ALD-015                                         NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ____________

                                No. 12-2720
                               ____________

                        PAUL RENO LIVENGOOD,
                                       Appellant,
                                 v.

          BUREAU OF PRISONS; ARCHIE LONGLEY, WARDEN
               __________________________________

               On Appeal from the United States District Court
                  for the Western District of Pennsylvania
                        (D.C. Civ. No. 11-cv-00019)
                  Magistrate Judge: Susan Paradise Baxter
                 __________________________________

    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
                              October 18, 2012
         Before: SLOVITER, VANASKIE and WEIS, Circuit Judges

                      (Opinion filed: November1, 2012)
                               ____________

                                 OPINION
                               ____________

PER CURIAM.




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      Appellant Paul Livengood, a federal prisoner, appeals the Magistrate Judge’s

order denying his petition for writ of habeas corpus, 28 U.S.C. § 2241.1 For the

reasons that follow, we will summarily affirm.

      Livengood was sentenced on December 3, 2007 in the United States District

Court for the Western District of Pennsylvania to a term of imprisonment of 70

months for violating 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) and

26 U.S.C. § 5861(d) (possession of an unregistered firearm). Because Livengood

does not have a high school diploma, he participated in the Bureau of Prison’s

literacy program in an effort to earn his General Equivalency Degree (“GED”). By

December 2, 2008, he had earned 240 credit hours in the literacy program, and was

making “good progress” and was demonstrating “good effort.” He then took but

did not pass the GED examination. Although the literacy program was no longer

mandatory for him, because he had completed 240 instructional hours, Livengood

continued to participate, enrolling in a GED preparation class.

      By August 19, 2009, Livengood had completed 480 credit hours in the

literacy program and was making “good progress” and was demonstrating “good

effort.” On January 28, 2010, Livengood withdrew from his GED class but

continued with the BOP’s literacy program by substituting enrollment in a Life

Skills program, officially known as the GOALS program. On March 5, 2010,

1
 The parties consented to jurisdiction by a United States Magistrate Judge, see 28 U.S.C.
§ 636(c)(1).
                                            2
Livengood withdrew from the GOALS program, putting an end to his GED and/or

literacy classes. He was counseled by prison staff that his status would change

from “GED Satisfactory Progress” to “GED Unsatisfactory Progress,” to no avail.

He signed and executed the GED Program Withdrawal/Refusal Form, which

contained a written warning that, as an inmate in GED Unsatisfactory Progress

status, and in accordance with 28 C.F.R. § 523.20(c), he would be eligible to

receive only 42 days of good conduct time per year served, and not the maximum

54 days that inmates making satisfactory progress are eligible to earn.

      Livengood challenged the reduction in his good conduct time earning rate

through the BOP’s administrative grievance process, alleging that he was entitled

to receive 12 additional days of good credit time for each of the years that his GED

progress was listed as “unsatisfactory, ” notwithstanding his voluntary withdrawal

from the BOP’s literacy program. The BOP denied his grievance, including at the

highest level.

      On January 21, 2011, Livengood filed a petition for writ of habeas corpus,

28 U.S.C. § 2241, in the United States District Court for the Western District of

Pennsylvania, in which he contended that the reduction in his good conduct time

earning rate constitutes “discipline” for withdrawing from the literacy program in

violation of 28 C.F.R. § 544.73(c). Following the submission of an answer by the




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BOP and the administrative record, the Magistrate Judge denied the petition on the

merits.

      Livengood appeals. We have jurisdiction under 28 U.S.C. § 1291. Our

Clerk granted Livengood leave to appeal in forma pauperis and advised him that

the 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, and he has done so. Under Third Circuit LAR 27.4

and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears

that no substantial question is presented by the appeal. We exercise plenary review

over the District Court’s legal conclusions and apply a clearly erroneous standard

to its findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002).

      The Prison Litigation Reform Act (“PLRA”) established a “mandatory

functional literacy” program for “for all mentally capable inmates who are not

functionally literate.” 18 U.S.C. § 3624(f)(1). Inmates are required to participate

in the program for a period of time “sufficient to provide the inmate with an

adequate opportunity to achieve functional literacy.” Id. at § 3624(f)(2). In

addition, the BOP is required to offer “appropriate incentives which lead to

successful completion of such programs.” Id. Pursuant to the regulations which

implement the statute, inmates who do not have a high school diploma or GED are

required to participate in the program “for a minimum of 240 instructional hours or

                                         4
until a GED is achieved, whichever occurs first.” 28 C.F.R. § 544.70. Failure to

complete 240 hours of instructions in the program can result in disciplinary action.

28 C.F.R. § 544.75 (“As with other mandatory programs, such as work

assignments, staff may take disciplinary action against an inmate lacking a GED

credential or high school diploma if that inmate refuses to enroll in, and to

complete, the mandatory 240 instructional hours of the literacy program.”).

      Inmates who are serving a term of imprisonment of more than one year are

eligible to receive up to 54 days of good conduct time at the end of each year, 18

U.S.C. § 3624(b)(1). “In awarding credit under this section, the Bureau shall

consider whether the prisoner … has earned, or is making satisfactory progress

toward earning, a high school diploma or an equivalent degree.” Id. See also 28

C.F.R. § 523.20(c)(1) (“For inmates serving a sentence for an offense committed

on or after April 26, 1996, the Bureau will award *** 54 days credit for each year

served (prorated when the time served by the inmate for the sentence during the

year is less than a full year) if the inmate has earned or is making satisfactory

progress toward earning a GED credential or high school diploma.”). An inmate

“shall be deemed to be making satisfactory progress toward earning a GED

credential or high school diploma unless” the inmate refuses to enroll in the

literacy program; the inmate commits a prohibited act during the program, or the

inmate withdraws from the program. 28 C.F.R. § 544.73(b)(1)(i)–(iii). “[I]f the

                                           5
inmate has not earned or is not making satisfactory progress toward earning a GED

credential or high school diploma,” the BOP shall award only 42 days of good

conduct time. 28 C.F.R. § 523.20(c)(2).

      It is undisputed that Livengood completed the mandatory 240 hours of

instruction, that he did not pass the GED examination, and that he continued on

with the BOP’s literacy program by participating in the GOALS program, but then

he voluntarily withdrew from that program in March, 2010, thus earning himself

“GED unsatisfactory” status. He does not contend that anything other than his own

voluntary withdrawal from the GOALS program caused his status to change from

satisfactory to unsatisfactory. The regulation provides that withdrawal from the

literacy program constitutes a basis for loss of “GED satisfactory” status, 28 C.F.R.

§ 544.73(b)(1)(iii), and the statute, 18 U.S.C. § 3624(b)(1), provides that, based on

his “GED unsatisfactory” status, Livengood is not eligible to earn the maximum

good conduct time of 54 days per year. After he withdrew from the literacy

program, Livengood was not an inmate who “has earned, or is making satisfactory

progress toward earning, a high school diploma or an equivalent degree.” 18

U.S.C. § 3624(b)(1); 28 C.F.R. § 523.20(c)(2). The reduction in his good conduct




                                          6
time earning rate from 54 to 42 days was thus authorized by statute and

regulation.2

      Livengood correctly notes that, pursuant to regulation, he cannot be

disciplined for choosing to drop out of the literacy program once he has completed

the mandatory 240 hours of instruction, see 28 C.F.R. § 544.73(c) (“At the end of

240 instructional hours, … the unit team … shall meet with the inmate to

encourage continued participation in the literacy program until the inmate earns a

GED credential or high school diploma. At these meetings, the inmate may elect

not to continue in the literacy program, and no disciplinary action will be taken.”).

The record establishes that he did indeed complete 240 instructional hours, but it

also establishes that no disciplinary action was ever taken against him. Bureau of

Prison records indicate that no incident reports were filed, no misconduct hearings

were held, and no sanctions were imposed as a result of Livengood’s voluntary

withdrawal from the GOALS program. The reduction in his good conduct time

earning rate was not a sanction imposed pursuant to a misconduct adjudication.

Accordingly, section 544.73(c) of the federal regulations does not support his

claim for relief.




2
  Program Statement 5350.28 provides instruction to BOP staff for administering the
literacy program but it does not introduce any additional requirements that have any
bearing on Livengood’s case.
                                            7
      Livengood also argues that, ultimately, he completed 573 instructional hours

before he dropped out of the GOALS program, and, by statute, only 240 hours of

instructional time are actually mandatory. He thus should not be considered to be

in “GED unsatisfactory” status, and he should be eligible to continue receiving the

maximum of 54 days of good conduct time. He notes that, because he dropped out

of the GOALS program, he also is not permitted to continue with his computer

class, and he cannot earn anymore than the lowest rate of salary for his prison job.

The reduction in his good conduct time earning rate and the other negative

consequences of his decision to drop out are punishments, he argues, tantamount to

discipline, and a violation of constitutional due process.

      We do not agree. Substantive due process protects the individual from the

arbitrary exercise of the powers of government. See Bello v. Walker, 840 F.2d

1124, 1128 (3d Cir. 1988). The BOP’s literacy program is plainly crucial to an

inmate’s successful reintegration into society, see P.S. 5350.28, Section 1, Purpose

and Scope (“literacy program is designed to help inmates develop foundational

knowledge and skill in reading, math, and written expression, and to prepare

inmates” to get the GED credential because a “high school diploma is the basis

academic requirement for most entry-level jobs” and “[p]eople who function below

this level often find it very difficult to get a job and carry out daily activities”), and




                                            8
it is not arbitrary or fundamentally unfair to give the maximum good conduct time

reward to inmates who persevere in the program.

      For the foregoing reasons, we will summarily affirm the order of the District

Court denying Livengood’s petition for writ of habeas corpus.




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