 U.S. Dist. LEXIS 13379 at *7 (E.D. Cal. Jan. 31, 2017) (collecting circuit court cases holding that "there is no liberty interest in the opportunity to earn good-time credits"). Neither does the possibility that it will be more difficult for Petitioner to earn compassionate release or commutation of his sentence. See generally Sandin, 515 U.S. at 487 (chance that misconduct finding might make it more difficult for Conner to obtain parole was "simply too attenuated to invoke the procedural guarantees of the Due Process Clause"); Williams v. Ige, No. 17-00222, 2017 WL 2642967 at *3, 2017 U.S. Dist. LEXIS 93813 at *7 (D. Haw. June 19, 2017) ("There can be no state created liberty interest in the availability of clemency, or in the manner in which the State conducts clemency proceedings, because the denial of clemency does not impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. ... The denial of clemency merely means that the inmate must serve the sentence originally imposed.") (quotation marks and citations omitted).
In sum, Petitioner is not entitled to relief on his due process claim because he has not demonstrated that he has a liberty interest in a lower security classification.
2. Claim Based on the Accardi Doctrine.
In Ground II, Petitioner argues that the BOP's failure to follow its own program statement violates the "Accardi doctrine." (Dkt. 1 at 9-10.) This reference to Accardi v. Shaughnessy, 347 U.S. 260 (1954), refers to the idea that "a violation of an agency's regulation may violate due process." Hall v. E.E.O.C., 456 F.Supp. 695, 703 (N.D. Cal. 1978). In Hall, the court distinguished the regulations at issue from those in Accardi as follows:
The regulation involved [in Accardi] established a procedure to be followed in processing an alien's application to suspend his deportation. Two important distinctions from the instant case are immediately apparent. First, the regulations in [Accardi] were legislative rather than interpretive, they had "the force and effect of law." 347 U.S. at 265. Second, the Supreme Court in [Accardi] found in effect that there was a deprivation of an interest protected by the due process clause, as can be seen from the Court's statement that: "(I)n arriving at its decision (the Board of Immigration Appeals must) exercise its own independent discretion, after a fair hearing, which is nothing more than what the regulations accord petitioner [a]s a right." 347 U.S. at 268 (emphasis added). Of course, the Supreme Court, in determining whether interests are protected by the due process clause, now utilizes a much more sophisticated test than whether there existed a "right" as such. See Fuentes v. Shevin, 407 U.S. 67 (1972). But the message of [Accardi] remains clear that an agency's violation of its regulations is not a violation of due process if no interests within the protection of the due process clause are involved. Later cases cited by the plaintiffs only confirm the vitality of these distinctions, E. g., Freidberg v. Resor, 453 F.2d 935 (2d Cir. 1971).
Hall, 456 F. Supp. at 703 (emphasis added).
Petitioner's case is distinguishable on similar grounds. Petitioner alleges that Respondents violated a BOP Program Statement, which does not have the full force and effect of law. See Reeb, 636 F.3d at 1227; see also Carroll v. Smith, No. 07-00222, 2007 WL 2900221 at *3 n.1, 2007 U.S. Dist. LEXIS 74308 at *9 n.1 (E.D. Cal. Oct. 4, 2007) ("[T]he internal guidelines of a federal agency, that are not mandated by statute or the constitution, do not confer substantive rights on any party."), R&R adopted, 2007 WL 3293404, 2007 U.S. Dist. LEXIS 81996 (E.D. Cal. Nov. 5, 2007). Notably, in contrast to Copenhaver, Petitioner does not contend that Respondents violated 18 U.S.C. § 3621(b) by considering a factor disallowed by statute. See Copenhaver, 823 F.3d at 1242-43 (finding BOP erred by considering statement of recused judge because he was not the sentencing judge, as contemplated in § 3621(b)(4), and because his bias violated due process). Section 3621(b)(3) allows the BOP to consider "the history and characteristics of the prisoner." Petitioner simply contends that the way in which the BOP considered his history and characteristics violates its own program statement. This is not a violation of federal law, for the reasons explained in Reeb.
Additionally, for the reasons discussed above, Petitioner has not demonstrated that his classification as a "medium" rather than "low" security inmate implicates his federal due process rights.
C. Petitioner's Pending Motions.
Following Respondent's Answer, Petitioner filed a number of motions seeking various forms of relief. The Court addressed some of these motions in a minute order issue on March 7, 2018. (Dkt. 27.) Each of the remaining motions should be denied.
In several motions, Petitioner claims that Respondents are misrepresenting the reasons for his classification as a medium security inmate. He claims that they now contend they based his higher classification score on a reckless driving conviction, even though they previously informed him that the increase was based on a harassing phone call. (See Dkt. 23 at 1 [motion "seek[ing] a declaration or ruling from this Court that a misdemeanor harassing phone call is not a violent crime"]; Dkt. 28 [motion for preliminary injunction seeking "to compel Respondents to declare that a misdemeanor phone harassment offense cannot constitute a violent crime"]; Dkt. 34 [motion alleging that in May 2018, BOP officials admitted that a misdemeanor reckless driving offense is not a violent crime].) Petitioner also asks the Court to take judicial notice of: (1) his previous BOP classification as a low, rather than medium, security inmate (Dkt. 29); and (2) various authorities demonstrating, he argues, that reckless driving is not a violent offense for security classification purposes (Dkt. 30, 32, 33). As explained above, it is not within this Court's purview to determine whether the BOP properly classified Petitioner as a medium security inmate, because Petitioner has not shown that the decision violated federal law. Thus, these issues are irrelevant to the Court's analysis.
Petitioner moves for summary judgment on his habeas petition. (Dkt. 20.) To the extent such a motion is appropriate in a habeas proceeding,3 Petitioner is not entitled to summary judgment for the reasons discussed above.
Petitioner requests discovery "related to the alleged reckless driving charge" (Dkt. 24) and about statements a BOP official allegedly made concerning whether the reckless driving offense could properly be used to increase Petitioner's custody classification score (Dkt. 34). It is well settled that a habeas petitioner "is not entitled to discovery as a matter of ordinary course." Smith v. Mahoney, 611 F.3d 978, 996 (9th Cir. 2010) (quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997)). "A judge may, for good cause, authorize a party [in a habeas case] to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery." Rule 6(a), Rules Governing Section 2254 and 2255 Cases. "Good cause exists `where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief.'" Smith, 611 F.3d at 996 (quoting Bracy, 520 U.S. at 904). For the reasons discussed above, Petitioner has not demonstrated that discovery is warranted, because these issues are irrelevant to the Court's analysis.
IV.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Amended R&R; (2) dismissing the Petition with prejudice; and (3) denying Petitioner's pending motions (Dkt. 20, 23, 24, 28-34).
