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Frank Steffensen v. Richard B. Ives


October 3, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner is a federal prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pending before the court is respondent's motion to dismiss (MTD), filed on June 28, 2011, to which petitioner filed an opposition on July 25, 2011. Respondent contends that the petition should be dismissed for lack of subject matter jurisdiction based on ripeness, failure to state a cognizable habeas claim and because petitioner lacks standing. Petitioner, who is incarcerated at the Federal Correctional Institution (FCI) - Herlong, contends that the Bureau of Prisons (BOP) has not yet made a determination if he will be eligible for a year off his sentence, pursuant to 18 U.S.C. § 3621(e), if he is accepted into and completes the Residential Drug Abuse Program (RDAP).*fn1

Petitioner is presently serving a 168 month sentence for being in possession with the intent to distribute cocaine base. His scheduled release date is in 2020. Petitioner has also previously been in the custody of the BOP on three prior occasions. Petitioner was in custody from August 1994 to December 2002, from September 2003 to December 2003 and from August 2004 to April 2005. During his first period of incarceration petitioner completed the RDAP program in 2002, yet was found ineligible for a year off his sentence at that time.*fn2

For a determination to be made regarding the year off of a sentence, an inmate must first be found appropriate for the RDAP program. MTD at 6. The statute governing RDAP specifies "priority [for treatment will be] accorded based on an eligible prisoner's proximity to release." 18 U.S.C. § 3621(e)(1)(C). While the statute does not define "proximity to release" the RDAP program states that "[i]nterviews will be conducted based on the inmate's proximity to release, ordinarily no less then 24 months from release." MTD, Appx. 1, Chapter 2, page 13.

The gravamen of the petition is that it is a violation of petitioner's rights that he must wait until the end of his prison term before he can be eligible for the program and learn if he is accepted.*fn3 Petitioner requests this court to force the BOP to make the determination now if he is eligible for the program and the year off his sentence. Petitioner also asks the court to assume that he will be denied entry to the program and the year off his sentence.


The court has no jurisdiction to review claims unless they are ripe. United States v. Streich, 560 F.3d 926, 931 (9th Cir. 2009). The Supreme Court has explained, the basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507 (1967). A claim is not ripe "if it involves contingent future events that may not occur as anticipated, or indeed may not occur at all." Streich, 560 F.3d at 931 (quoting Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, (1985)).

The requirement that a party have "standing" to bring an action is part of the case-or-controversy provisions of Article III of the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There are three elements:

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] independent action of some third party not before the court. Third it must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision.

Id. at 50-51 (internal quotations & citations omitted).

The two doctrines are related: "ripeness can be characterized as standing on a timeline" and often "coincides squarely with standing's injury in fact prong." Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). To have standing, a party must demonstrate a realistic danger that he will suffer some injury as the result of the operation of the challenged statute or regulation. Id. at 1139.

In the instant case, plaintiff has not been rejected from the program and thus has not suffered any injury for the court to provide relief. Simply assuming that he will not be eligible for the program and the year off his sentence is insufficient. Petitioner urges the court to rule based on future events that may not occur as anticipated, or indeed may not occur at all. Petitioner asks this court to predict the issues upon which his RDAP may be denied. This is the exact type of situation that the Ninth Circuit sought to avoid in Streich.

To the extent the petition could be construed to challenge how the BOP prioritizes entry into the RDAP program based on 24 months from release, petitioner is not entitled to any relief. See Ruby v. Thomas, 2011 WL 1549205 (D. Or. April 21, 2011) (reviewing the "24--month rule" in the context of the BOP's charge to manage a residential drug treatment program, the court found reasonable for the BOP to establish a time-frame for conducting program interviews that takes into account the time needed for inmates to complete the program and the requirement that treatment be prioritized based on proximity to release); Su'esu'e v. Thomas, 2011 WL 2934315 (D. Or. June 22, 2011) (same); see also Mora--Meraz v. Thomas, 601 F.3d 933, 935 (9th Cir. 2010) (determining that the BOP's "unwritten requirement" that prisoners must present documented evidence of substance abuse within twelve months of admission into RDAP was valid under the APA).*fn4

Petitioner could be arguing that his case is ripe because he says it is, i.e., he demands an early decision such that he may litigate it with plenty of time to exhaust any type of judicial review. However, petitioner cites no authority that he can force an agency to make a ruling now, despite the fact that expedited decision making for RDAP contravenes agency regulations, because he desires to further litigate an adverse decision, speculating that it will be adverse. Moreover, as set forth in Reeb 636 F.3d at 1228, in challenging an individualized decision of the BOP in his case, petitioner would be demanding in court an individualized adjudication of his RDAP eligibility, something the court has no jurisdiction to do.

While it is unfortunate that limited resources prevent all inmates from participating in the program as soon as possible, the undersigned agrees and common sense dictates that inmates soon to be released back into the community should be given the priority for drug treatment. For all these reasons, the petition should be dismissed.

Accordingly, IT IS HEREBY RECOMMENDED that respondent's June 28, 2011, motion to dismiss (Doc. 13) be granted and this case dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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