1 WO KM 2 3 4 5 8 9 Andrew James Johnston, No. CV-25-00164-TUC-SHR (EJM) 10 Petitioner, 11 v. ORDER 12 Mark Gutierrez, 13 Respondent.
14 15 Self-represented Petitioner Andrew James Johnston, who is confined in the Federal 16 Correctional Institution-Tucson, filed a Petition Under 28 U.S.C. § 2241 for Writ of Habeas 17 Corpus by a Person in Federal Custody (Doc. 1) and subsequently paid the filing fee. 18 Petitioner has also filed a Motion for Preliminary Injunctive Relief (Doc. 5) and a Motion 19 for Preliminary Discovery (Doc. 7). The Court will deny the Motions and require an 20 answer to the Petition. 21 I. Petition 22 In his Petition, Petitioner names Mark Gutierrez as Respondent. In Ground One, 23 Petitioner alleges the First Step Act (FSA), 18 U.S.C. § 3632(d)(4)(A), uses the terms 24 “shall earn,” “shall be applied,” and “shall transfer” with respect to time credits. Petitioner 25 contends the Bureau of Prisons (BOP) wrongfully implemented 28 C.F.R. § 523.44(a)–(c) 26 and Program Statement (PS) 5410.01, Section 10, which use the terms “may be applied” 27 and “may apply” instead of § 3632’s “shall be applied” and “shall transfer.” According to 28 Petitioner, under the “shall be applied” and “shall transfer” provisions of the FSA, inmates 1 with high/medium recidivism risk scores should be able to apply their earned credits when 2 they “equal . . . the remainder of the[ir] sentence.” He alleges, however, BOP uses 28 3 C.F.R. § 523.44(b) to “categorically deny[] application of earned FSA time credits to 4 prisoners who have demonstrated recidivism risk reduction.” Petitioner contends he is an 5 “eligible prisoner” under 18 U.S.C. 3624(g)(1)(B) for application of earned time credits 6 because he has demonstrated “recidivism risk reduction.” Petitioner argues BOP’s 7 “substitution of ‘shall’ with ‘may’ has falsely supplied discretion to only apply earned FSA 8 time credits to minimum or low recidivism risk scored prisoners.” 9 In Ground Two, Petitioner alleges “PS 5410.01, § 10(c)’s requirement of an 10 approval and/or ‘exemption’ from the Regional Director in addition to the Warden’s 11 approval to apply earned FSA time credits should be invalidated because 18 U.S.C. 12 § 3624(g)(1)(D)(i)(II)(aa)–(cc) only requires the Warden’s approval and says nothing 13 about the Regional Director at all.” 14 Petitioner concedes he has not exhausted his administrative remedies but contends 15 exhaustion would be futile because he is challenging “an official BOP policy which is 16 subject to the futility exception to exhaustion of administrative remedies as intra-agency 17 relief cannot be obtained per the policy’s existence.” 18 The Court will require Respondent to answer the Petition. 19 II. Motions 20 A. Preliminary Injunction 21 Petitioner seeks an order “that immediately sets aside 28 C.F.R. § 523.44(a)–(c) and 22 Program Statement 5410.01, § 10–§ 10(c) with respect to petitioner individually, and either 23 compels application, or restrains withholding application of Petitioner’s earned 640 days 24 of First Step Act time credits.” 25 Whether to grant or deny a motion for a temporary restraining order or preliminary 26 injunction is within the Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 27 1130, 1132–33 (9th Cir. 1979). To obtain a preliminary injunction, the moving party must 28 show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm 1 in the absence of preliminary relief, that the balance of equities tips in his favor, and that 2 an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 3 20 (2008). The moving party has the burden of proof on each element of the test. Env’t 4 Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). The Court 5 finds Petitioner has not adequately demonstrated each element of the test. The Court will 6 therefore deny without prejudice the Motion for Preliminary Injunction. 7 B. Preliminary Discovery 8 Petitioner seeks an order requiring Respondent to produce various documents 9 associated with Petitioner’s classification and accrual of FSA time credits. Respondent has 10 not yet been served or filed a response. The Court will therefore deny the Motion as 11 premature. 12 III. Warnings 13 A. Address Changes 14 Petitioner must file and serve a notice of a change of address in accordance with 15 Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 16 for other relief with a notice of change of address. Failure to comply may result in dismissal 17 of this action. 18 B. Copies 19 Petitioner must serve Respondent, or counsel if an appearance has been entered, a 20 copy of every document he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 21 stating a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner must submit 22 an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to comply may 23 result in the filing being stricken without further notice to Petitioner. 24 C. Possible Dismissal 25 If Petitioner fails to timely comply with every provision of this Order, including 26 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (a district court may dismiss an action 28 for failure to comply with any order of the Court). 1 IT IS ORDERED: 2 (1) Petitioner's Motion for Preliminary Injunction (Doc. 5) and Motion for 3 Preliminary Discovery (Doc. 7) are denied. 4 (2) The Clerk of Court must serve a copy of the Summons, the Petition (Doc. 1), 5 and this Order upon the United States Attorney for the District of Arizona by certified mail 6 addressed to the civil process clerk at the office of the United States Attorney pursuant to 7 Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The Clerk of Court must also send 8 by certified mail a copy of the Summons, the Petition, and this Order to the United States 9 Attorney General pursuant to Rule 4(i)(1)(B) and to Respondent pursuant to Rule 4(i)(2) 10 of the Federal Rules of Civil Procedure. 11 (3) Respondent must answer the Petition within 20 days of the date of service. 12 Respondent shall not file a dispositive motion in place of an answer without first showing 13 cause as to why an answer is inadequate.
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1 WO KM 2 3 4 5 8 9 Andrew James Johnston, No. CV-25-00164-TUC-SHR (EJM) 10 Petitioner, 11 v. ORDER 12 Mark Gutierrez, 13 Respondent.
14 15 Self-represented Petitioner Andrew James Johnston, who is confined in the Federal 16 Correctional Institution-Tucson, filed a Petition Under 28 U.S.C. § 2241 for Writ of Habeas 17 Corpus by a Person in Federal Custody (Doc. 1) and subsequently paid the filing fee. 18 Petitioner has also filed a Motion for Preliminary Injunctive Relief (Doc. 5) and a Motion 19 for Preliminary Discovery (Doc. 7). The Court will deny the Motions and require an 20 answer to the Petition. 21 I. Petition 22 In his Petition, Petitioner names Mark Gutierrez as Respondent. In Ground One, 23 Petitioner alleges the First Step Act (FSA), 18 U.S.C. § 3632(d)(4)(A), uses the terms 24 “shall earn,” “shall be applied,” and “shall transfer” with respect to time credits. Petitioner 25 contends the Bureau of Prisons (BOP) wrongfully implemented 28 C.F.R. § 523.44(a)–(c) 26 and Program Statement (PS) 5410.01, Section 10, which use the terms “may be applied” 27 and “may apply” instead of § 3632’s “shall be applied” and “shall transfer.” According to 28 Petitioner, under the “shall be applied” and “shall transfer” provisions of the FSA, inmates 1 with high/medium recidivism risk scores should be able to apply their earned credits when 2 they “equal . . . the remainder of the[ir] sentence.” He alleges, however, BOP uses 28 3 C.F.R. § 523.44(b) to “categorically deny[] application of earned FSA time credits to 4 prisoners who have demonstrated recidivism risk reduction.” Petitioner contends he is an 5 “eligible prisoner” under 18 U.S.C. 3624(g)(1)(B) for application of earned time credits 6 because he has demonstrated “recidivism risk reduction.” Petitioner argues BOP’s 7 “substitution of ‘shall’ with ‘may’ has falsely supplied discretion to only apply earned FSA 8 time credits to minimum or low recidivism risk scored prisoners.” 9 In Ground Two, Petitioner alleges “PS 5410.01, § 10(c)’s requirement of an 10 approval and/or ‘exemption’ from the Regional Director in addition to the Warden’s 11 approval to apply earned FSA time credits should be invalidated because 18 U.S.C. 12 § 3624(g)(1)(D)(i)(II)(aa)–(cc) only requires the Warden’s approval and says nothing 13 about the Regional Director at all.” 14 Petitioner concedes he has not exhausted his administrative remedies but contends 15 exhaustion would be futile because he is challenging “an official BOP policy which is 16 subject to the futility exception to exhaustion of administrative remedies as intra-agency 17 relief cannot be obtained per the policy’s existence.” 18 The Court will require Respondent to answer the Petition. 19 II. Motions 20 A. Preliminary Injunction 21 Petitioner seeks an order “that immediately sets aside 28 C.F.R. § 523.44(a)–(c) and 22 Program Statement 5410.01, § 10–§ 10(c) with respect to petitioner individually, and either 23 compels application, or restrains withholding application of Petitioner’s earned 640 days 24 of First Step Act time credits.” 25 Whether to grant or deny a motion for a temporary restraining order or preliminary 26 injunction is within the Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 27 1130, 1132–33 (9th Cir. 1979). To obtain a preliminary injunction, the moving party must 28 show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm 1 in the absence of preliminary relief, that the balance of equities tips in his favor, and that 2 an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 3 20 (2008). The moving party has the burden of proof on each element of the test. Env’t 4 Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). The Court 5 finds Petitioner has not adequately demonstrated each element of the test. The Court will 6 therefore deny without prejudice the Motion for Preliminary Injunction. 7 B. Preliminary Discovery 8 Petitioner seeks an order requiring Respondent to produce various documents 9 associated with Petitioner’s classification and accrual of FSA time credits. Respondent has 10 not yet been served or filed a response. The Court will therefore deny the Motion as 11 premature. 12 III. Warnings 13 A. Address Changes 14 Petitioner must file and serve a notice of a change of address in accordance with 15 Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 16 for other relief with a notice of change of address. Failure to comply may result in dismissal 17 of this action. 18 B. Copies 19 Petitioner must serve Respondent, or counsel if an appearance has been entered, a 20 copy of every document he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 21 stating a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner must submit 22 an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to comply may 23 result in the filing being stricken without further notice to Petitioner. 24 C. Possible Dismissal 25 If Petitioner fails to timely comply with every provision of this Order, including 26 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (a district court may dismiss an action 28 for failure to comply with any order of the Court). 1 IT IS ORDERED: 2 (1) Petitioner's Motion for Preliminary Injunction (Doc. 5) and Motion for 3 Preliminary Discovery (Doc. 7) are denied. 4 (2) The Clerk of Court must serve a copy of the Summons, the Petition (Doc. 1), 5 and this Order upon the United States Attorney for the District of Arizona by certified mail 6 addressed to the civil process clerk at the office of the United States Attorney pursuant to 7 Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure. The Clerk of Court must also send 8 by certified mail a copy of the Summons, the Petition, and this Order to the United States 9 Attorney General pursuant to Rule 4(i)(1)(B) and to Respondent pursuant to Rule 4(i)(2) 10 of the Federal Rules of Civil Procedure. 11 (3) Respondent must answer the Petition within 20 days of the date of service. 12 Respondent shall not file a dispositive motion in place of an answer without first showing 13 cause as to why an answer is inadequate. 14 (4) Regarding courtesy copies of documents for chambers, Respondent is 15 directed to review Section II(D) of the Court's Electronic Case Filing Administrative 16 Policies and Procedures Manual, which requires "a courtesy copy of the filing, referencing 17 the specific document number, shall be printed directly from CM/ECF." CM/ECF Admin. 18 Man. § II(D)(3) (emphasis added). See 19 https://www.azd.uscourts.gov/sites/azd/files/adm%20manual.pdf. 20 (5) Petitioner may file a reply within 30 days from the date of service of the 21 answer. 22 . . . . 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 (6) This matter is referred to Magistrate Judge Eric J. Markovich pursuant to 2| Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. 4 Dated this 19th day of August, 2025. 5 6 : “tt hed 8 Ae Scott H. Rash United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28