The opinion of the court was delivered by: Jerome B. Simandle, District Judge
Petitioner, Kamal Narang, a federal inmate presently confined at FCI Fort Dix, New Jersey, has petitioned this Court, through counsel, Paul S. Brenner, Esq., for habeas corpus relief under 28 U.S.C. § 2241, mandamus relief pursuant to 28 U.S.C. § 1361, and a temporary restraining order and preliminary injunction pursuant to Rule 65(b), Fed. R. Civ. P., in a pleading entitled "Petition for Writ of Habeas Corpus, Mandamus and Injunctive Relief." Petitioner seeks to challenge the Bureau of Prisons' decision that he would receive approximately 45 days placement in a Community Corrections Center ("CCC"), and he seeks an Order of this Court that the BOP afford him a good faith, redetermination of his placement into a CCC by awarding the full six months permitted by 18 U.S.C. §§ 3621(e) and 3624(c).
Pursuant to this Court's Order entered August 2, 2006, the Respondent Charles E. Samuels, Jr., Warden at FCI Ft. Dix, filed an Answer to the Petition on August 15, 2006, accompanied by the Declarations of Nicole M. Ahmed and Camille Rodriguez and exhibits thereto. Meanwhile, on August 4, 2006, Petitioner's counsel, Mr. Brenner, filed a letter application with the Court, seeking immediate entry of a writ of habeas corpus, in light of Mr. Narang's approaching CCC placement date of September 19, 2006. Respondent argues that the petition and motions should be denied because the BOP has considered Mr. Narang's pre-release placement in good faith in light of the Third Circuit's decision in Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005)("Woodall").
Petitioner replied on August 16, 2006, arguing that the BOP has illegally refused to consider post-sentencing factors, especially the hardship that a delay in CCC placement causes for Petitioner's family who are experiencing severe difficulties due to his incarceration. Petitioner argues that consideration of pertinent policy statements of the Sentencing Commission is mandated by Section 3621(b)(5), and that among those policy statements is recognition that extraordinary family ties may warrant a shortening of confinement under U.S.S.G. § 5K1.1.
For the following reasons, the Court will deny the motions for injunctive and mandamus relief, and will deny the Petition upon its merits, because the record demonstrates that the BOP gave reasonable consideration to all pre-release placement factors and reached a decision that is within its discretion.
According to the record herein, Kamal Narang was sentenced on September 23, 2005, in the Eastern District of New York, to a term of one year and one day of imprisonment, to be followed by three years of supervised release, on conviction for wire fraud and transportation of stolen goods, in violation of 18 U.S.C. §§ 1343 & 2314, with no recommendation appearing in the judgment as to the type of correctional facility for service of any portion of imprisonment. On January 17, 2006, he was committed to the custody of the BOP by self-reporting to FCI Ft. Dix. If he receives all good conduct credit available under Section 3624(b), his projected release date is November 29, 2006, see Ahmed Declaration, Paragraph 3, Ex. 1a and Ex. 1c.
On February 10, 2006, Petitioner's Unit Team at FCI Ft. Dix conducted a review of his file, to include a recommendation for RRC placement (formerly CCC placement) at the end of his term of imprisonment to assist his re-entry into community life. The Respondent alleges that the Unit Team, acting two months after the Third Circuit's decision in Woodall, supra, considered RRC placement in good faith without regard to an "10% of sentence" limitation. Rodriguez Declaration, Paragraphs 7, 8. Ms. Rodriguez's duties as a Case Manager include participating with the Unit Manager in reviewing the relevant records for placement reviews and recommending the dates for referral of the inmate for RRC placement. Id. at 2-4. The referral package is reviewed ultimately by the Warden, and the Warden's determination goes to the Community Corrections Manager who arranges placement of the inmate with the appropriate and available RRC. Id. at 5.
In Mr. Narang's case, according to Case Manager Rodriguez, the Unit Team determined that Petitioner should be granted 45-75 days in the RRC, and the placement window of September 19-October 17, 2006, was chosen. Id. at 8. The Unit Team considered that Petitioner has strong family support, a residence and adequate financial resources, a relatively short sentence of 12 months and one day, and appropriate release funds to ensure a smooth transition into the community. Id. at 10. On July 3, 2006, Petitioner's BP-210 form was signed by the Warden and Mr. Narang was given an RRC placement date of September 19, 2006. Id. at 10.
The Petitioner, although dissatisfied with both the initial Unit Team designation of 45-75 days' placement, and with the Warden's final selection of September 22, 2006 as the placement date, has not filed any administrative appeal, let alone has he exhausted his administrative remedies, as admitted in his Petition itself. Petition, at Paragraph 12 ("... it is undisputed that petitioner has not pursued any remedies prior to the filing of the instant pleadings"). He asserts that exhaustion should be excused because there was not enough time to do so in February 2006, in light of the fact that if he were eligible for a six month placement, it could commence on or about May 29, 2006. Id. Petitioner originally argued that the BOP's determination violated the duty to consider all five factors enumerated in Section 3621(b), Petition at Paragraph 19, and that the BOP has abused its discretion in failing to place Petitioner at an earlier date into the RRC, id. at Paragraph 20. Subsequently, in a letter filed April 11, 2006 (Docket Item 2), Petitioner's counsel posited for the first time a new ground for the BOP's alleged abuse of discretion, arising from Petitioner's claim that two of his children have been under a doctor's primary care "primarily based on the absence of their father," and counsel attached medical records as documentation of that assertion. (Brenner Letter of April 10, 2006 at 1 and Ex. A thereto.) The records reveal that petitioner's son Steve (age 4)is receiving speech therapy due to oral motor and swallowing problems accompanied by reflux, and that Natasha (age 8) received an X-ray of her left hand and has suffered several attacks of parotitis, which is inflammation of the salivary gland. (Id. at Ex. A.) Several records from a clinic in New Delhi, India, are included referring to treatments rendered to a Mr. P. L. Narang (age 69) for partial rectal blockade and for a Sheela Narang (age 61) for hypertension and coronary artery disease.
Also in his April 10th letter to the Court, Petitioner's counsel argues that the BOP's placement determination is made in bad faith considering that Mr. Narang is a victim of an unprovoked assault at the Prison Camp, attaching Ex. B (which is a BOP administrative detention order indicating that on February 21, 2006 Mr. Narang was placed in protective detention while a "keep-away" order was entered as to the assailant, Inmate Caldwell). Mr. Narang himself also submitted some of the same medical records and the administrative detention order to this Court in his letter of June 8, 2006, which was not also mailed to the Respondent or to the United States Attorney's Office defending this case. So far as the record reflects, neither Petitioner nor his counsel presented these grounds (family health and administrative detention) to the BOP as a basis for changing the initial RRC assignment determination that is under attack here.
A. Exhaustion of Remedies
The Petition, in Paragraphs 10-13, admits that Petitioner has not exhausted his available administrative remedies, but asks that exhaustion be excused on grounds of futility and based upon the short amount of time remaining on his sentence. Id, at Paragraphs 12-13. The Respondent's Answer denies that exhaustion of administrative remedies would be futile, Answer ¶ 13. The BOP's record system also reflects that Petitioner has not invoked the Administrative Remedy Procedure. Ahmed Decl. ¶ 5 and Ex. 1 b [SENTRY Administrative Remedy Generalized Retrieval printout.] The Respondent further notes that Narang has not pursued the available administrative remedy at any time after the Unit Team's recommendation of a 45 to 75 day placement period on February 10, 2006, even though that determination was made 9 1/2 months before his projected release date and 3 1/2 months before even his "six month" date. Respondent's Answer at 14 n. 3. Respondent argues that Petitioner's claim of time pressure as a ground for ...