Powers v. Federal Bureau of Prisons

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Powers
v. Civil No. 23-cv-173-JL
Federal Bureau of Prisons
REPORT AND RECOMMENDATION
Pro se plaintiff John Powers, appearing in forma pauperis,
has sued the Federal Bureau of Prisons (“BOP”). Mr. Powers
alleges that BOP failed to provide him with certain funds,
clothing and transportation to which he was entitled upon his
release from BOP custody in 2021. Mr. Powers’ complaint (Doc.
No. 1) is before the court for preliminary review. See 28
U.S.C. § 1915(e); LR 4.3(d)(2).1
Preliminary Review Standard
This court subjects complaints filed in forma pauperis to
preliminary review under LR 4.3(d)(2) and may dismiss complaints
that are frivolous or malicious, fail to state a claim upon
which relief can be granted, or seek damages from defendants who
are immune from such relief. See id.; see also 28 U.S.C.
1This suit was originally filed in the United States
District Court for the Northern District of California, and
subsequently transferred to this District. See Order of
Transfer (Doc. No. 7).
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§ 1915(e)(2). The court construes pro se complaints liberally
in conducting preliminary review. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). Disregarding any legal conclusions, the
court considers whether the factual content in the complaint and
inferences reasonably drawn therefrom, taken as true, state a
facially plausible claim to relief. Hernandez-Cuevas v. Taylor,
723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
Factual Background
After thirty-three years of BOP custody, Mr. Powers was
released on September 30, 2021. Mr. Powers alleges that, upon
his release, BOP failed to provide him with either a “statutory
gratuity” of $500 or “statutory travel fees and/or
reimbursement” for travel from Dover, New Hampshire to Mountain
View California. Compl. (Doc. No. 1) at 1-2.
Legal Analysis
Pursuant to 18 U.S.C. § 3624(d), “[u]pon the release of a
prisoner . . . the [BOP] shall furnish the prisoner with -
(1) suitable clothing;
(2) an amount of money, not more than $500, determined
by the Director to be consistent with the needs of the
offender and the public interest, unless the Director
determines that the financial position of the offender
is such that no sum should be furnished; and
(3) transportation to the place of the prisoner's
conviction, to the prisoner's bona fide residence
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within the United States, or to such other place
within the United States as may be authorized by the
Director.
The BOP, in turn, promulgated several regulations
implementing the statute. 28 C.F.R. § 571.20, titled
“Purpose and Scope,” provides as follows:
It is the policy of the Bureau of Prisons that an
inmate being released to the community will have
suitable clothing, transportation to the inmate's
release destination, and some funds to use until he or
she begins to receive income. Based on the inmates
need and financial resources, a discretionary gratuity
up to the amount permitted by statute may be granted.
Next, 28 C.F.R. § 571.21, “Procedures,” provides in
relevant part:
(a) An inmate is eligible for a gratuity as determined
by the availability of personal and community
resources. Greater consideration may be given to an
inmate without funds or community resources.
(b) A federal prisoner boarded in a non-federal
facility is eligible for a release gratuity. The
director of the non-federal facility housing federal
inmates or the community corrections manager shall
determine the amount of release gratuity in accordance
with the purpose and scope of this regulation for
federal inmates housed in non-federal facilities.
Finally, 28 C.F.R. § 571.22 provides that:
(a) Staff shall provide release clothing appropriate
for the time of year and the inmate's geographical
destination. Upon request, work clothing will be
provided. Nonavailability of work clothing may limit
this practice.
(b) Inmates transferring to a community corrections
center will be provided adequate clothing to complete
a job search and perform work. Additionally, an outer
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garment, seasonably suited for the geographical
destination will be provided.
(c) Transportation will be provided to an inmate's
place of conviction or to his/her legal residence
within the United States or its territories.
As Mr. Powers alleges that he was provided with neither
money nor transportation, the court will focus subsections (2)
and (3) of section 3624. The court addresses these provisions
separately.
A. Claim 1 -- Gratuity
Mr. Powers’ first claim is that the BOP did not provide him
with a $500 gratuity, as delineated in 18 U.S.C. § 3624(d)(2).
Based on the language of the statute and regulations, as well as
cases interpreting both, Mr. Powers has no right to the
statutory maximum amount, nor any gratuity at all. The
statutory language governing these gratuities is clear. The
statute notes that $500 is the maximum sum which a prisoner may
be given, but also permits a “determin[ation} that no sum should
be furnished.” Id. § 3624(d)(2). The statute leaves the amount
of the gratuity to be “determined by the Director to be
consistent with the needs of the offender and the public
interest.” Id. Likewise, the BOP regulation implementing the
statute refers to the “funds” as “a discretionary gratuity.” 28
C.F.R. §§ 571.20; 571.21(a).
Construing the statute and regulations, courts have
routinely rejected claims based on an entitlement to a gratuity
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under § 3624(d). See Tong v. United States Fed. Bureau of
Prisons, No. 3:22-CV-1241-E-BN, 2022 WL 18779751, at *1 (N.D.
Tex. June 27, 2022) (“Accordingly, there is no question that the
decision for each out-going prisoner is discretionary, must be
made by the BOP, must be independently set for each prisoner,
and can be any amount up to the $500 maximum.”), report and
recommendation adopted, No. 3:22-CV-01241-E-BH, 2023 WL 2090985
(Feb. 17, 2023); McGuire v. Hudgins, No. 5:20-CV-8, 2020 WL
5415253, at *2–3 (N.D. W. Va. Aug. 6, 2020), report and
recommendation adopted, No. 5:20-CV-8, 2020 WL 5414565 (Sept. 9,
2020) (same); McIntire v. Willis, No. 4:14-CV-04108-RAL, 2015 WL
1275430, at *3 (D.S.D. Mar. 19, 2015) (concluding, in Bivens
claim seeking $500 gratuity, rather than the $100 given, that
statute and regulations “do not restrict the BOP's discretion”
as to the existence or size of a gratuity); Smith v. United
States, No. 4:10-CV-47-M, 2011 WL 2670235, at *4 (W.D. Ky. July
7, 2011) (granting defendant’s motion for summary judgment after
finding that “[p]laintiff had no right to a release gratuity.”);
Larson v. United States, No. CIV.A. 09-CV-074-KKC, 2009 WL
2382371, at *7 (E.D. Ky. July 30, 2009) (dismissing claim for
gratuity for failure to state a claim) (citing Mose v. Baney,
No. CIVA RWT-05-1148, 2005 WL 4898861 at *2 (D. Md. Nov. 1,
2005) (holding that size of release gratuity “does not violate
statutory or constitutional dictates”) aff'd, 180 F. App’x 469
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(4th Cir. 2005)); Kenan v. Francis, No. 2:05CV76, 2006 WL
3900109, at *5 (N.D. W. Va. June 13, 2006) (“Contrary to his own
beliefs, petitioner is not entitled to a release gratuity under
§ 571.20. Release gratuities are solely within the discretion of
the BOP, and the BOP has exercised its discretion in this
case.”); Palmer v. Fed. Bureau of Prisons, No. CV 05–1907–MO,
2006 WL 533511, at *2 (D. Ore. Mar. 2, 2006) (“It is clear from
the language of the regulation cited by plaintiff that the
Bureau of Prisons is not required to award gate money to
departing inmates because the gate money is ‘a discretionary
gratuity.’”).
Accordingly, the district judge should dismiss claim 1. Mr.
Powers is no legal right to the gratuity outlined in 18 U.S.C. §
3624.
B. Claim 2 – Transportation
Mr. Powers next alleges that BOP failed to provide his with
travel expenses or reimbursement for travel to Mountain View,
CA, after his release from custody. As noted above, 18 U.S.C. §
3624(d)(3), states that the BOP “shall . . . provide
transportation” to the place of conviction, the prisoner’s
residence, or “to such other place . . . as the Director
authorizes. Unlike § 3624(d)(2), concerning gratuities, there
is no language in this subsection or the relevant regulation
that permits a complete denial of transportation. See 28 CFR §
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571.22(c) (“Transportation will be provided . . . .”); cf.
United States v. Hartshorn, 163 F. App'x 325, 329–30 (5th Cir.
2006) (“[T]he BOP is bound by [that] statute to select the place
where the prisoner is to be released” and “has full discretion
to determine the location of [the] prisoner's release.”); Smith
v. Wrigley, No. 106CV0886AWIWMWHC, 2008 WL 2490438, at *2 (E.D.
Cal. June 16, 2008) (rejecting transportation claim because
plaintiff “was offered transportation in compliance with the
applicable statute, which he declined.”), report and
recommendation adopted, No. 1:06CV0886AWIWMWHC, 2008 WL 2941162
(July 28, 2008)
As Mr. Powers has alleged that he was completely denied
transportation or reimbursement, he has pleaded sufficient facts
to allow a claim under 18 U.S.C. § 3624(d)(3) to proceed. By
separate order, the court will direct service of this claim on
the BOP.
Conclusion
For the foregoing reasons, the district judge should
dismiss claim 1 of the complaint.2 The case will proceed on
2The complaint suggests that Mr. Powers is bringing this
claim under the Federal Tort claims Act (“FTCA”). 28 U.S.C. §
2671 et seq. The proper defendant in an FTCA claim is the United
States. See Nievees-Romero v. United States, 715 F.3d 375, 378
n.2 (1st Cir. 2013). If Mr. Powers wishes to proceed against
the United States, he should move to amend his complaint to that
effect. But see McIntire, supra, 2015 WL 1275430, at *1
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claim 2, as described herein. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day
period may be extended upon motion. Only those issues raised in
the objection(s) to this Report and Recommendation are subject
to review in the district court. See Sch. Union No. 37 v.
United Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any
issues not preserved by such objection(s) are precluded on
appeal. See id. Failure to file any objections within the
specified time waives the right to appeal the district court's
order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 29, 2023
cc: John Powers, pro se
(addressing gratuity claim as brought under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
395–96 (1971).
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