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Morrison v. Woods

United States District Court, M.D. Alabama, Northern Division

October 11, 2018

LARRY MORRISON, Reg. No. 43820-112, Petitioner,
v.
WALTER WOODS, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This case is before the court on a 28 U.S.C. § 2241 petition for writ of habeas corpus filed by Larry Morrison, a federal inmate confined in the Maxwell Federal Prison Camp at the time he filed this civil action.[1] In this petition, Morrison presents numerous challenges to the constitutionality of actions taken against him during his participation in the Residential Drug Abuse Program (“RDAP”) while at Maxwell.[2] Specifically, Morrison alleges the conduct of prison personnel violated his right to equal protection because the officials acted due to his religious beliefs and further alleges they retaliated against him for seeking relief from adverse actions of prison officials. Doc. 1 at 7. Morrison maintains these actions resulted in prison personnel improperly determining that he “would be doing an extra (7) Seven Months in RDAP[.]” Doc. 1 at 12; Doc. 1 at 17 (On September 27, 2016, Chief Psychologist “Juliana Dodd informed me . . . that she was rolling me back (7) Seven months to Rational Phase which was starting in a few weeks.”). In addition, Morrison asserts that the challenged actions led him to the conclusion that “signing out [of RDAP] was my only honest alternative” as he believed continued participation in the program would require him to contradict his beliefs. Doc. 1 at 17; Doc. 40-2 at 2 (petitioner alleging he “felt coerced into withdrawing” from RDAP). Morrison seeks an order directing the BOP to provide him “the completion certificate for RDAP, a return of the year off that was taken from [him], and immediate or expedited placement in halfway house/home confinement; or a fair and impartial clinical team which will decide if he is worthy of [the requested relief] or not.” Doc. 1 at 17.

         In his responses to the petition, the respondent denies any violation of Morrison's constitutional rights during his participation in RDAP. The respondent argues that Morrison voluntarily withdrew from the program on September 28, 2016 by completing the appropriate form for withdrawal. Doc. 20-4 at 48-49. The record establishes that Morrison discussed his withdrawal from RDAP with the DAP Coordinator, Dr. Hughes, who processed Morrison's request for withdrawal. Doc. 20-4 at 49. Dr. Hughes noted that “Inmate Morrison reported in writing and verball[y] that he wanted to voluntarily withdraw from the RDAP. He is aware he will no longer be eligible for early release. [Morrison] may apply for reconsideration for the RDAP after 90 days and/or apply for non-residential RDAP.” Doc. 20-4 at 49. Morrison acknowledged his request for voluntary withdrawal from RDAP and his understanding of the ramifications of his withdrawal via his signature on the form. Doc. 20-4 at 49. The respondent asserts that at the time Morrison chose to withdraw from RDAP he had failed to demonstrate significant treatment progress after being afforded multiple opportunities for adjustment such that the Clinical Team determined “Morrison was not ready for RDAP completion and that a return to Core Phase would be most beneficial to Petitioner to help him build skills in more effectively using Rational Self-Analysis and Rational Self-Counseling.” Doc. 20-4 at 7. Contrary to Morrison's assertion that he earned “the year off” relative to completion of RDAP, Doc. 1 at 17, it is undisputed that Morrison did not complete RDAP which rendered him ineligible “to receive the benefit of the sentence reduction incentive.” Doc. 29-1 at 4. The respondent also argues that the petition is due to be denied because Morrison failed to fully and properly exhaust his available administrative remedies prior to seeking relief from this court. Doc. 20 at 11-13.

         In support of his exhaustion defense, the respondent maintains that

[t]he BOP's Administrative Remedies process provides inmates with opportunities for formal review of their complaints related to any aspect of their imprisonment. [See 28 C.F.R. § 542.10(a)]. To initiate the formal Administrative Remedies process, however, an inmate must first file a request for administrative remedy with the institution's Warden (BP-9, level 1). If the inmate is dissatisfied with the response at the institutional level, the inmate may appeal the decision to the Regional Director (BP-10, level 2) and, thereafter, to the General Counsel's National Inmate Appeals Office (BP-11, level 3). 28 C.F.R. § 542.15. An inmate must appeal through all three levels of the Administrative Remedy Process to exhaust all administrative remedies. 28 C.F.R. § 542.15(a) (“Appeal to the General Counsel is the final administrative appeal.”).
. . . . The BOP provides a three-step administrative remedy program for all confinement issues, and “[a]n inmate has not fully exhausted his administrative remedies until he has appealed through all three levels.” Irwin v. Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994). Here, Petitioner filed his remedy requests [on claims 1, 2, 4, 5, 9 and 10] with the Warden (F1), and being dissatisfied with the Warden's responses, filed his appeals to the Regional Director (R-1) [which were denied]. Petitioner's appeals to the General Counsel's Office (A1) were rejected because they were deficient. Because Petitioner failed to correct the deficiencies and re-submit his appeals to the General Counsel's Office, he abandoned his administrative remedies [on these claims] before completing the process.

Doc. 20 at 12-13. As to grounds 3, 6, 7, 8, 11, 12 and 13, the respondent asserts these claims “are raised in the petition for the first time and are not properly before the Court since Petitioner failed to raise these grounds at the administrative remedy level beginning with the Warden.” Doc. 20 at 12.

         II. RDAP

         Juliana Dodd, the Chief Psychologist at Maxwell who provides oversight and guidance to the facility's treatment programs, including RDAP, addresses the purpose of RDAP and Morrison's participation in the program as follows:

Larry Morrison, federal register number 43820-112, is an inmate currently incarcerated at FPC Montgomery. Petitioner was convicted of violating 21 U.S.C. § 846 & 841(b)(1)(A), for conspiracy to possess with intent to distribute methamphetamine. He was sentenced on October 7, 2008, in the U.S. District Court for the Western District of North Carolina to 210 months of imprisonment in a federal institution to be followed by 5 years of supervised release. His current release date from BOP custody via good conduct time release is November 25, 2018.
I am familiar with inmate Larry Morrison and his allegations regarding the RDAP at the FPC Montgomery. In preparing this declaration, I have reviewed inmate Morrison's complaint, his records, and relevant BOP policies and regulations.
The purpose of the BOP's drug abuse programs is to inform inmates of the consequences of drug/alcohol abuse and addiction, and motivate inmates to apply for drug abuse treatment both while incarcerated and after release.
Only inmates who complete RDAP are eligible for consideration of up to 12 months off their sentence provided by 18 U.S.C. § 3621(e). In order to successfully complete the RDAP, an inmate must complete the three components: Unit-based component, Follow-up services, and Transitional Drug Abuse Treatment. The Unit-based component lasts for 9-12 months and requires a minimum of 500 hours. The Follow-up services component is the time between completion of the Unit-based component and transfer to a community-based program. The length of this portion is variable. The Transitional Drug Abuse Treatment component is community based treatment that ordinarily begins upon the inmate's transition to a Residential Re-entry Center (RRC). Inmates may voluntarily withdraw from the program at any time.

         All BOP RDAPs are organized in 3 unit-based treatment phases:

a. Phase I - The Orientation Phase, where a thorough psychosocial assessment is done by the participant's primary treatment specialist in the interest of developing a treatment plan. Ordinarily this phase should not last longer than two months;
b. Phase II - The Core Treatment Phase, where the inmate is expected to build positive relationships in group (sessions), in the treatment unit, with family/significant others, with staff, etc. Within this phase, treatment staff monitor[s] the participant's behavior, personal insights, motivation, and commitment to treatment daily to determine if the inmate's behavior in the program is consistent with his or her behavior throughout the institution. Ordinarily this phase will last no longer than five months;
c. Phase III - The Transition Phase, where the focus is on the inmate practice of pro-social skills acquired in treatment while developing realistic expectations for exiting the program. Participants are not to complete the program until they have mastered the expected behaviors of Phase III. Ordinarily, this phase will last no more than two months.
According to inmate Morrison's RDAP records, on November 30, 2015, he underwent a diagnostic interview for RDAP participation where he was diagnosed with cocaine use disorder-severe. On December 1, 2015, he signed an agreement to participate in the RDAP. He was enrolled in the RDAP on December 16, 2015.
Inmate Morrison's RDAP records indicate a pattern of limited progress, low commitment toward integrating and practicing prosocial values, and poor treatment compliance with expected behaviors as a member of the therapeutic community.
On January 12, 2016, during inmate Morrison's initial Clinical Team Treatment Review he reported that “when he does not get his way he internalizes his anger and thinks of ways to retaliate against others.” Inmate Morrison later openly admitted that his desired way to retaliate is to file administrative remedy claims against those who oppose his wishes. In the same Clinical Contact, he reported that he understood his decision to file claims is usually “done to get back at staff members and [it] is unhealthy for him to continue engaging in such behaviors.” The treatment team advocated that inmate Morison work with his mentor and associated senior RDAP inmates as well as treatment staff to help him manage his anger better so that he would not reach the impulse to retaliate.
It should be noted that the “mentor” is an inmate. So, consistent with the RDAP's Modified Therapeutic Community model, inmate Morrison was provided other recovery-focused inmates with whom to consult. This was not to “chill” him from filing administrative remedy requests, but to provide a means for him to ensure that he was not filing to “get back at staff” rather than based upon some real issue.
On March 8, 2016, inmate Morrison received his Clinical Treatment Team Review of his readiness to transition to Phase II - the Core Phase. It was noted by BOP RDAP staff that he continues to struggle with employing healthy coping mechanisms and skills, and resorts to manipulation as his primary method of coping with events or actions he does not like. Ultimately, inmate Morrison's progress at the time was deemed acceptable for him to move forward to Phase II - Core Phase.
On April 4, 2016, inmate Morrison was “pulled up, ” a common treatment event that occurs during daily Community Meetings when an inmate is held accountable for unhealthy or disruptive behavior by other members (other inmates). On this date, inmate Morrison was held accountable for putting down another community peer. Inmate Morrison was held accountable because he engaged in conversation in which he used homophobic slurs against other community peers. Inmate Morrison then apologized for his actions and took ownership of his disruptive behavior.
On April 5, 2016, two relevant encounters occurred with Inmate Morrison. During the first, he met with his primary Drug Treatment Specialist (DTS) and retracted ownership of his admitted [disruptive] behavior on April 4, 2016. Inmate Morrison stated that his homophobic language was taken out of context and that he disagreed with the DAPC and the community meeting. He further stated that he wanted an apology from the DAPC. However, the DAPC noted that she did not make or use any derogatory comments toward or about Mr. Morrison to him or anyone else during this or any other discussion. The second encounter on this date occurred after inmate Morrison refused to take ownership of the unhealthy behavior, which occurred when he refused an order from staff during the Clinical Treatment Team Review to attend a Parenting seminar.
On August 22, 2016, inmate Morrison was held accountable in the daily Community Meeting by a participant (another inmate) for not being receptive to a peer's feedback. The participant (inmate) noticed inmate Morrison appeared to be out of uniform because he had a colorful piece of material in his pocket. The inmate then started a conversation about it with inmate Morrison who replied that the colorful square was a part of his religion and was approved. The other inmate suggested that inmate Morrison tell the RDAP group that the colorful material was allowed under the religious exemption. Mr. Morrison mistook this as a directive to explain his religion to the group and took offense, despite other BOP RDAP staff stating that was not the intention of the exercise. However, inmate Morrison chose not to take ownership for his reported negative behavior of not being receptive to feedback and requested further staff intervention.
In response to inmate Morrison's request for staff intervention, the issue was examined in a Clinical Treatment Team Review meeting on August 23, 2016. It should also be noted that based upon the concerns inmate Morrison raised of religious discrimination, the DAPC suspended the meeting and sought clarification from Religious Services as to whether or not addressing [the] religious item in his pocket would be considered an offensive behavior. The Supervisory Chaplain stated that while many Santeria inmates may carry such religious items (photos), . . . the religious items (photos/icons) are considered private items typically not openly addressed with others. However, by wearing the religious item (photo) in his pocket outward, where it was visible to others, inmate Morrison was no longer keeping the item private and made it subject to discussion and consideration by others.
The DAPC also consulted with me, as Chief Psychologist, regarding how to best address recovery-focused behaviors. Together we concluded that the treatment issue of inmate Morrison demonstrating a lack of open-mindedness and unreceptivity remained, and that these were appropriate to address within the context of his addiction treatment.
On August 29, 2016, the RDAP Treatment Team recommended a treatment amendment known as a “Formal Warning”, which is a notification to the inmate that he or she is demonstrating a[] significantly unhealthy pattern of behaviors. The Clinical Treatment Team further discussed inmate Morrison's unhealthy behaviors and how they were interfering with his treatment progress, assigned other treatment interventions chosen to reduce the unhealthy behaviors and improve progress, and advised inmate Morrison of the team's expectations as well as consequences for failure to alter his behavior.
The Formal Warning document noted that inmate Morrison would be reviewed by the Treatment Team again in approximately 30-days to assess his progress. Contrary to inmate Morrison's assertions in this suit, the review did not have to occur in EXACTLY 30 days. There was no set number of days as in the disciplinary process, as this is part of a treatment planning process not a disciplinary process. On September 27, 2016 (28 days after the Formal Warning), inmate Morrison was seen by the Clinical Treatment Team for review of his progress in addressing the treatment goals established in his Formal Warning dated August 29, 2016. He elected to have an inmate in the Follow-Up level present as a positive peer. It was determined that Petitioner had not fulfilled the goals of his treatment amendments in that he continued to show failure to (and overt resistance toward) integrating constructive feedback provided by others. Further, he had not been following through on commitments made to others to demonstrate changes consistent with his treatment plan and addendum goals.
Based upon inmate Morrison's demonstrated insufficient change regarding treatment goals and the problem areas previously identified, the Clinical Treatment Team concluded inmate Morrison was not ready for RDAP completion and that a return to Core Phase would be most beneficial to Petitioner to help him build skills in more effectively using Rational Self-Analysis and Rational Self-Counseling. Remediation opportunities were offered and discussed as a means of helping inmate Morrison achieve the progress required to complete RDAP. Options for continuing treatment or discontinuing treatment if he desired (voluntary nature of the program) were explained. At that time, inmate Morrison expressed willingness to continue in treatment. He was advised that he would be notified of which segment of the RDAP he would need to focus on for remediation by no later than the next morning.
Inmate Morrison was not “rolled back 7 months” in the RDAP. Rather, as was explained to him by the Clinical Treatment Team, the focus of the remediation period would be for him to achieve consistent mastery of treatment concepts (e.g., effective application the Rational Self-Analysis). After completing the module that would allow him to build his mastery he (inmate Morrison) would be reevaluated by the Treatment Team and could move forward at that time from the previous treatment stage (Transition phase). Thus, he was not sent back to the beginning of the program (this is the 7 month “roll back” to which he refers). At the time of his withdrawal, the Treatment team had not determined what core phase module inmate Morrison should revisit.
On September 28, 2016, Inmate Morrison reported to his Primary Treatment Specialist that he desired to withdraw from the treatment program. He signed the “Notice of Change in RDAP and 362l(e) status” form (BP-767) and was referred to the unit team for change in unit assignment.
Inmate Morrison expressed verbally and in writing that he wished to withdraw from the program. Because he did not successfully complete the RDAP, he is no longer eligible to receive the benefit of the sentence reduction incentive.
Policy allows an inmate who has withdrawn from RDAP to apply for admission to the non-residential drug abuse program, or re-apply for admission to the RDAP after 90 days through an Inmate Request to Staff form to the DAPC. As of the date of this declaration, inmate Morrison has not attempted to re-apply for admission to the RDAP and has not applied for admission to the non-residential drug abuse program.
Policy also allows inmates to seek formal review of their complaints regarding the operation of the drug abuse treatment program by using the BOP's administrative remedy procedures.

Doc. 20-4 at 2-8 (paragraph numbering and citations to attachments omitted).

         In a supplemental declaration, Ms. Dodd addresses additional arguments set forth by Morrison after submission ...


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