Abdel-Rahman v. FCI Berlin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Samih Abdel-Rahman
v. Civil No. 22-cv-333-SM
Warden, FCI Berlin
Report and Recommendation
Samih Abdel-Rahman, who is proceeding pro se, is
incarcerated at the Federal Correctional Institution in Berlin,
New Hampshire (“FCI Berlin”). He filed a petition pursuant to 28
U.S.C. § 2241, challenging the decision of the Bureau of Prisons
(“BOP”) denying him release to home confinement under the
Coronavirus Aid, Relief, and Economic Security Act (“CARES
Act”). The warden moves to dismiss the petition, see Doc. No. 6,
and that motion has been referred to the undersigned Magistrate
Judge for a Report and Recommendation (“R&R”) as to disposition.
Standard of Review
In deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court takes “the complaint’s well-
pleaded facts as true, and [draws] all reasonable inferences in
[the plaintiff’s] favor.” Lowe v. Mills, 68 F.4th 706, 713 (1st
Cir. 2023) (internal quotation marks and citations omitted). The
court considers the factual allegations in the complaint and the
exhibits attached to the complaint. Id. The court then
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determines whether the complaint states a claim upon which
relief might be granted. Id.
Background
Based on the documents Mr. Abdel-Rahman filed with his
petition, in July 2021 he requested release to home confinement
under the CARES Act. The warden denied his request on August 10,
2021, writing that Mr. Abdel Rahman had an active detainer
against him from Immigration and Customs Enforcement (“ICE”),
that he had served less than half of his sentence, and that he
did not have health conditions that put him at serious risk due
to COVID-19 infection. Mr. Abdel-Rahman resubmitted his request,
and again his request was denied.
Mr. Abdel-Rahman appealed the denial of his request to the
BOP’s Northeast Regional Office. In his appeal, he stated that
he had health issues that put him at increased risk of
complications from COVID-19, that he had then served more than
half of his sentence, and that he was in the process of having
the ICE detainer removed. Mr. Abdel-Rahman’s appeal to the
Northeast Regional Office was denied.
Discussion
Mr. Abdel-Rahman petitions the court pursuant to § 2241 to
order, under the CARES Act, that he serve the remainder of his
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sentence in home confinement. The CARES Act authorizes the BOP
Director “to place a prisoner in home confinement for the
shorter of 10 percent of the term of imprisonment of that
prisoner or 6 months.” 18 U.S.C. § 3624(c)(2). “[T]he decision
to place a prisoner in home confinement under the CARES Act lies
within the sole discretion of the BOP, and is not reviewable by
[the U.S. District] Court.” Peters v. Boncher, No. CIVIL ACTION
NO. 22-11503-JGD, 2023 U.S. Dist. LEXIS 12526, at *8, 2023 WL
387612, at *4 (D. Mass. Jan. 25, 2023) (collecting cases); see
also Tetterton v. Warden, FCI Fort Dix, Civil Action No. 23-1394
(CPO), 2023 U.S. Dist. LEXIS 104888, at *5-*7, 2023 WL 4045086,
at *2-*3 (D.N.J. June 16, 2023) (citing and discussing cases).
For that reason, the court lacks authority under the CARES Act
to grant Mr. Abdel-Rahman’s petition.1
1 Even assuming, without deciding, that this Court could
review Mr. Abdel-Rahman’s petition to determine whether the BOP
had abused its discretion in denying him relief, his challenge
would lack merit. See Hussain v. Warden Allenwood FCI, No. 22-
1604, 2023 U.S. App. LEXIS 7203, at *4-*7, 2023 WL 2643619, at
*2-*3 (3d Cir. Mar. 27, 2023) (finding that claim in § 2241
petition that the BOP abused its discretion by denying CARES Act
relief to the petitioner because he was subject to an ICE
detainer was without merit). To the extent Mr. Abdel-Rahman may
have intended to request relief under 18 U.S.C. § 3582(c), this
court lacks jurisdiction to consider that request under § 2241,
as such a request must be filed in the sentencing court. See
Peters, 2023 U.S. Dist. LEXIS 12526, at *8-*9, 2023 WL 387612,
at *4.
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Conclusion
For the foregoing reasons, the district court judge should
grant the warden’s motion to dismiss (doc. no. 6) Mr. Abdel-
Rahman’s petition (doc. no. 1) and direct the clerk’s office to
enter judgment and close the case. Any objections to this
R&R 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 to this R&R 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).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 6, 2023
cc: Samih Abdel-Rahman, pro se
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