As will be discussed, because we construe Petitioner’s action as a § 2241 Habeas 1

Petition and not as an action for declaratory judgment under breach of contract theory, the

United States is incorrectly named as a Defendant in this case. Accordingly, the correct

Respondent is David Ebbert, Warden, FCI-Allenwood. See 28 U.S.C. § 2242 and § 2243. 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL G. RYAN, : CIVIL ACTION NO. 4:10-CV-1425 

:

Petitioner :

: (Judge Jones) 

v. :

: (Magistrate Judge Blewitt)

UNITED STATES OF AMERICA, :

:

Respondent :

REPORT AND RECOMMENDATION

 I. Background.

 Petitioner Michael G. Ryan is an inmate at the Federal Correctional Institution at Allenwood

(“FCI-Allenwood”), in White Deer, Pennsylvania. On July 9, 2010, he filed an action styled as

“Complaint for Declaratory Relief” against the United States alleging breach of his plea agreement.

1

(Doc. 1). Petitioner Ryan seeks declaratory and injunctive relief. He attached exhibits to his

“Complaint.” (Doc. 1, “Exhibits A-G”). Petitioner also filed an in forma pauperis Motion. (Doc. 2).

Petitioner’s action has not yet been served on Respondent. We now give preliminary

consideration to Petitioner’s action pursuant to Rule 4 of the Rules Governing Section 2254 Cases

in the U.S. District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions under Rule

1 (b)). See Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979); Romero v. Holt, 2006 WL

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 1 of 12
Rule 4 provides in relevant part: “If it plainly appears from the face of the petition and 2

any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the

judge shall make an order for its summary dismissal and cause the petitioner to be notified.”

 Petitioner’s obligation to pay the “costs of prosecution, imprisonment, probation, or 3

supervised release order” (emphasis added) appear crossed out as to all 3 counts in his original

plea agreement dated April 5, 1995. 

2

3437360 (M.D. Pa.); Winfield v. Martinez, 2008 WL 4541945 (M.D. Pa.). 

2

II. Petitioner’s Claims.

Petitioner alleges that on March 20, 1995, he entered into a plea agreement with the United

States in the Middle District of Pennsylvania, Criminal No. 94-0127. (Doc. 1, p. 2). Petitioner

agreed to plead guilty to 3 counts of related drug charges. (Doc. 1, Ex. B). The pertinent part of

Petitioner’s plea agreement read:

I further understand that, if the judge accepts my plea of guilty and the plea agreement

entered into between myself and the government, I will be sentenced as follows: count 1,

20 years imprisonment to run concurrent with all other terms of imprisonment, up to a

$4,000,000.00 fine, 5 years supervised release, $50.00 special assessment, as well as the

costs of prosecution, imprisonment, probation, or supervised release order and denial of

certain federal benefits. 

(Doc. 1, Ex. B) (emphasis added).

The italicized wording in the above quote was redacted and excluded from count 1 in

Petitioner’s final plea agreement. (Doc. 1, Ex. B). The same wording was redacted and excluded

from Petitioner’s plea of guilty to counts 2 and 3 as well. (Doc. 1, Ex. B). As such, the stated

wording was redacted and excluded from Petitioner’s entire final plea agreement. (Doc. 1, Ex. B).3

On April 4, 1995, Petitioner alleges that he pled guilty to the 3 counts of drug related charges

pursuant to the plea agreement he had with the United States. (Doc. 1, p. 2). Petitioner alleges

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 2 of 12
3

that on that same day both parties initialed the redacted and excluded lines referenced above, the

District Court acknowledged the plea agreement’s alteration and accepted Petitioner’s guilty plea.

(Doc. 1, Ex. C). Petitioner was taken into custody by the Bureau of Prison’s (“BOP”) on July 6,

1995, to begin serving his prison sentence. (Doc. 1, p. 3). 

On March 18, 2010, Petitioner was summoned to appear before an evaluation team at FCIAllenwood assembled to inform Petitioner that he had been recommended for Residential Reentry

Center (“RRC”) placement. Petitioner alleges that at the meeting he was presented with a

document requiring his signature for placement in the RRC. (Doc. 1, p. 3). He explains that at the

meeting he asked for and received a copy of the Community Based Program (“CBP”) Agreement,

the Agreement pertaining to his placement in the RRC. (Doc. 1, p. 3). He requested and was

granted some time to review the CBP Agreement before signing it. (Doc. 1 , p. 3). The CBP

Agreement requires that inmates “contribute to the cost [] of residenc[y]” placement in the RRC.

(Doc. 1, Ex. D). 

Petitioner alleges that on March 31, 2010, he informed Mr. Beaver, his (Petitioner’s) case

manager, and Mr. Netzband, his (Petitioner’s) unit manager, that he was “unable to enter into the

CBP agreement because of its requirement that, ‘[he] would be expected to contribute to the cost

of [his] residence through payments to the contractor.’” (Doc. 1, Ex. D). Petitioner states that he

told Mr. Netzband that he would not sign the CBP Agreement because it conflicted with the terms

of his 1995 plea agreement which redacted and excluded provisions requiring Petitioner to pay for

the costs of his imprisonment. Petitioner alleges that Mr. Netzband subsequently threatened to

sanction him if he did not sign the CBP Agreement.

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 3 of 12
We note that Petitioner has no established right to any particular job in prison, and 4

that the Constitution does not create a property right interest in prison employment. See

Douglas v. BOP, 2009 WL 1458177 (M.D. Pa.)(citations omitted).

We construe “REC SH1” to mean segregated housing. 5

4

Petitioner alleges that on May 7, 2010, Lieutenant Rohrer served him with an Incident

Report charging him with refusal to sign the CBP Agreement required to accept his program

assignment, BOP Code 306. (Doc. 1, Ex. E). He further alleges that on May 11, 2010, he was

summoned for a disciplinary hearing before the Unit Disciplinary Committee (“UDC”) which

consisted of Unit Manager Netzband and Unit Counselor Thompson. Petitioner claims that prior

to the hearing’s commencement, Mr. Netzband warned Petitioner that his (Petitioner’s) failure to

sign the CBP Agreement would result in sanctions against Petitioner. Petitioner was advised that

sanctions would include confinement in segregated housing and loss of earned good-time-credit.

(Doc. 1, p. 4) At the hearing’s conclusion, the UDC found that Petitioner committed the charged

offense (Code 306), and sanctioned Petitioner to the loss of his prison job for one year due to his

failure to sign the CBP Agreement. (Doc. 1, Ex. F).4

On May 13, 2010, Petitioner submitted an Inmate Request to Staff Form regarding his job

change due to the sanction imposed by the UDC. (Doc. 1, Ex. G). The prison staff responded to

Petitioner’s Request as follows:

You we removed from Unicor do to being found guilty of code 306 REFUSING WORK/PGM

ASSIGNMENT and sanctioned to LOSE FOB 1 YEAR on 05-11-2010 by the UDC. You were

placed in REC SH1 on 05-12-2010. 

(Id.).

5

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 4 of 12
Petitioner states that he has subsequently obtained a new prison job which pays less 6

than $10 per month. He states that his prior prison job from which he was allegedly removed

paid on average $430.00 per month. (Doc. 1, p. 8). 

5

Petitioner seeks this Court to declare that the BOP policy requiring that he pay the residency

cost while in the RRC conflicts with the terms of his plea agreement and that it breaches his plea

agreement. (Doc. 1, p. 5). He argues that he relied on the redaction to his plea agreement

concerning imprisonment costs when he decided to plead guilty to the 3 related drug charges.

(Doc. 1, p. 7). He also seeks this Court to declare that the government caused him harm and

breached his plea agreement when it allegedly used coercive conduct to try and gain his signature

to the CBP Agreement. (Doc. 1, p. 5).

Petitioner seeks injunctive relief from this Court to stop the BOP’s sanctions against him

imposed due to his refusal to sign the CBP Agreement. Petitioner claims that “the defendant [the

United States] has already inflicted irreparable harm through punitive actions related to the issue

at hand, and is threatening additional ongoing sanctions.” (Doc. 1, p. 8). Petitioner claims that he

suffered harm when his prison job as a factory worker was taken from him after refusing to sign the

CBP Agreement. (Doc. 1, p. 8). He asserts that he relied on the income from this job “to provide 6

support to his family, maintain verbal communication with his family through the phone service,

pay tuition for a higher education correspondence course, and purchase hygiene and other supplies

for day-to-day comfort.” (Doc. 1, p. 8). Additionally, Petitioner claims that he suffers

psychologically since being removed from his job as a factory worker. (Doc. 1, p. 9). He further

claims that his removal from his prison job upset his rehabilitative efforts to prepare for release to

society. (Doc. 1, p. 9). Petitioner seeks injunctive relief from this Court to stop any further punitive

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 5 of 12
Petitioner alleges that Mr. Netzband, his unit manager, promised him that “he 7

(Petitioner) would be sanctioned on a regular basis” until he signed the CBP Agreement and

complied with the RRC program. 

6

sanctions against him by the BOP for his refusal to sign the CBP Agreement.7

III. Discussion.

1. Petitioner's action is a § 2241 Habeas Petition

As a preliminary matter, we find that Petitioner’s “Complaint” should be construed as a

petition for habeas corpus, pursuant to 28 U.S.C. § 2241, and not as a Complaint for declaratory

judgment under breach of contract theory. As such, we will construe Petitioner’s challenge to the

BOP policy requiring him to sign the CBP Agreement and pay his residency costs with respect to

his RRC placement as a 2241 habeas petition. 

As stated, Petitioner seeks this Court to declare that the BOP policy requiring him to sign the

CBP Agreement violates his plea agreement which he claims was a contract with the United States.

(Doc. 1, p. 10). Petitioner also seeks this Court to preclude prison staff from imposing any more

sanctions on him due to his refusal to sign the CBP Agreement. He argues that he failed to exhaust

his administrative remedies because exhaustion in this case would be “futile or inadequate.” (Doc.

1, p. 10). Petitioner argues that exhaustion would be futile because he is not challenging BOP

policy, but rather seeking “declaration of his rights secured by his plea agreement” with the United

States. (Doc. 1, p. 10). 

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 6 of 12
As noted above, the United States is incorrectly named as Defendant. David Ebbert, 8

Warden, FCI Allenwood, is the correct Respondent to Petitioner’s habeas petition. 

We will recommend that Petitioner’s in forma pauperis Motion (Doc. 2) be denied since 9

his Motion shows that he can pay the $5.00 habeas filing fee.

7

As mentioned, we find that Petitioner’s action amounts to a habeas petition, and we will

treat it as such. The Third Circuit Court in Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 8

241-44 (3d. Cir. 2005), explained that when an inmate challenges the “execution” of his prison

sentence, a habeas petition is the proper way to proceed. Recently, in Murray v. Grondolsky, 2009

WL 2044821 (D.N.J.), the District Court construed an inmate’s challenge to the BOP policy at issue

in the present case as a habeas petition. See Murray, 2009 WL 2044821 affirmed by 2010 WL

548308 (C.A.3. (N.J.)). In Murray, the Third Circuit noted as follows:

We note that the District Court treated Murray’s petition as a petition for writ of 

habeas corpus instead of a petition for mandamus. This Court has held that a 

habeas petition pursuant to 28 U.S.C. § 2241 is the appropriate way to challenge 

BOP regulations (including placement in a community correction center or halfway 

house) because what is at issue is the “execution” of the prisoner’s sentence and 

not the “conditions” of his confinement. See Woodall, 432 F.3d at 241-44. 

2010 WL 548308, * 2, n. 2.

In our case, Petitioner Ryan challenges the execution of his sentence when he challenges

the requirement that he sign the CBP Agreement and contribute financially to his residency in the

RRC. Although Petitioner attempts to masquerade his claim as a breach of contract, at issue is

whether he must comply with the BOP policy requiring his payment upon entering the RRC which

placement was recommended as part of the completion of Petitioner’s federal sentence. Thus, as

in Murray we consider our Petitioner’s challenge as a habeas petition.

9

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 7 of 12
 It is unclear whether Petitioner seeks placement in the RRC without being required 10

to pay towards the cost or whether he completely opposes his placement in the RRC. We find

that Petitioner should clarify this ambiguity through the BOP’s administrative remedy process. 

8

2. Petitioner’s failure to exhaust his BOP Administrative Remedies

Because we construe Petitioner’s instant challenge as a habeas petition, he is required to

exhaust his administrative remedies before filing his writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. See Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996); Bradshaw v.

Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981) (per curiam). Here, Petitioner Ryan recognizes that

he has not exhausted his administrative remedies. (Doc. 1, p.10). He argues that it would be futile

to exhaust his administrative remedies because he claims he is not challenging BOP policy, but

rather, is seeking a declaration of his rights under his plea agreement he entered with the United

States. Since we construe Petitioner’s challenge as a habeas petition, we find that he is required 10

to exhaust his administrative remedies which he has admittedly failed to do. See Malvestuto v.

Martinez, 2009 WL 2876883 (M.D. Pa.). The Court in Malvestuto stated:

Although Section 2241 does not contain a statutory exhaustion requirement, courts 

in the United States Court of Appeals for the Third Circuit have consistently required 

an inmate to exhaust his administrative remedies prior to petitioning for a writ of 

habeas corpus. Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996) 

(citing Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981) (per curiam)); 

e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000). Exhaustion is required 

for the following reasons: “(1) allowing appropriate agency to develop a factual

record and apply its expertise facilitates judicial review; (2) permitting agencies to 

grant the relief requested conserves judicial resources; and (3) providing 

agencies the opportunity to correct their own errors fosters administrative 

autonomy.” Moscato, 98 F.3d at 761-62 (3d Cir. 1996) (citations omitted).

Malvestuto, 2009 WL 2876883 at *2; McCooey v. Martinez, 2010 WL 411744, * 2 (M.D. Pa.).

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 8 of 12
9

The Malvestuto Court then outlined the procedure utilized by federal inmates which was

established by the BOP and set forth at 28 C.F.R. §§ 542.10-542.19, stating:

Pursuant to this protocol, an inmate first must present his complaint to staff, and staff 

must attempt to resolve informally any issue before an inmate files a 

request for administrative relief. See § 542.13(a). If informal resolution 

proves unsuccessful, the inmate may raise the complaint with the warden of 

the institution where he or she is confined. Id. An inmate has twenty calendar 

days from the date of the alleged injury within which to complete this informal 

resolution process, he or she may appeal the decision to the Regional Office and the

General Counsel of the BOP. See § 542.14(a). If an inmate is dissatisfied with the 

response received during the informal resolution process, he or she may appeal the 

decision to the Regional Office and General Counsel of the BOP. See §542.15 

A BOP decision is not final -and thus not reviewable-until relief has been denied 

by the General Counsel’s Office.

Id.

In this case, as discussed, Petitioner Ryan acknowledges that he has failed to exhaust his

administrative remedies with the BOP. (Doc. 1, p. 10). Accordingly, we will recommend that his

habeas petition be dismissed for failure to exhaust his administrative remedies. Malvestuto at *4;

McCooey v. Martinez, 2010 WL 411744, *4.

3. Petitioner’s Action is without Merit even if it is a Declaratory Judgment Complaint

Even if we were to accept Petitioner Ryan’s action as a Declaratory Judgment Complaint

under breach of contract theory, his claim is without merit. The Third Circuit Court in Murray v.

Grondolsky, 2010 WL 548308, affirmed the District Court’s dismissal of Petitioner Murray’s similar

claim as meritless since it recognized the validity of the CBP’s requirement that he contribute

financially to his RRC placement. See Murray, 2010 WL 548308 *2. The Third Circuit Court

stated:

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 9 of 12
10

We agree with the District Court that Murray has failed to establish that he has a 

clear and indisputable right to pre-release placement in an RRC without participating 

in the subsistence program. The BOP is authorized to collect a subsistence fee 

from a federal prisoner for the costs of his confinement in community corrections 

centers, including RRC’s. The subsistence program, which requires inmates to pay 

a portion of the cost of the RRC, is a condition of placement in the RRC 

imposed to encourage financial responsibility in order that inmates may 

reintegrate into society. The subsistence program arises from BOP policy and 

emanates from the BOP’s general statutory authority to manage prisons. See

18 U.S.C. §§ 4042(a), 3624(c)(1).

Murray, 2010 WL 548308 *2.

Thus, in our case, Petitioner Ryan’s claim lacks merit even if his action is construed as a

Complaint for Declaratory Judgment.

IV. Recommendation.

Based upon the foregoing, it is respectfully recommended that Petitioner Ryan’s Petition for

Writ of Habeas Corpus (Doc. 1) be summarily dismissed. It is also recommended that Petitioner’s

in forma pauperis Motion (Doc. 2) be denied since Petitioner indicates that he receives between

$20 to $50 per month from family members and since he has a prison job. It is further

recommended that Petitioner be directed to pay the $5.00 habeas petition filing fee within ten (10)

days.

 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: August 4, 2010 

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 10 of 12
11

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL G. RYAN, : CIVIL ACTION NO. 4:10-CV-1425 

:

Petitioner :

: (Judge Jones) 

v. :

: (Magistrate Judge Blewitt)

UNITED STATES OF AMERICA, :

:

Respondent :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated August 4, 2010. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within fourteen (14) 

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 11 of 12
12

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: August 4, 2010 

Case 4:10-cv-01425-JEJ Document 5 Filed 08/04/10 Page 12 of 12