CLD-017                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-2370
                                       ___________

                             MALIK HANNA DABABNEH,
                                           Appellant

                                             v.

                              WARDEN LORETTO FCI
                       ____________________________________

                   On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 3:18-cv-00217)
             Magistrate Judge: Honorable Cynthia Reed Eddy (by consent)
                     ____________________________________

       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 17, 2019
              Before: JORDAN, KRAUSE and MATEY, Circuit Judges

                            (Opinion filed: October 23, 2019)
                                       _________

                                        OPINION *
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Malik Hanna Dababneh appeals pro se from an order of the United States District

Court for the Western District of Pennsylvania denying his habeas petition. 1 For the

following reasons, we will summarily affirm.

         In October 2018, Dababneh, a federal prisoner, filed a habeas petition in the

District Court pursuant to 28 U.S.C. § 2241. 2 He alleged that the Bureau of Prisons

(“BOP”) wrongfully expelled him from FCI-McKean’s Residential Drug Abuse Program

(“RDAP”), the completion of which would have rendered him eligible for a sentence

reduction pursuant to 18 U.S.C. § 3621(e)(2)(B). The District Court concluded that

review of the BOP’s decision to expel Dababneh from the RDAP is not available under

the Administrative Procedure Act (APA). 18 U.S.C. § 3625. Although the District Court

determined that it could still review colorable constitutional questions, it held that there

was no merit to Dababneh’s claim that the BOP violated his due process rights or

retaliated against him. Dababneh appealed.

         We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review

over the District Court’s order. 3 See Reese v. Warden Philadelphia FDC, 904 F.3d 244,

246 (3d Cir. 2018).


1
    The parties consented to proceed before a Magistrate Judge. See 28 U.S.C. § 636(c)(1).
2
  Because the BOP’s decision to expel Dababneh from the RDAP potentially affected the
length of his sentence, he properly brought his claim under § 2241. See Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973); Gardner v. Grandolsky, 585 F.3d 786, 788 (3d Cir.
2009).
3
    Dababneh does not need to obtain a certificate of appealability to proceed with this
                                               2
       Pursuant to 18 U.S.C. § 3621(b), the BOP is directed to “make available

appropriate substance abuse treatment for each prisoner the Bureau determines has a

treatable condition of substance addiction or abuse.” To this end, the Bureau must

provide residential substance abuse treatment to eligible prisoners. 18 U.S.C.

§ 3621(e)(1). The BOP has discretion to determine which prisoners are eligible to

participate in the RDAP, 18 U.S.C. § 3621(e)(5)(B), and even to grant or deny eligible

prisoners sentence reductions upon successful completion of the program, 18 U.S.C.

§ 3621(e)(2)(B). Participants who successfully complete a treatment program may have

their sentences reduced by up to one year. 18 U.S.C. § 3621(e)(2)(B). The BOP has

established regulations governing eligibility for participation in the RDAP. See 28

C.F.R. § 550.53.

       We may consider challenges to the BOP’s interpretation of those regulations. See

Gardner, 585 F.3d at 788 (stating that jurisdiction existed to address petitioner’s claim

that BOP regulation, which categorically excluded felons whose offense involved

possession of a firearm from eligibility for a sentence reduction under the RDAP,

violated the APA). Notably, though, Congress has expressly foreclosed judicial review

of the BOP’s individual RDAP placement decisions. Specifically, 18 U.S.C. § 3625

provides that the judicial review provisions of the APA do not apply to “any

determination, decision, or order” made pursuant to, inter alia, 18 U.S.C. §§ 3621. Thus,


appeal. See Bruce v. Warden Lewisburg USP, 868 F.3d 170, 177 (3d Cir. 2017).

                                             3
because “[t]he BOP’s substantive decisions to remove particular inmates from the RDAP

… are … not subject to judicial review[,]” the District Court properly held that it was

foreclosed from considering Dababneh’s challenge to the BOP’s decision to expel him

from the program. Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011); see also

Standifer v. Ledezma, 653 F.3d 1276, 1279 n.3 (10th Cir. 2011) (“To the extent Standifer

challenges only the BOP’s decision regarding his eligibility for RDAP participation, his

argument is expressly foreclosed by 18 U.S.C. § 3625, which prohibits judicial review

under the APA of RDAP placement decisions.”).

         Nevertheless, as the District Court explained, even where judicial review under the

APA is specifically excluded by statute, judicial review remains available for allegations

that BOP action violates the United States Constitution, see Webster v. Doe, 486 U.S.

592, 603-04 (1988), or is contrary to established federal law, see Neal v. United States,

516 U.S. 284, 295 (1996). Dababneh did not claim that the BOP’s decision was contrary

to established law, but he did assert that his expulsion from the RDAP violated his right

to due process, infringed on his equal protection rights, and was made in retaliation for

his criticism of the management style of the RDAP’s coordinators. These claims lack

merit.

         First, Dababneh’s due process claim fails because a prisoner has no protectable

liberty interest in participating in the RDAP, or, for that matter, early release following

completion of that program. See Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir.

1998) (stating that § 3621(e)(2)(B) “allows a decisionmaker to deny the requested relief
                                              4
within its unfettered discretion [and] does not create a constitutionally-recognized liberty

interest”); see also Stephany v. Wagner, 835 F.2d 497, 500-01 (3d Cir. 1987) (noting that

a rule creates a protectable interest only when it constrains the decisionmaker’s

discretion). Citing Block v. Potter, 631 F.2d 233 (3d Cir. 1980), Dababneh also alleged

that the BOP’s discretion to expel him from the RDAP is limited by his right to

substantive due process. In Block, we held that “all prisoners have a liberty interest

flowing directly from the due process clause in not being denied parole for arbitrary or

constitutionally impermissible reasons[,]” including “frivolous criteria with no rational

relationship to the purpose of parole[.]” 631 F.2d at 234 & 236 n.2. Even assuming,

doubtfully, that prisoners have a similar interest in RDAP participation, Dababneh has

not alleged that his expulsion was so arbitrary, frivolous, or without a rational

relationship to valid penal concerns that Block would be implicated.

       Second, Dababneh suggested that “his history as a physician” caused the BOP to

hold “him to a higher standard than the other inmates.” Although Dababneh may proceed

under a class-of-one equal protection theory, his bare, conclusory allegation that he was

discriminated against due to his status as a physician is insufficient. See Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (explaining that an equal

protection claim brought by a “class of one” requires the plaintiff to sufficiently allege

that he “has been intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.”); Renchenski v. Williams, 622

F.3d 315, 338 (3d Cir. 2010) (holding that “mere conclusory allegations” could not
                                              5
support equal protection claim). Dababneh also suggests that he would have been able to

remain in the RDAP if the BOP had properly treated his depression. But he did not

allege that the BOP treats depressed RDAP participants more harshly than others or, for

that matter, that he was treated worse than other depressed RDAP participants. See Reeb,

636 F.3d at 1228 n.4 (stating that inmate who brought an equal protection claim based on

expulsion from RDAP did “not present any facts demonstrating that he was treated

differently from others who were similarly situated to him”).

       Finally, assuming that Dababneh can meet his burden to show that his exercise of

a constitutional right was a substantial or motivating factor in the decision to expel him

from the RDAP, the “quantum of evidence” of Dababneh’s conduct established that the

BOP acted within the bounds of its discretion in expelling him from the RDAP. See

Watson v. Rozum, 834 F.3d 417, 425 (3d Cir. 2016). RDAP regulations provide that

“[i]nmates may be removed from the program by the Drug Abuse Program Coordinator

because of disruptive behavior related to the program or unsatisfactory progress in

treatment.” 28 C.F.R. § 550.53(g)(1). Here, the BOP submitted prison records

documenting the behavior and infractions that led to Dababneh’s expulsion from the

RDAP. Most notably, after spending over a year in the program, Dababneh reported that

he had used controlled substances on two occasions. Although he stated that he came

forward because a peer had convinced him to do so, he also admitted that he had been

picked to give a urine sample and feared that it would test positive for drugs. In addition,

Dababneh failed to report that he had been fired from his warehouse job six weeks
                                             6
earlier. Furthermore, Dababneh received written warnings for, inter alia, displaying a

pattern of disregard for the rules, a sense of entitlement, a lack of responsibility, and a

failure to put an action-based plan in place to correct his behavior. Given the BOP’s

broad discretion over individualized decisions regarding RDAP participation, we

conclude that Dababneh’s pattern of non-compliance with RDAP rules – especially his

initially-undisclosed drug use and his failure to report his firing – was “so clear and overt

that we cannot say that the … action taken against [him] was retaliatory.” Carter v.

McGrady, 292 F.3d 152, 159 (3d Cir. 2002).

       Because the petition was properly denied and no substantial question is presented

by this appeal, we will grant the Appellee’s motion for summary affirmance. See Third

Circuit LAR 27.4 and I.O.P. 10.6.




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