Harry Douvos v. Francisco Quintana, Warden

CLD-068 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3449
HARRY DOUVOS,
Appellant
v.
FRANCISCO QUINTANA, WARDEN; DR. KENT CANNON,
RESIDENTIAL DRUG ABUSE PROGRAM COORDINATOR
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 09-cv-00159)
District Judge: Honorable Sean J. McLaughlin
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 10, 2009
Before: Barry, Fisher and Van Antwerpen, Circuit Judges
(Opinion filed: December 29, 2009)
OPINION
PER CURIAM
Appellant Harry Douvos, a federal prisoner incarcerated at the Federal

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Specifically, all authorized ceramic products must be non-toxic, non-flammable, and1
contain no health or warning labels. Douvos’s locker contained two jars of Mayco,
Jungle Gems Crystal Glaze and one jar of Duncan SY 554 Antique Bronze Specialty
Product, both of which have a high lead content and health caution labels on them, one jar
of Amaco Crystaltex Liquid Glaze, which carries a caution label for its high copper
content, and one bottle of Magic Mender, a skin and eye irritant that is harmful or fatal if
swallowed.
2
Correctional Institution at McKean in Bradford, Pennsylvania, is serving a sentence of 60
months imprisonment imposed by the United States District Court for the Eastern District
of Virginia at D.C. Crim. No. 3:06-cr-00337-1. His projected release date is December
10, 2010. Douvos began participating in the Residential Drug Abuse Program (RDAP”),
see 18 U.S.C. § 3621(e), at FCI-McKean on August 21, 2008. The RDAP gives the
Bureau of Prisons the discretion to alter a prisoner’s conditions of confinement or allow
him a sentence reduction of up to one year if he successfully completes the program and
his conviction was for a nonviolent offense. See id. at § 3621(e)(2)(B). On May 17,
2009, Douvos was issued a misconduct, which, although not serious in itself, had serious
implications for his continued participation in the RDAP.
According to the Incident Report, on May 17, 2009, a recreation specialist
searched Douvos’s hobby craft assigned locker and discovered ceramic products he was
not allowed to possess. Douvos was issued a Code 305 misconduct for possession of1
anything not authorized for retention or receipt by the inmate, and not issued to him
through regular channels. He had a Unit Discipline Committee (“UDC”) hearing at
which he admitted that he had retained the items when he discovered them in his locker.

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Douvos does not object to the BOP’s apparent policy of maximizing time spent in a2
halfway house even when such maximization would decrease the maximum sentence
reduction under section 3621(e)(2)(B).
Douvos wanted to establish that the items in his locker could be or had been3
purchased by prisoners through normal channels and thus were not prohibited.
3
Based on this admission, Douvos was adjudicated guilty of the prohibited act and
sanctioned to “hobby craft program removal.” Warden Francisco J. Quintana denied
Douvos’s request for an administrative remedy on June 8, 2009.
Unfortunately for Douvos, this misconduct resulted in a fourth Drug Abuse
Program (“DAP”) warning, and four DAP warnings in his case constituted grounds for
expulsion from the RDAP. On May 27, 2009, Douvos was expelled three classes short of
completing the program. As a result of not completing the program, Douvos did not get
the eleven-month and one week reduction in his sentence he would have earned had he
successfully completed the program, nor did he get the six-month halfway house
placement that had been scheduled to begin on June 16, 2009.2
On or about June 29, 2009, Douvos submitted for filing a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in United States District Court for the
Western District of Pennsylvania (which eventually was filed on the docket on July 23,
2009), and a motion for a preliminary injunction seeking an expedited telephone hearing
and reinstatement in the RDAP. Claiming a violation of his constitutional right to due
process in that he was not allowed to present witnesses or documentary evidence at his
UDC hearing, Douvos sought expungement of the May 17, 2009 Incident Report. In the3

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alternative, he asked to be allowed to repeat phase three of the RDAP. In addition to
seeking expungement of the Incident Report (which expungement would automatically
render the fourth DAP warning void), Douvos also claimed that the second and third DAP
warnings – for falling asleep in class – were unlawfully obtained because of his amply-
documented Sleep Apnea disability. He further contended that Program Statement
5330.11 does not require expulsion after four DAP warnings, and he identified two fellow
prisoners who had been allowed to graduate from the program with more than four DAP
warnings.
On July 17, 2009, the Magistrate Judge held a telephone conference in her
chambers on the motion for a preliminary injunction with Douvos and two assistant
United States Attorneys participating on behalf of the Bureau of Prisons. A court reporter
was present. Douvos explained the nature of his complaint, and the Magistrate Judge
questioned counsel for the BOP as to why Douvos was not permitted to call witnesses at
his hearing. Counsel explained that, because the Incident Report was minor – that is, loss
of good time credit was not among the possible sanctions – Douvos’s misconduct was
adjudicated through the Unit Discipline Committee rather than by a Disciplinary Hearing
Officer. See N.T., 7/17/09, at 3-4. Witnesses are not permitted at a UDC hearing. See
id. at 4.
The Magistrate Judge then asked BOP counsel if the rules and regulations permit a
prisoner to be expelled from the RDAP for a misconduct and counsel answered that

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Douvos’s RDAP agreement, which he signed, plainly stated that expulsion can result
from an incident report. See id. at 6-7. Furthermore, the RDAP rules provide that, after a
certain number of DAP warnings, expulsion will be considered. See id. Douvos had
notice from the three prior DAP warnings that he could be expelled, and the Incident
Report resulted in a fourth warning. See id. The Magistrate Judge also questioned BOP
counsel about Douvos’s contention that certain identified prisoners with more than four
DAP warnings had recently been allowed to graduate from RDAP, but counsel had not
yet investigated this allegation and could not supply a substantive response to it. See id.
at 10-11. It was noted, however, that all decisions concerning satisfactory completion of
RDAP are made on a case-by-case basis. See id.
The Magistrate Judge stated her Report and Recommendation on the record and
she recommended that the motion for a preliminary injunction be denied because Douvos
failed in his burden to show both a likelihood of success on the merits and irreparable
injury, see Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197 (3d Cir. 1990). She
concluded that the procedural due process protections afforded by Wolff v. McDonnell,
418 U.S. 539 (1974), apply only when a prisoner’s constitutional interests are implicated.
Sandin v. Connor, 515 U.S. 472, 487 (1995). Since Douvos did not have a
constitutionally protected interest in early release or release to a halfway house, he had no
right to present witnesses or documentary evidence before the UDC. His likelihood of
success on the merits was low because the misconduct did not result in a loss of good

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time credits, he had previous DAP warnings, and the decision whether an inmate should
graduate from the RDAP is completely discretionary. See N.T., at 12-15. Douvos could
not show irreparable injury because he has no right to a halfway house placement or early
release. See id. at 15.
In an order entered on August 11, 2009, the District Court approved and adopted
the Report and Recommendation, and, in pertinent part, denied the motion for a
preliminary injunction. Douvos has appealed this order. Our Clerk granted him leave to
appeal in forma pauperis and advised him that his appeal was subject to summary
dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR
27.4 and I.O.P. 10.6. He was invited to submit argument in writing, but he has not done
so.
We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6, because
it clearly appears that no substantial question is presented by this appeal. We have
jurisdiction over the District Court’s interlocutory order denying a preliminary injunction
under 28 U.S.C. 1292(a)(1) (providing for appeals from “[i]nterlocutory orders of the
district courts ... granting, continuing, modifying, refusing or dissolving injunctions....”).
For the District Court to grant an injunction, the moving party must show that he is likely
to succeed on the merits of his petition and that he will suffer irreparable harm if relief is
not granted. Hoxworth, 903 F.2d at 197-98. The District Court also should consider the
possibility of harm to the non-moving party if the injunction is granted, and whether

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granting the injunction is in the public interest. See id. In determining whether the
District Court abused its discretion in denying a preliminary injunction, we review the
court’s underlying factual determinations under a clearly erroneous standard and consider
the court’s determinations on questions of law de novo. Acierno v. New Castle County,
40 F.3d 645, 652-53 (3d Cir. 1994).
The District Court properly denied Douvos’s motion for a preliminary injunction
for the reasons given by the Magistrate Judge. Douvos failed in his burden to show both
a likelihood of success on the merits and irreparable injury. The interests protected by the
Due Process Clause are “generally limited to freedom from restraint which ... imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life. Sandin, 515 U.S. at 484. Douvos is serving a valid sentence, and expulsion
from a rehabilitative program for a violation of its rules and regulations “falls within the
expected perimeters of the sentence imposed by a court of law.” Id.
Moreover, the statute provides: “The period the prisoner 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.” 18 U.S.C. § 3621(e)(2)(B) (emphasis added). Use of the word “may”
suggests that Congress intended to give the BOP some discretion in administering the
statute, even when an inmate has completed the program. Here, Douvos had only a
provisional eligibility for halfway house placement and sentence reduction because he did

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In addition, there is no indication on the record before us that he exhausted his4
administrative remedies with respect to his claim that the second and third DAP warnings
were improper.
8
not complete the program.
Since Douvos made no showing that he has a protected interest under §
3621(e)(2)(B), he had no right to present witnesses or documentary evidence before the
UDC under Sandin, 515 U.S. 472. In addition, nothing in the record suggests that
Douvos will suffer irreparable injury if he is denied early release or release to a halfway
house since he has already served, apparently without serious incident, four years of his
five-year sentence. See Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d
351, 359 (3d Cir. 1980) (risk of irreparable harm means clear showing of immediate
irreparable injury or presently existing actual threat). Accordingly, the preliminary
injunction standard is not met.
We note, however, that federal prisoners are required to exhaust their
administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2241. Moscato v. Federal Bureau of Prisons, 98 F.3d 757 (3d Cir.1996). Douvos noted
in a brief in support of his motion for a preliminary injunction that he had completed the
first round of the administrative process by appealing to the Warden but that his appeal to
the Regional Director remained pending. Our decision affirming the denial of a4
preliminary injunction in this federal habeas corpus action is without prejudice to the
administrative process. BOP counsel indicated at the telephone hearing that she had yet

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to investigate Douvos’s allegation of arbitrariness in the Program Coordinator’s decision
to let some participants graduate from the program with more than four DAP warnings.
Because the case is still in progress, our Opinion affirming the denial of Douvos’s motion
for a preliminary injunction should not be read to express a view on the merits of this
allegation. We decide only that the standard for a preliminary injunction has not been
met.
For the foregoing reasons, we will summarily affirm the order of the District Court
denying appellant’s motion for a preliminary injunction.

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