NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

RICKY LEE MENNEN, :

 :

Petitioner, :

 :

v. :

 :

DONNA ZICKEFOOSE, :

:

 Respondent. :

 :

Civil Action No. 11-1794 (JBS)

O P I N I O N

APPEARANCES:

Ricky Lee Mennen, Pro Se

09420-029

Federal Correctional Institution

P.O. Box 2000

Fort Dix, NJ 08640

PAUL J. FISHMAN, 

United States Attorney

By: Kristin Lynn Vassallo, AUSA 

Office of the U.S. Attorney

970 Broad Street

Newark, NJ 07102

Attorney for Respondent

SIMANDLE, Chief Judge:

Petitioner, Ricky Lee Mennen, filed a petition for a writ of

habeas corpus, pursuant to 28 U.S.C. § 2241. Respondent has 1

Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions. (continued...)

***

Case 1:11-cv-01794-JBS Document 8 Filed 01/13/12 Page 1 of 9 PageID: 140
filed a response to the petition, and Petitioner has filed a

reply. This Court has considered all submissions. For the

following reasons, the petition will be dismissed.

BACKGROUND

Petitioner was convicted in the United States District Court

for the Northern District of Iowa for manufacturing and

attempting to manufacture five grams or more of methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1). On August 16, 2005, he

was sentenced to an 87-month term of imprisonment. 

In January 2010, Petitioner’s Unit Team at FCI Fort Dix held

a program review. As Petitioner showed interest in relocating to

Michigan upon release, and was on the waiting list for the

Residential Drug Abuse Program (“RDAP”), the Unit Team did not

make a recommendation about Residential Reentry Center (“RRC”)

placement at that time. A Unit Team review was attempted in July

2010, but Petitioner chose not to cooperate. In January 2011, a

Unit Team review was held, and the team considered Petitioner’s

placement for up to twelve months in an RRC. The Unit Team

considered the factors set forth in 18 U.S.C. § 3621(b), as well

as Petitioner’s need for services, public safety, and the

necessity of the Bureau to manage its inmate population. 

(c) The writ of habeas corpus shall not extend to a

prisoner unless—... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States .... 

2

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(Answer, p. 6). After reviewing Petitioner’s file, the Unit Team

recommended an RRC placement of 120 days.

Petitioner, however, suffers from insulin-dependent

diabetes. Therefore, Petitioner’s case manager consultation with

the Bureau of Prisons’ (“BOP”) Regional Medical Director of the

North Central Region, concerning whether it was medically

appropriate to place Petitioner in an RRC. Records showed that

Petitioner had not been taking care of himself, was non-compliant

with medical instructions, and did not check his blood sugar

daily. Because there is diminished medical staff at an RRC to

meet Petitioner’s medical needs, the doctor concluded that

Petitioner should not be placed in an RRC. (Answer, p. 8, citing

Declaration of Dr. Harvey). On February 23, 2011, the BOP’s

North Central Regional Medical Director informed the staff at FCI

Fort Dix that Petitioner would not receive RRC placement.

In his petition, Petitioner argues that the BOP’s decision

to not place him into an RRC violated his constitutional rights

under the Due Process Clause of the Eighth Amendment; that the

BOP staff failed to make an individualized recommendation as to

his RRC placement; and that he was entitled to a 12-month RRC

placement due to his participation in programs. (Petition, ¶¶ 9-

12).

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DISCUSSION

A. Petitioner Has Failed to Exhaust Remedies.

The BOP Administrative Remedy Program is a multi-tier

process that is available to inmates confined in institutions

operated by the BOP for “review of an issue which relates to any

aspect of their confinement.” 28 C.F.R. § 542.10. An inmate

must initially attempt to informally resolve the issue with

institutional staff. See 28 C.F.R. § 542.13(a). If informal

resolution fails or is waived, an inmate may submit a BP-9

Request to “the institution staff member designated to receive

such Requests (ordinarily a correctional counsel)” within 20 days

of the date on which the basis for the Request occurred, or

within any extension permitted. See 28 C.F.R. § 542.14. An

inmate who is dissatisfied with the Warden's response to his BP-9

Request may submit a BP-10 Appeal to the Regional Director of the

BOP within 20 days of the date the Warden signed the response.

See 28 C.F.R. § 542.15(a). The inmate may appeal to the BOP's

General Counsel on a BP-11 form within 30 days of the day the

Regional Director signed the response. See id. Appeal to the

General Counsel is the final administrative appeal. See id. If

responses are not received by the inmate within the time allotted

for reply, “the inmate may consider the absence of a response to

be a denial at that level.” 28 C.F.R. § 542.18.

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According to the BOP’s records, Petitioner has not filed any

administrative remedies. (Answer, p. 9, citing Declaration of

Tara Moran).

Although 28 U.S.C. § 2241 contains no statutory exhaustion

requirement, a federal prisoner ordinarily may not bring a

petition for writ of habeas corpus under 28 U.S.C. § 2241,

challenging the execution of his sentence, until he has exhausted

all available administrative remedies. See, e.g., Callwood v.

Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States

Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v.

Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). The exhaustion

doctrine promotes a number of goals:

(1) allowing the 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.

Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999), aff'd,

248 F.3d 1130 (3d Cir. 2000); see also Moscato v. Federal Bureau

of Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Nevertheless,

exhaustion of administrative remedies is not required where

exhaustion would not promote these goals. See, e.g., Gambino v.

Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required

where petitioner demonstrates futility); Lyons v. U.S. Marshals,

840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where

5

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it “would be futile, if the actions of the agency clearly and

unambiguously violate statutory or constitutional rights, or if

the administrative procedure is clearly shown to be inadequate to

prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,

*2 (E.D. Pa. 2000) (exhaustion not required where delay would

subject petitioner to “irreparable injury”).

Here, Petitioner has not attempted to exhaust administrative

remedies. Further, Petitioner has not alleged any facts that

would permit this Court to find that exhaustion of his

administrative remedies would be futile or that requiring

exhaustion would subject Petitioner to “irreparable injury.” As

such, the petition must be dismissed for failure to exhaust.

B. Alternatively, Petitioner’s Case is Now Moot.

According to the federal inmate locator website,

www.bop.gov, Petitioner was released from federal custody on

December 24, 2011. Therefore, his claims regarding RRC placement

and the Second Chance Act are moot.

Federal courts are not empowered to decide moot issues. See

U.S. Const. art. III, § 2, cl. 1.; Doe v. Delie, 257 F.3d 309,

313 (3d Cir. 2001) (citing North Carolina v. Rice, 404 U.S. 244,

246 (1971)). To avoid mootness, a controversy must exist at all

stages of review. See id. (citing New Jersey Turnpike Auth. v.

Jersey Central Power & Light, 772 F.2d 25, 31 (3d Cir. 1985)).

“Mootness has two aspects: (1) the issues presented are no longer

6

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‘live’ or (2) the parties lack a cognizable interest in the

outcome.” Id. (quoting New Jersey Turnpike Auth., 772 F.2d at

31).

When Petitioner was released, “the Petition became moot

because Petitioner was no longer threatened with ‘an actual

injury traceable to the [BOP] and likely to be redressed by a

favorable judicial decision.’” Hagwood v. Grondolsky, 2009 WL

455499 (D.N.J. Feb. 19, 2009) (Hillman, J.) (unpubl.) (finding

that Petitioner's placement into home confinement rendered his

petition challenging the calculation of time for placement under

the “Second Chance Act” moot) (quoting Spencer v. Kemna, 523 U.S.

1, 7 (1998)). See also Chu v. Schultz, 2009 WL 689675 (D.N.J.

Mar. 11, 2009) (Kugler, J.) (unpubl.) (also finding that

Petitioner's placement into halfway house rendered Petition

challenging calculation of time for placement under “Second

Chance Act” moot); Speight v. Quintana, 2008 WL 4646122 (W.D. Pa.

Oct. 17, 2008) (unpubl.) (because Petitioner has been released to

a halfway house, his challenge under the “Second Chance Act” “is

no longer of consequence to him; he no longer has the requisite

‘personal stake’ in the outcome of the litigation”); Burkey v.

Marberry, 556 F.3d 142 (3d Cir. 2009) (holding that federal

inmate's challenge to BOP determination that he is not eligible

for early release became moot when inmate was released from

prison because “[t]he possibility that the sentencing court will

7

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use its discretion to modify the length of Burkey's term of

supervised release ... is so speculative that any decision on the

merits by the District Court would be merely advisory and not in

keeping with Article III's restriction of power”).

In the instant case, because the issues are no longer “live”

and because a controversy no longer exists, the issues raised in

the instant petition are moot.

C. Alternatively, Petitioner’s Claims Have No Merit.

The Second Chance Act does not guarantee a one-year RRC

placement, but “only directs the Bureau of Prisons to consider

placing an inmate in a RRC for up to the final twelve months of

his or her sentence.” Lovett v. Hogsten, 2009 WL 5851205 (6th

Cir. Dec. 29, 2009) (unpubl.); see also Travers v. Federal Bureau

of Prisons, 2009 WL 4508585 (D.N.J. Nov. 30, 2009) (Hillman, J.)

(finding that “... nothing in the Second Chance Act entitles

Petitioner to a halfway house placement longer than the 120–150

days already approved. These pre-release placement decisions are

committed, by statute, to the discretion of the Director of the

Bureau of Prisons, whose exercise of discretion is to be guided

by the enumerated considerations.”).

In this case, Petitioner was considered for RRC placement,

and, in fact, received an RRC placement of 120 days by his Unit

Team at FCI Fort Dix, despite the fact that the placement was

denied due to medical reasons. This Court finds no reason to

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upset the findings of the BOP. Although Petitioner disagreed

with the BOP's decision, it is clear that Petitioner was properly

considered, and thus no constitutional violation occurred.

CONCLUSION

For the foregoing reasons, Petitioner's petition for a writ

of habeas corpus, filed pursuant to 28 U.S.C. § 2241, is hereby

dismissed. An appropriate Order accompanies this Opinion.

 s/ Jerome B. Simandle 

JEROME B. SIMANDLE

Chief U.S. District Judge

Dated: January 13, 2012

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