United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court is Petitioner Ruben Gutierrez's
(“Gutierrez”) Motion for Temporary Restraining
Order and/or Preliminary Injunction. (Dkt. 2). Gutierrez,
currently incarcerated in FCI-Bastrop, filed a petition for a
writ of habeas corpus. (Pet., Dkt. 1). Because he seeks
reinstatement of sentence-reduction credit for his
participation in a drug treatment program, Gutierrez's
petition challenges the execution of his sentence, and is
therefore brought under 28 U.S.C. 2241. See Roach v.
United States, 732 Fed.Appx. 325, 326 (5th Cir. 2018)
(“Section 2241 is the proper procedural vehicle if a
prisoner is challenging the execution of his sentence rather
than the validity of his conviction and sentence.”). He
asks that the Court order the reinstatement of his lost
credits during the pendency of this action. (Mot., Dkt. 2, at
to Gutierrez, he entered a Bureau of Prisons
(“BOP”) Residential Drug Abuse Program
(“RDAP”) in September 2016 and completed the
program in March 2018, entitling him to a one-year reduction
in his term of incarceration. (Pet., Dkt. 1-1, at 1-2). In
January 2019, a corrections officer found an electrical
device called a “stinger” in Gutierrez's cell
trash can that was being used to cook several pounds of meat.
(Email, Dkt. 1-1, at 15; RDAP Status Memo, Dkt. 1-1, at
34-35). Based on that incident and a positive drug test in
2017 for which he was issued a formal warning, a BOP
psychiatrist (“Dr. Wartenberg”) expelled him from
the RDAP. (RDAP Status Memo, Dkt. 1-1, at
34-35). Gutierrez asked his facility's warden,
Respondent Ma'at, to reinstate him into the RDAP, but
Ma'at denied that request. (Response, Dkt. 1-1, at 11).
In doing so, Ma'at observed that Gutierrez had received a
formal warning in 2017 and found that his behavior after the
stinger was found in his cell, which included a failure to
take responsibility, justified his expulsion from the RDAP.
(Id.). Gutierrez now asks this Court to reinstate
his RDAP credit because the BOP's decision to rescind
that credit was arbitrary and capricious in violation of the
Administrative Procedure Act (“APA”), 5 USC
§551 et seq., and violative of his
constitutional due process rights. (Pet., Dkt. 1-1, at 5-8).
He argues that because he “would be free by now”
had the credit not been rescinded, the Court should reinstate
the credit now, before a decision on the merits, by way of a
preliminary injunction. (Mot., Dkt. 2, at 2).
preliminary injunction is an extraordinary remedy, and the
decision to grant such relief is to be treated as the
exception rather than the rule. Valley v. Rapides Par.
Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997). “A
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). The party seeking injunctive relief carries the
burden of persuasion on all four requirements. PCI
Transp. Inc. v. W. R.R. Co., 418 F.3d 535, 545 (5th Cir.
2005). A movant cannot be granted a preliminary injunction
unless he can establish that he is substantially likely to
succeed on the merits. Johnson v. Fed. Emergency Mgmt.
Agency, 393 Fed.Appx. 160, 162 (5th Cir. 2010) (citing
La Union Del Pueblo Entero v. FEMA, 608 F.3d 217,
220 (5th Cir. 2010)). Here, the Court's analysis begins
and ends with its finding that Gutierrez has not met his
burden to show that he is substantially likely to succeed on
argues that he is entitled to relief under the APA because
the BOP's decision to expel him from the RDAP “was
arbitrary, capricious, and abuse of discretion.” (Pet.,
Dkt. 1-1, at 5). But Gutierrez is not substantially likely to
succeed on the merits of that claim because the APA does not
provide for judicial review of the BOP's discretionary
administration of residential substance abuse treatment
is a waiver of sovereign immunity that provides for judicial
review of federal agency action. 5 U.S.C. § 702.
However, the APA does not provide for judicial review when a
statute precludes it. Id. at § 701(a)(1). Such
is the case here. Gutierrez seeks a sentence reduction under
18 U.S.C. § 3621, which authorizes the BOP to provide
residential substance abuse treatment to eligible inmates and
endows the agency with the discretion to reduce a
prisoner's sentence upon successful completion of such a
program. See 18 U.S.C. § 3621(e)(2)(B)
(providing that the BOP “may” reduce a
prisoner's sentence following successful
in the subchapter providing for Gutierrez's claimed
sentence reduction, however, Congress withdrew Section 3621
from the APA's purview. 18 U.S.C. § 3625 provides
that “provisions of sections . . . 701 through 706 of
title 5”-that is, the APA-“do not apply to the
making of any determination, decision, or order under this
subchapter.” 18 U.S.C. § 3625. That subchapter,
entitled “Imprisonment, ” includes Section 3621.
Therefore, the APA does not provide judicial review of the
expulsion of prisoners from a substance abuse treatment
program or the denial of a sentence reduction based on such a
program. See Robertson v. Laughlin,
5:10CV126-DCB-JMR, 2012 WL 2872686, at *2 (S.D.Miss. Feb. 1,
2012), report and recommendation adopted sub nom.
Robertson v. Pearson, 5:10-CV-126 DCB JMR, 2012 WL
2873943 (S.D.Miss. July 12, 2012) (reaching the same
conclusion about placement in BOP substance abuse treatment
Gutierrez argues that his claim is subject to judicial review
notwithstanding Section 3625's statutory exclusion
because the retraction of his sentence-reduction credit
violates his constitutional right to due process. (Pet., Dkt.
1-1, at 4 (citing Webster v. Doe, 486 U.S. 592, 603
(1988))). In order to establish a violation of the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution, Gutierrez must show that the BOP's
actions infringed a liberty interest within the meaning of
that clause. See Meachum v. Fano, 427 U.S. 215, 223
(1976). This he cannot do, as the Fifth Circuit has
repeatedly held that neither the Due Process Clause itself
nor any federal statute or regulation creates a liberty
interest in receiving a Section 3621(e)(2)(B) sentence
reduction. Handley v. Chapman, 587 F.3d 273, 281
(5th Cir. 2009); Richardson v. Joslin, 501 F.3d 415,
420 (5th Cir. 2007). “Without a liberty interest, there
is no procedural due process claim.” Handley,
587 F.3d at 281. Accordingly, the Court finds that Gutierrez
has not established that he is substantially likely to
succeed on the merits of his petition. A preliminary
injunction is not warranted.
IT IS ORDERED that Gutierrez's Motion
for Temporary Restraining Order and/or Preliminary
Injunction, (Dkt. 2), is DENIED.
 Documentary evidence attached to
Gutierrez's petition that he was expelled from the
treatment program appears to contradict his allegation ...