                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-30-2006

Rivera v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1985




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"Rivera v. Fed Bur Prisons" (2006). 2006 Decisions. Paper 548.
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                                                           BPS-269
                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       NO. 06-1985
                      ____________

                    HECTOR RIVERA,
                          Appellant

                            v.

THE FEDERAL BUREAU OF PRISONS; HARVEY LAPPINS,
         in his official capacity as Director of The
      Bureau of Prisons; JOHN NASH, in his official
      capacity as Warden of FCI Fort Dix, New Jersey
                    _________________

      On Appeal From the United States District Court
               For the District of New Jersey
                (D.C. Civil No. 05-cv-05893)
        District Judge: Honorable Freda L. Wolfson
                   ___________________

        Submitted For Possible Summary Action
       Under Third Circuit LAR 27.4 and I.O.P. 10.6
                       July 7, 2006

   Before: RENDELL, AMBRO and ROTH, Circuit Judges.

                 (Filed: August 30, 2006)
                     ______________

               OPINION OF THE COURT
                   ______________
PER CURIAM

       Hector Rivera, a prisoner at the Federal Correctional Institution at Fort Dix, New

Jersey, appeals from the District Court’s order denying his petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. In his petition, Rivera alleges that prison officials

have improperly denied his requests to transfer to the Metropolitan Correctional Center, a

facility in which he used to be located which is located close to his mother’s residence in

New York. Specifically, he claims that his mother’s poor health prevents her from

traveling the significant distance to Fort Dix, and whereas she made weekly visits while

Rivera was at MCC, she has not been able to visit him since his transfer to Fort Dix in

late 2002.1

       Rivera’s claims are based on two provisions within the Bureau of Prison’s

“Program Statement.” The first, P.S. 5100.07, states that

              Redesignations between same security level institutions are discouraged,
              except for CIM purposes, closer to home purposes, or other unusual
              circumstances. A “nearer to release” transfer should be incorporated with
              “lesser security” transfers whenever possible. Once the inmate has been
              transferred within 500 miles of his or her release residence, no further
              referrals should be made as a “nearer to release” transfer consideration.

Petition at Exhibit 4. Rivera contends that his situation amounts to the “unusual

circumstances” referenced in the Statement, and that accordingly, he is entitled to be



  1
    We note that in its opinion the District Court expresses skepticism about the existence
and nature of Rivera’s mother’s health problems and the extent of their impact on her
ability to visit him. Such suspicion is not warranted in light of the significant amount of
evidence of both attached to the petition.

                                             2
transferred. Rivera also argues that officials have not conducted a proper evaluation

under the guideline because despite his clear requests to be considered under the “unusual

circumstances” language, they have interpreted his request as one to transfer nearer to the

place of his release, and repeatedly denied because he is already located within 500 miles

of New York City.

       Rivera also claims the transfer denials violate P.S. 5267.07, which describes the

“purpose and scope” of the Bureau of Prisons’ visiting regulations: “The Bureau of

Prisons encourages visiting by family, friends, and community groups to maintain the

morale of the inmate and to develop closer relationships between the inmate and family

members or others in the community.” Petition at Exhibit 2.

       While we are sympathetic to Rivera’s difficult situation, we must summarily

affirm the District Court’s judgment.2 Prisoners do not have a liberty interest in being

assigned to the facility of their choice. See Olim v. Wakinekona, 461 U.S. 238, 245-46

(1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976). To the extent that a “right” to

visitation exists via the right to association, this entitlement is limited by prison officials’

judgment in furthering penological goals. See Overton v. Bazzetta, 539 U.S. 125, 131-32

(2003). Nor does the language of the Program Statement provisions create a cognizable

liberty interest. See, e.g., Sandin v. Connor, 515 U.S. 472, 481-84 (1995); Torres v.



  2
    We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s legal reasoning for dismissing the petition. See Cradle v. U.S. ex. rel.
Miner, 290 F.3d 536, 538 (3d Cir. 2002).

                                               3
Fauver, 292 F.3d 141, 151 (3d Cir. 2002).

       As provided in 18 U.S.C. § 3621(b), the Bureau of Prisons is charged with the

responsibility of designating the place of a prisoner’s imprisonment. The Program

Statement provisions are promulgated pursuant to this authority. In light of Rivera’s lack

of liberty interest in being entitled to a particular transfer, we must decline to supervise

“the day-to-day functioning of state prisons . . . and discretionary decisions that are not

the business of federal judges.” Meachum, 427 U.S. at 228-29.

       Accordingly, we will affirm the order of the District Court.




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