The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
Plaintiff Christopher Boultinghouse brings this pro se action against Harley G. Lappin in his official capacity as Director of the Federal Bureau of Prisons ("BOP"). Plaintiff alleges that the BOP's reliance on 28 C.F.R. § 550.58(a)(1)(vi)(B) (2000)1 to bar his eligibility for early
1 The pertinent parts of 28 C.F.R. § 550.58 (2000) provide as follows:
An inmate who was sentenced to a term of imprisonment pursuant to the provisions of 18 U.S.C. Chapter 227, Subchapter D for a nonviolent offense, and who is determined to have a substance abuse problem, and successfully completes a residential drug abuse treatment program during his or her current commitment may be eligible, in accordance with paragraph (a) of this section, for early release by a period not to exceed 12 months.
(a) Additional early release criteria.
(1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release: . . .
(vi) Inmates whose current offense is a felony: . . .
(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device). release under 18 U.S.C. § 3621(e) (2006)2 violates the Administrative Procedure Act, 5 U.S.C. §§ 701--706 (2006) ("APA"). Compl. ¶ 1. Defendant has moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Because plaintiff's exclusive remedy in this case sounds in habeas and his claim lacks sufficient merit to warrant a transfer, the Court will grant defendant's motion to dismiss.
In 2006, plaintiff pled guilty in federal court to two counts of possessing a firearm after being convicted of a felony in violation of 18 U.S.C. § 922(g). Compl. ¶ 17. He was sentenced to two concurrent seventy-seven month terms of incarceration. Id. After serving approximately five years of his sentence, the BOP drug coordinator determined that plaintiff was eligible to participate in a drug rehabilitation program called RDAP. Id. at 18. At the same meeting, however, it was determined that plaintiff was not eligible for early release under 18 U.S.C. § 1362(e), id., which gives the BOP discretion to reduce an inmate's sentence by up to twelve months if the inmate is a nonviolent offender and successfully completes a drug rehabilitative program. § 3621(e)(2)(B). The decision was based on 28 C.F.R. § 550.58, see Compl. Ex. 1, which allows the BOP to withhold consideration for early release if an inmate's offense "involved the carrying, possession, or use of a firearm." § 550.58(a)(1)(vi)(B).
Subsequently, plaintiff filed a Regional Administrative Remedy Appeal, arguing that the BOP "violated the APA and therefore erred in denying [his] request for early release upon successful completion of RDAP." Compl. Ex. 1. The reviewing regional director denied the
2 18 U.S.C. § 3621(e)(2)(B) provides:
Period of custody. -- The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.
appeal, explaining that the BOP acted within its discretion and in accordance with its policy. Id. Plaintiff appealed the reviewing director's decision, resulting in the instant action.
In support of his claim, plaintiff argues that the BOP relied on factors Congress did not intend to be considered, the BOP offered an explanation for using those factors that runs counter to the evidence before it, and the BOP's explanation was so implausible that it could not be ascribed to the product of agency expertise. Compl. ¶¶ 21--23. Plaintiff also asserts that defendant admitted that section 550.58 violated the APA when defendant replaced section 550.58 with a new "final rule."3 Id. ¶ 24. Plaintiff seeks an injunction that sets aside section 550.58 as violating both the APA and the plain language of section 3621. Id. ¶ 67. He also ...