Charles F. Murray v. J. GRONDOLSKY, Warden

ALD-109 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3986
___________
CHARLES F. MURRAY,
Appellant
v.
J. GRONDOLSKY, Warden; J. KNOX, Unit Manager;
J. ORDONEZ, Case Manager; L. BATISTE, Correctional Counselor
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:09-cv-03183)
District Judge: Honorable Joseph E. Irenas
____________________________________
Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 28, 2010
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed: February 18, 2010)
_________
OPINION
_________
PER CURIAM
Charles Murray, proceeding pro se, appeals from the District Court’s orders
dismissing his case and denying his motion for reconsideration, respectively. Because the
appeal does not present a substantial question, we will summarily affirm the District

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When presented with the form, Murray attempted to challenge the provision by1
amending the language to state that he would only make payments “when authorized
under statutory law or code of federal regulations.” The BOP thereafter charged and
sanctioned Murray with forgery and counterfeit of an official document. As a result of
this incident, Murray filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241. In
this complaint, which is currently pending in the District of New Jersey, Murray has
asked the District Court to order the BOP to reverse its findings of forgery and to restore
all privileges that were lost as sanctions. See D.N.J. 1:09-cv-4347.
2
Court’s orders. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In June 2009, Murray filed a pro se petition under 28 U.S.C. § 1361 for a writ of
mandamus in the District of New Jersey, seeking an order to compel federal prison
officials to authorize his pre-release transfer to a Residential Re-Entry Center (“RRC”).
In his complaint, Murray alleged that while he had been approved for a pre-release
transfer to an RRC, he was informed that the transfer was dependent upon his executing a
Community Based Agreement Form. This form includes a provision that Murray would
agree to make payments to contribute to the cost of the residence. Murray challenged that
term of the agreement, asserting that all expenses attendant to his incarceration must be
paid out of the United States Treasury, pursuant to 18 U.S.C. § 4007, and that he is
exempt from paying any cost of incarceration fee, pursuant to 28 C.F.R. § 505.3. Murray
also argued that his failure to exhaust administrative remedies prior to filing the
complaint should be excused, as exhaustion would be “an exercise in futility” and the
time lost during the administrative appeal process would be highly prejudicial.1

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3
The District Court interpreted Murray’s petition for a writ of mandamus as a
petition for a writ of habeas corpus under 28 U.S.C. § 2241. On July 10, 2009, the
District Court dismissed Murray’s petition sua sponte for failure to exhaust administrative
remedies. The District Court also found that, to the extent failure to exhaust could be
excused, Murray’s petition is without merit because the Bureau of Prisons (“BOP”) acted
within its statutory authority in conditioning pre-release transfer upon execution of a
Community Based Program Agreement. On September 28, 2009, the District Court
denied Murray’s motion for reconsideration. Murray now appeals to this Court from the
District Court’s July 10 and September 28 orders.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise
plenary review over the District Court’s dismissal. See Stehney v. Perry, 101 F.3d 925,
929 (3d Cir. 1996); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n.3 (3d Cir.
2005). We generally review a district court’s decision on a motion for reconsideration for
abuse of discretion. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 673 (3d Cir. 1999). Summary action is warranted when no substantial question is
presented on appeal. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
Murray filed his petition for a writ of mandamus pursuant to 28 U.S.C. § 1361. A
district court has jurisdiction over mandamus actions “to compel an officer or employee
of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28

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We note that the District Court treated Murray’s petition as a petition for writ of2
habeas corpus instead of a petition for mandamus. This Court has held that a habeas
petition pursuant to 28 U.S.C. § 2241 is the appropriate way to challenge BOP regulations
(including placement in a community correction center or halfway house) because what is
at issue is the “execution” of the prisoner’s sentence and not the “conditions” of his
confinement. See Woodall, 432 F.3d at 241-44. Regardless, we agree with the District
Court in its September 28 order that Murray’s petition is meritless whether it is construed
as arising under § 2241 or § 1631. 4
U.S.C. § 1361. Mandamus relief is to be issued only in extraordinary circumstances,
where the petitioner demonstrates that he has no alternative means to achieve the relief
sought, and that he has a clear and indisputable right to the writ. See Stehney, 101 F.3d at
934 & n.6.
We agree with the District Court that Murray has failed to establish that he has a
clear and indisputable right to pre-release placement in an RRC without participating in
the subsistence program. The BOP is authorized to collect a subsistence fee from a2
federal prisoner for the costs of his confinement in community corrections centers,
including RRC’s. The subsistence program, which requires inmates to pay a portion of
the cost of the RRC, is a condition of placement in the RRC imposed to encourage
financial responsibility in order that inmates may reintegrate into society. The subsistence
program arises from BOP policy and emanates from the BOP’s general statutory authority
to manage the prisons. See 18 U.S.C. §§ 4042(a), 3624(c)(1).
Accordingly, we will summarily affirm the District Court’s orders dismissing the
complaint and denying Murray’s motion for reconsideration.

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