IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JOHN A. ABBOTT §

VS. § CIVIL ACTION NO. 1:23cv39

WARDEN THOMAS §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner John A. Abbott, an inmate confined within the Bureau of Prisons (“BOP”),

proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The

above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636

and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United

States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the

disposition of the case.

The respondent filed a Motion to Dismiss or, in the Alternative, Motion for Summary

Judgment (doc. no. 8). As the respondent has presented information outside the pleadings, the filing

will be considered as a Motion for Summary Judgment. See FED.R.CIV.P. 12(d).

Factual Background

Petitioner contends that the BOP has incorrectly determined he is ineligible to receive earned

time credits under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, 132 Stat. 5194. He

acknowledges that inmates convicted of certain offenses are not eligible to receive earned time

credits. Petitioner asserts, however, that the BOP has incorrectly determined that his conviction was

for one of those offenses. Petitioner asks the court to direct the BOP to consider him eligible to

receive earned time credits.

The Motion for Summary Judgment

The respondent admits that at one point the BOP considered petitioner to be inelgible to

receive earned time credits. However, the respondent states the BOP has reversed that determination

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and has awarded petitioner earned time credits. As a result, the respondent asserts the petition is moot.

Attached as Exhibit A to the Motion for Summary Judgment is a Declaration from Fred

Roshto, the Complex Case Management Coordinator at the Federal Prison Complex in Terre Haute,

Indiana. Mr. Roshto states, in part, as follows:

To implement FSA directives, Congress directed the Attorney General to develop a

risk and needs assessment system for the BOP to determine inmates’ recidivism risk,

and the type of programming appropriate for them. In response, the Attorney

General announced the Prisoner Assessment Tool Targeting Estimated Risk and

Needs (“PATTERN”), to identify inmates’ risk levels. Additionally, the BOP

identified 13 distinct needs areas to be assessed, several of which involve inmate

participation by, e.g., completing surveys or questionnaires. Once the BOP has

determined an inmate’s needs, they are to assign inmates to corresponding

programming or productive activities.

Inmates are not eligible to earn time credits prior to the date of the enactment of the

First Step Act (December 21, 2018) or prior to their arrival at their designated

facility.

Inmates earn time credits for every thirty-day period in which they have successfully

participated in Evidence-Based Recidivism Reduction (“EBRR”) Programming or

Productive Activities (“PAs”) recommended based on the inmate’s risk and needs

assessment. Inmates begin earning 10 days of time credits per 30 day period, but

upon receiving two consecutive PATTERN assessments at a low or minimum

recidivism risk begin earning 15 days of time credits per 30 day period.

To successfully participate, an inmate must be participating in EBRR Programs or 

PAs that the Bureau has recommended based on the inmate’s individualized risk and

needs assessment and comply with the requirements of each EBRR Program or PAs. 

Inmates who do not complete the individualized risk and needs assessments cannot

therefore be participating in recommended programs and thus cannot be successfully

participating.

An inmate is not considered to be successfully participating if they are placed in a

Special Housing Unit, designated outside the institution, temporarily transferred to

the custody of another Federal or non-Federal government agency, placed in mental

health or psychiatric holds, or are considered to have opted out by not participating

in EBRR programs or PAs.

An inmate may lose earned time credits for violation of the requirements or rules of

an EBRR Program or PA. Time credits lost for violation of the requirements or rules

of a program may be restored by good conduct on a case-by-case basis. Inmates may

also lose earned time credits as a sanction for a violation of prison rules. Although

an inmate may have earned time credits, they may be ineligible to apply those credits

to their sentence.

I have reviewed Petitioner’s most recent FSA Time Credit Assessment. Since

December 21, 2018, through October 3, 2023, Petitioner has successfully participated in a total of 1733 days. Petitioner has had 14 disallowed programming days.

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Between December 21, 2018, and April 30, 2019, Petitioner was successfully

participating in EBRR Programs or PAs. During this period, Petitioner earned 10

time credits for every 30 day period. Petitioner earned 40 time credits.

Between April 30, 2019, and May 9, 2019, Petitioner was unsuccessfully participating in EBRR Programs or PAs. During this period, Petitioner was not in a qualifying

admit status as the Petitioner was transferring to the Federal Correctional Complex

at Beaumont, Texas.

Between May 9, 2019, and July 28, 2023, Petitioner was successfully participating

in EBRR Programs or PAs. During this period, Petitioner earned 10 time credits for

every 30 day period. Petitioner earned 510 time credits.

Between July 28, 2023, and August 2, 2023, Petitioner was unsuccessfully

participating in EBRR Programs or PAs. During this period, Petitioner was not in

a qualifying admit status as Petitioner was transferring to the Federal Correctional

Complex at Terre Haute, Indiana.

Between August 2, 2023, and October 3, 2023, Petitioner was successfully

participating in EBRR Programs or PAs. During this period, Petitioner earned 10

time credits for every 30 day period. Petitioner earned 20 time credits.

In total, Petitioner has earned, as of the date of this assessment, 570 earned time

credits. If Petition is eligible to apply their time credits, 365 time credits would be

directed towards effectuating an early release to supervised release. Petitioner would

then have 205 time credits that could be applied towards prerelease custody. 

Petitioner has had their sentence adjusted, by 365 days, from June 10, 2033, to June

10, 2032, in order to receive the benefit of the time credits.

(doc. no. 9-1 at 2-4).

Standard of Review

Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate if “the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);

Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996). A dispute about a material fact

is genuine only “if the evidence is such that a reasonable [finder of fact] could [find in favor of] the

nonmoving party. ” Anderson, 477 U.S. at 248.

On summary judgment, “[t]he moving party has the burden of proving there is no genuine

[dispute] of material fact and that it is entitled to judgment as a matter of law. ” Rivera v. Houston

Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir. 2003). If the moving party meets this burden, “the

non-moving party must show that summary judgment is not appropriate by setting forth specific

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facts showing the existence of a genuine issue concerning every essential component of its case.” 

Rivera, 349 F.3d at 247. The nonmovant’s burden “is not satisfied with some metaphysical doubt

as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a

scintilla of evidence.” Willis v. Roche Biomedical Labs, Inc., 61 F.3d 313, 315 (5th Cir. 1995).

Analysis

The FSA requires the BOP to evaluate each prisoner and determine the type and amount of

EBRR programming that is appropriate to reduce their risk of recidivism. 18 U.S.C. § 3632(a)(3). 

Prisoners are to be provided with incentives to participate in EBRR programs, including the award

of 10 days of time credits for every 30 days of successful participation in EBRR programming. 18

U.S.C. § 3632(d)(4)(A)(i). A prisoner determined by the BOP to be at a minimum or low risk for

recidivating who, over 2 consecutive assessments, has not increased their risk of recidivism, shall

earn an additional 5 days of time credits for every 30 days of successful programming participation. 

18 U.S.C. § 3632(d)(4)(A)(ii). However, a prisoner may not earn credits for EBRR programs

completed before December 21, 2018. 18 U.S.C. § 3632(d)(4)(B)(i). Time credits earned for

successful participation in recidivism programs shall be applied toward time in prerelease custody

or supervised release. 18 U.S.C. § 3632(d)(4)(C).

At one time, Petitioner was considered to be ineligible to receive earned time credits under

the FAS. However, Mr. Roshto’s declarations and the documents attached to it demonstrate

petitioner is now considered eligible to receive earned time credits and has received such credits.

“To invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened

with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial

decision.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). If a dispute ends or has otherwise

been resolved, it has become moot. Am. Med. Ass’n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988).

Petitioner asked the court to direct the BOP to consider him eligible to receive earned time

credits. BOP now considers petitioner to be eligible to receive the credits and has awarded him

credits. The dispute between the parties has therefore been resolved.

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As the dispute between the parties has been resolved, there is not a genuine dispute of

material fact as to whether the petition is moot. The Motion for Summary Judgment should

therefore be granted.

Recommendation

The respondent’s Motion for Summary Judgment should be granted and the petition

dismissed as moot.

Objections

Objections must be (1) specific, (2) in writing, and (3) served and filed within 14 days after

being served with a copy of this report. 28 U.S.C. § 636(b)(1); FED.R.CIV. P. 6(a), 6(b) and 72(b).

A party's failure to object bars that party from (1) entitlement to de novo review by a district

judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual

findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass’n.,

79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

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_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 7th day of December, 2023.

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