Garcia v. A. Boncher

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

LORENZO GARCIA, )

)

Petitioner, ) CIVIL ACTION NO.

) 08-40017-DPW

v. )

)

S. SPAULDING1, )

Warden, FMC Devens, )

)

Respondent. )

)

MEMORANDUM AND ORDER

July 24, 2018

Lorenzo Garcia presents this amended petition for a writ of

habeas corpus seeking conditional release from his civil

commitment at FMC Devens and placement in a non-penal setting.

He completed his federal criminal sentence in 2003, but has

remained civilly committed in federal prison medical centers

since that time. In 1991, Mr. Garcia’s underlying criminal

conviction was imposed in the District of Arizona. In 2003, his

civil commitment was ordered in the Western District of

Missouri. Since 2004 he has been at FMC Devens within the

District of Massachusetts. In addition to substantive questions

regarding the appropriateness of his confinement, his petition

1 The current warden at FMC Devens is now apparently S.

Spaulding. Accordingly, pursuant to Fed. R. Civ. P. 25(d), the

current warden is substituted by name as the Respondent in this

action.

raises complicated issues of jurisdiction generally and the

scope of this court’s habeas corpus authority under 28 U.S.C.

§ 2241 in particular.

I. BACKGROUND

A. Procedural History

Mr. Garcia initiated this action by filing a pro se

petition for writ of habeas corpus on January 28, 2008. The

case was originally assigned to Judge Gertner but upon her

retirement the case was reassigned to me. After that

reassignment, given the complex jurisdictional issues, I

relieved previously appointed counsel — who acknowledged less

than complete familiarity with the full dimension of the legal

questions presented — and appointed Attorney Jeanne Kempthorne

pursuant to the Criminal Justice Act habeas corpus rubric.

Through Ms. Kempthorne, Mr. Garcia filed an Amended

Petition for writ of habeas corpus. Respondent opposed the

petition and moved to dismiss or for a change of venue.

Reserving on those motions, I held a bench trial to develop the

underlying facts about Mr. Garcia’s commitment in order to

resolve the jurisdictional issues and advance substantive

resolution of the case while the question of jurisdiction

2

remained pending. Meanwhile, Ms. Kempthorne sought to find ways

to secure alternative placements for Mr. Garcia but none proved

feasible.

As a result of my Findings of Fact in Section I.B. and my

Conclusions of Law in Section II, I have determined this case is

properly pursued in this court under 28 U.S.C. § 2241. Ms.

Kempthorne, however, has now withdrawn from the active practice

of law generally and, in particular, successfully moved to

withdraw as counsel here for Mr. Garcia. I will use this

Memorandum and Order resolving the outstanding motions to

provide background for counsel to be appointed to succeed Ms.

Kempthorne.

B. Findings of Fact

In accordance with Fed. R. Civ. P. 52, I find the

underlying facts as follows.

In 1991, a jury in the District of Arizona convicted Mr.

Garcia of the aggravated sexual assault of his niece, who was

under the age of 13. Judge Rosenblatt imposed a sentence of 96

months for the offense. Mr. Garcia was released in February

1998, but six months later, his supervised release was revoked

for sleeping at the home of his victim in violation of a court

3

order to stay away. Judge Rosenblatt imposed a sentence of 60

months in prison for the violation.

Before Mr. Garcia had served the entirety of the revocation

sentence, the government petitioned that he be civilly

committed. Mr. Garcia has borderline intellectual functioning

and began to exhibit persistent psychotic symptoms around 1995

during his first period of incarceration. During his second

period of incarceration, he began to express paranoid delusions

that a government conspiracy caused his incarceration and that

government officials or mafia-like figures had killed his

family, although, in fact, his family is still alive and living

in Arizona. He also talked about and attempted suicide on

several occasions. Eventually, he was diagnosed with

schizophrenia.

While Mr. Garcia was lodged at the Federal Medical Center

in Springfield, Missouri in 2002, he was ordered civilly

committed by Judge Dorr of the United States District Court for

the Western District of Missouri under 18 U.S.C. § 4245, as a

prisoner suffering from mental illness. Then, before Mr.

Garcia’s scheduled release from his criminal sentence, Judge

Dorr ordered him, in 2003, to remain civilly committed pursuant

4

to 18 U.S.C. § 4246, as a person otherwise eligible for release,

but posing a threat to his own safety or the safety of others as

a result of his mental illness. In May 2004, Mr. Garcia was

transferred to FMC Devens in Massachusetts, where he remains

today.

FMC Devens is a federal medical facility that primarily

houses individuals serving federally-imposed criminal sentences

who require substantial medical care. It also houses

approximately 60 civilly committed patients, including Mr.

Garcia. Mr. Garcia is housed in the Mental Health Unit known as

the N-Building. At its most restrictive, the Mental Health Unit

can lock prisoners and patients in individual cells for

approximately 23 hours per day. At its least restrictive, the

Mental Health Unit allows individuals full daytime access to the

prison compound including TV, the library, movies, religious

services, and outdoor recreation as well as treatment options

including recreation therapy and sex offender treatment. FMC

Devens requires patients who are civilly committed to wear

prison-issue clothing, subjects them to the prison curfew, and

includes them in the same mandatory counts and random cell

searches as general population inmates. Devens also employs a

5

full-time staff of mental health professionals including

psychiatrists, psychologists, and social workers. Mr. Garcia

has a treatment team that includes a treating psychiatrist, a

treating psychologist, a social worker, a recreational

therapist, and representatives from the medical and pharmacy

departments.

While serving his civil commitment, Mr. Garcia has

generally not been a disciplinary problem, although there have

been sporadic incidents of sexual misconduct such as indecent

exposure and one incident of assault. He has shown little

interest in therapy or mental health treatment, and in fact, has

consistently denied both his mental illness and his guilt for

his original crime of conviction. He has also gone through

significant periods where he has refused to comply with his

medication regimen, and the medical staff has consequently

resorted to administering it by involuntary injection. Despite

medication, his delusions persist — including the belief that he

is or once was a U.S. Marshal; that he can predict the future;

and that government staff killed or somehow stole his family

from him. He frequently refuses medication, asserts a belief

that he does not require medical treatment, denies misbehavior,

6

and regularly threatens violent behavior, although the record

demonstrates that he has rarely, if ever, followed through on

his threats of violence while committed. The Risk Assessment

Panel has concluded in its evaluation each year that Mr. Garcia

should remain civilly committed.

Mr. Garcia contends that his medical condition has

deteriorated while serving his civil commitment at FMC Devens.

Although he meets the requirements for continued civil

commitment, the level of restrictions inherent in the prison

setting, he contends, are not optimal for his treatment and this

form of civil commitment is not necessary to protect him and

others from harm. However, attempts to transfer Mr. Garcia out

of FMC Devens and into a state hospital as the locus for his

commitment have proven unsuccessful.

The government has made annual requests for the state of

Arizona to take custody of Mr. Garcia, and in the last few years

has also made the same request of the Commonwealth of

Massachusetts. Both Arizona and Massachusetts have denied the

requests. The government’s attempts at state placement have

been limited to requests under the Interstate Compact on Mental

Health. See, e.g., Mass. Gen. Laws ch. 123 App., § 1-1.

7

Arizona has offered a variety of reasons for denying his

requests including lack of qualifying diagnosis, no suitable

placement, and that the state was not accepting any transfers.

Massachusetts denied the request on the basis that Mr. Garcia

has no ties to the Commonwealth of Massachusetts. The United

States Bureau of Prisons (“BOP”) contends that such requests are

the only legally viable method to request that a state take

custody of Mr. Garcia. Through Ms. Kempthorne, Mr. Garcia

contended that the government should be investigating other

possibilities for placement as well. In any event, it does not

appear the BOP has been particularly energetic or innovative in

considering the locus of Mr. Garcia’s placement.

II. CONCLUSIONS OF LAW: JURISDICTION

The threshold question before me is whether this court has

jurisdiction to hear Mr. Garcia’s petition at all. He styles

this action as one for a writ under 28 U.S.C. § 2241, which

allows federal district courts to hear petitions for writs of

habeas corpus by individuals “within [the courts’] respective

jurisdictions,” id. at § 2241(a), claiming to be held “in

custody in violation of the Constitution or laws or treaties of

the United States.” Id. at § 2241(c)(3).

8

Mr. Garcia’s civil commitment clearly qualifies as

“custody” under the meaning of § 2241. Cf. Duncan v. Walker,

533 U.S. 167, 176 (2001) (“[F]ederal habeas corpus review may be

available to challenge the legality of a state court order of

civil commitment.”); Fernos-Lopez v. Lopez, 929 F.2d 20, 23 (1st

Cir. 1991) (“[A] person incarcerated for civil contempt, even in

the domestic relations context, is obviously in ‘custody,’ in

the traditional sense, for the purposes of invoking habeas

jurisdiction.”).

However, the government argues alternatively that Mr.

Garcia should have brought his claim as almost anything other

than a petition under § 2241. The government contends that,

given the particular relief that he seeks, Mr. Garcia must bring

this action (1) as a Bivens civil rights action, (2) as a

petition for habeas corpus under § 2255, or (3) as a challenge

to his civil commitment under § 4246. The characterization of

the action has implications for venue.

The proper venue under § 2241 and a Bivens action2 would be

the District of Massachusetts. But the proper venue for a

2 It bears noting that the scope of Bivens actions is open to

question. A recent opinion by Justice Kennedy for a 4-3

majority, Zigler v. Abbasi, 137 S.Ct. 1843 (2017), observed that

9

habeas corpus petition under § 2255 is the sentencing court, or

more accurately for this case: the committing court, the

Western District of Missouri. 28 U.S.C. § 2255(a) (“A prisoner

in custody under sentence of a court . . . claiming the right to

be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States . . .

may move the court which imposed the sentence to vacate, set

aside or correct the sentence.”). Likewise, the proper venue

for an action challenging civil commitment under § 4246 would

also be in the Western District of Missouri. See 18 U.S.C. §

4247(h) (“[C]ounsel for the person or his legal guardian may . .

. file with the court that ordered the commitment a motion for a

hearing to determine whether the person should be discharged . .

. .”).

Although this court might be the proper venue for a civil

“expanding the Bivens remedy” into a new context is

“disfavored.” Id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S.

662, 675 (2009)). With the retirement of Justice Kennedy, three

justices who have not weighed in on the question of the scope of

Bivens may adopt views decisively addressing the issue. In the

interim, it suffices to note that the Supreme Court has

recognized a Bivens remedy in an analogous context to that

presented here. Carlson v. Green, 446 U.S. 14 (1980) (cause of

action under Eighth Amendment against prison officials for

deliberate indifference to an inmate’s medical needs).

10

rights action, Mr. Garcia contends that his claim does not sound

in civil rights because it does not concern the sufficiency of

any particular medical treatment, but rather more fundamentally

the appropriateness of his placement at FMC Devens. Mr. Garcia

argues that he properly brings this action under § 2241 and that

this court may properly assert jurisdiction because he is

confined within this District. Rumsfeld v. Padilla, 542 U.S.

426, 447 (2004) (“Whenever a § 2241 habeas petitioner seeks to

challenge his present physical custody within the United States,

he should name his warden as respondent and file the petition in

the district of confinement.”).

Thus, if Mr. Garcia’s claim properly sounds in § 2241 or

civil rights, venue is proper in this court. If his claim

sounds in § 2255 or § 4246, then the Western District of

Missouri would be the proper venue.

A. Distinguishing § 2255, § 2241, and Civil Rights Actions

The respective boundaries of § 2255, § 2241, and civil

rights actions as bases to challenge various aspects of a

person’s confinement blur at the edges. As a general matter,

§ 2255 is the vehicle for collateral attack on the validity of

the imposed sentence; § 2241 is the vehicle for challenging the

11

execution of an otherwise valid sentence; and civil rights

actions - whether under Bivens for federal inmates or § 1983 for

state inmates - are the vehicle for challenges to the particular

conditions of confinement. See Matheny, 307 F.3d at 711 (“A

petitioner may attack the execution of his sentence through §

2241 in the district where he is incarcerated; a challenge to

the validity of the sentence itself must be brought under § 2255

. . . .”); Crooker v. Grondolsky, No. 12-12106, 2013 WL 101588,

at *2 (D. Mass. Jan. 4, 2013) (“Claims for inadequate medical

treatment are most properly characterized as conditions of

confinement claims, which are generally not cognizable under §

2241; rather most challenges to the constitutional adequacy of

medical care should proceed as a civil rights action pursuant to

Bivens.”). The language of Mr. Garcia’s amended petition ranges

across all three of these jurisdictional heads for prisoner

litigation: His prayer for relief seeks “conditional release,”

(Amended Petition at p. 5), potentially indicating a challenge

to his confinement cognizable under § 2255. He seeks “placement

in the least restrictive setting appropriate to his condition,”

(id. ¶ 1), potentially indicating a challenge to the particular

execution of his commitment cognizable under § 2241. Finally,

12

he also states that he “challenges the conditions of his

confinement,” (id.), rather directly indicating a potential

challenge to conditions which might be appropriate for a civil

rights action. Thus, the language used in his amended petition

does not definitively establish the proper vehicle for his

claim. Ultimately, I must look to the thrust of Mr. Garcia’s

request, which is that he be permitted to serve his civil

commitment outside a prison setting. Cf. Archuleta v. Hendrick,

365 F.3d 644, 647 (8th Cir. 2004) (finding that petitioner’s

claim sounds in habeas because it primarily challenged the fact

of his confinement even though he made certain claims regarding

medical treatment). Although he outlines deficiencies in the

medical care he receives at FMC Devens (which might be construed

as conditions of confinement), and the excessive and unnecessary

level of restrictions FMC Devens places on him (which might be

construed as challenging the fact of confinement), both are

derivative of his claim that Devens is not the appropriate place

for him to serve his civil commitment. He does not seek court

orders for better treatment or fewer restrictions in prison. He

argues that these shortcomings are evidence that FMC Devens is

not a “suitable facility” for his commitment as required by 18

13

U.S.C. § 4247(a)(2).

This is not a “conditions of confinement” case that might

be cognizable as a civil rights action because Mr. Garcia does

not seek to improve his treatment in prison. Rather, he seeks

to serve his commitment outside the prison setting. The First

Circuit has held that a petitioner could proceed by habeas

corpus rather than through a “conditions of confinement” case

when he sought to reinstate a work release program after his

warden revoked it and returned him to standard prison

confinement. Brennan v. Cunningham, 813 F.2d 1, 4 (1st Cir.

1987). As with the petitioner in Brennan, Mr. Garcia outlines

the unnecessary nature of the restrictive conditions he faces in

prison as evidence that the prison setting itself is

inappropriate, not in order to seek some specific remedy

tailored to the particular conditions of his confinement. Thus,

his claim sounds in habeas rather than civil rights. Id.; see

also Boudin v. Thomas, 732 F.2d 1107, 1111 (2d Cir. 1984)

(collecting cases) (“[H]abeas is the appropriate action to

challenge conditions of confinement where the prisoner seeks to

be moved in order to remedy past constitutional violations.”).

Habeas cases are not limited to those persons seeking complete

14

freedom from confinement. Requests to change the level of

restrictions or the form of confinement may also sound in

habeas. See Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.

1991) (“[I]f a prisoner claims to be entitled to probation or

bond or parole, his proper route is habeas corpus, even though

he is seeking something less than complete freedom.”) (citing

Maleng v. Cook, 490 U.S. 488 (1989)).

The distinction between challenging the fact or duration of

a sentence under § 2255 and challenging the execution of a

sentence under § 2241 is a fine one, especially where the remedy

the petition seeks is transfer to another location or type of

confinement. While some courts have stated that requests to

transfer to a new location are appropriate under § 2241, see

Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (“A motion

pursuant to § 2241 generally challenges the execution of a

federal prisoner’s sentence, including . . . prison transfers

[and] type of detention . . . .”) (emphasis in original);

Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)

(“[P]etitions that challenge the manner, location, or conditions

of a sentence’s execution must be brought pursuant to § 2241 . .

. .”), other courts have held that a request for a change in

15

location may amount to a challenge to the fact or duration of

confinement if the result of the transfer is eligibility for

early release, such as in a work release program, see, e.g.,

Brennan, 813 F.2d at 4-5; see also Graham, 922 F.2d at 381.

Mr. Garcia’s petition falls well outside the ambit of

Brennan because the transfer he seeks (to civil commitment in a

facility other than a federal medical prison center) will have

no immediately foreseeable effect on the duration of his

confinement. Unlike a work release program which is designed to

shorten the term of confinement, transfer to a non-penal setting

to serve civil confinement implicates neither the validity of

the commitment nor its duration. Transfer simply seeks to place

him in a more appropriate facility to serve the full time

required by a valid commitment order. Any effect on the

duration of the commitment as a result of mental health

improvement is incidental.

In an attempt to reconcile existing case law distinguishing

habeas petitions seeking a change in location from civil rights

claims, the Seventh Circuit has suggested that habeas corpus

applies where “the prisoner is seeking what can fairly be

described as a quantum change in the level of custody - whether

16

outright freedom . . . or the run of the prison in contrast to

the approximation to solitary confinement that is disciplinary

segregation.” Graham, 922 F.2d at 381. By contrast, a civil

rights action is appropriate if “he is seeking a different

program or location or environment . . . even if, as will

usually be the case, the program or location or environment that

he is challenging is more restrictive than the alternative that

he seeks.” Id.

The First Circuit applied the Graham framework in Gonzalez-

Fuentes v. Molina, 607 F.3d 864, 873-74 (1st Cir. 2010). It

essentially held that if a petitioner seeks a change in location

for the sake of change in location, the action challenges

conditions, but if he seeks a categorical change in the level of

confinement - whether or not associated with a change in

location - the claim may sound in habeas. See id. In this

case, Mr. Garcia argues that the restrictions the prison places

on him are inappropriate and, in fact, detrimental to his

health. He does not simply seek transfer for the sake of a new

location or to improve his particular conditions, but rather to

change his level of confinement fundamentally from prison to a

hospital facility. Thus, his petition seeks a transfer as a

17

“quantum change in the level of custody” challenging the

execution of the sentence, not the validity of the commitment or

its duration.3 I conclude his claim sounds in habeas under

§ 2241.

B. Transfer as Challenge to Execution of the Commitment Order

The government contends that because Petitioner seeks

transfer to a less-restrictive setting, this action is

essentially a collateral attack on his civil commitment. From

this overbroad characterization, the government draws two

erroneous conclusions: (1) that habeas corpus under § 2241

should not be available because Mr. Garcia has alternative

avenues for relief, and (2) that this petition belongs in the

Western District of Missouri because it essentially seeks to

challenge the validity of the civil commitment as provided by §

4246.

The flaw in Respondent’s first conclusion is clear from the

face of the civil commitment statute itself. To be sure,

“habeas corpus is an extraordinary remedy typically available

3 I note that the First Circuit since handing down Gonzalez-

Fuentes has suggested that something more relaxed than the

“quantum-leap” standard is sufficient. See, e.g., Francis v.

Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (§ 2241 may be invoked

“to contest one’s imprisonment in a specific facility”).

18

only when the petitioner has no other remedy,” Archuleta, 365

F.3d at 648; accord Timms v. Johns, 627 F.3d 525, 531 (4th Cir.

2010), but this is not such a “typical” case. The civil

commitment statute specifically preserves a patient’s right to

challenge his detention in habeas. In fact, under a section

titled “Habeas corpus unimpaired,” the civil commitment statute

states “Nothing contained in section . . . 4246 . . . precludes

a person who is committed under . . . such section[] from

establishing by writ of habeas corpus the illegality of his

detention.” 18 U.S.C. § 4247(g).

When a patient seeks precisely what § 4247(h) provides -

discharge from civil commitment - the proper venue would

presumptively be the committing court. Archuleta, 365 F.3d at

649. But where he attacks the manner of execution of his

commitment without challenging the validity of his continued

confinement, his claim properly sounds in habeas and he may

bring a claim against his warden in the district of his

confinement. The fact that Mr. Garcia could challenge the

validity of his commitment through § 4247(h) does not constitute

an alternative avenue of relief when he does not seek to have

his commitment declared invalid and then to be discharged, but

19

rather seeks alternative placement to serve his valid

commitment. There is no reason to require Mr. Garcia to forego

the more narrow relief he seeks simply because an alternative

avenue exists through which he could request more fundamental

relief. Thus, the avenue for discharge provided in § 4247(h)

does not bar Mr. Garcia’s petition for the habeas relief he

seeks in this case.

The government’s second conclusion is similarly flawed.

The government is correct that the proper venue for a challenge

to a civil commitment is the committing court, Pledger v.

Anderson, 416 F. App’x 580, 581 (8th Cir. 2011), but this refers

to challenges to the validity of the commitment itself, not the

particular execution. At the risk of reciting a tautology, a

commitment order is an order of the committing court. A court

has inherent authority to construe, interpret, and enforce (or

vacate) its own orders. Thus, a petitioner must bring a

challenge to the validity of the commitment order before the

court that issued it. Pledger, 416 F. App’x at 580-81.

However, unlike in Pledger, Mr. Garcia does not challenge the

validity of his commitment as issued by the committing court.

He challenges the execution of the commitment as implemented by

20

the warden overseeing his confinement. Just as it is vital that

a court have authority to construe its own orders, so too is it

vital that courts exercise jurisdiction in habeas corpus over

prisoners and civilly committed patients confined within their

district when the wardens’ execution of their sentences is put

in issue. Mr. Garcia does not challenge that aspect of his

commitment related to the committing court - the order itself.

He challenges the aspect of his commitment related to this

district — the manner in which the BOP has chosen to carry out

his commitment. Such a challenge properly belongs before a

court in the district of his confinement as a petition for

habeas corpus.

C. Conclusion

This case falls within the narrow range of civil commitment

disputes subject to adjudication under § 2241 by the court in

the district of confinement. It does not challenge the validity

of the civil commitment, for which the appropriate venue would

be the committing court under either § 2255 or § 4247(h). It

also does not simply challenge the conditions of confinement,

which is the office of a civil rights action under Bivens or

§ 1983. Rather, Mr. Garcia challenges the particular execution

21

of the commitment that the Western District of Missouri validly

imposed and seeks a categorical change in the location of

commitment. Such an action belongs in this court as the

district of his confinement.

III. DISCUSSION

Absent the assumption of responsibility by either a state

in which a patient is domiciled, or in which he was tried, the

BOP must itself “hospitalize the person for treatment in a

suitable facility.” 18 U.S.C. § 4246(d).4 A Federal Medical

Center, such as FMC Devens, where Mr. Garcia is now housed, can

be a “suitable facility” as required for civilly committed

patients. 18 U.S.C. § 4247(a)(2). A prison medical facility

may be suitable despite Petitioner’s complaint that he is

“treated as if he were a convicted prisoner rather than a civil

committee or patient.” Phelps v. U.S. Bureau of Prisons, 62

F.3d 1020, 1022-23 (8th Cir. 1995). Consequently, Mr. Garcia’s

argument that the very fact he is incarcerated in a prison

4 Although the civil commitment statute imposes obligations on

the Attorney General as the responsible party, the Director of

the BOP has by regulation been designated responsible for

implementation of 18 U.S.C. §§ 4246 and 4247. 28 C.F.R. §

0.96(j). Consequently, in this Memorandum and Order, I will

refer to the BOP as the responsible agency for implementation.

22

facility and that the guards treat him like other prisoners in

terms of restrictions on his freedoms, standing alone, cannot

justify his petition on the basis that FMC Devens is not a

“suitable facility.”

I continue to find FMC Devens a suitable facility as a

general proposition. It is a long-term psychiatric hospital

setting, albeit within the context of a prison. It employs a

full-time staff of psychiatrists, psychologists and social

workers specializing in mental health treatment, and Mr. Garcia

has a qualified team assigned to attend to his mental health and

treatment who meet quarterly to discuss his progress. It is

equipped to address Mr. Garcia’s mental health medical needs and

sex offender treatment related to his offense. His confinement

is not categorically restrictive in light of his requirements.

The N-building, where Mr. Garcia lives, is a step-down program

in which the restrictions range from N-1, which is essentially

solitary confinement, to N-4 and N-5, in which Mr. Garcia has

full daytime access to FMC Devens facilities. This includes

medical and mental health support such as support groups and sex

offender treatment as well as recreational activities such as

TV, the library, religious services, and the dining hall. On

23

good behavior, Mr. Garcia can step down to the less restrictive

stages of confinement. Mr. Garcia argues that FMC Devens is not

a step-down facility because there is no option to be released

on good behavior, but this proves too much. If Mr. Garcia were

transferred to a state hospital to serve his civil commitment,

his release would depend on whether he would be a danger to

himself or others - the same standard governing the potential

for his release from Devens.

But the BOP does not fully satisfy its statutory

obligations by housing Mr. Garcia in a suitable federal

facility. The BOP is also under a statutory obligation to “make

all reasonable efforts to cause a state to assume [control over

the committed person],” 18 U.S.C. § 4248(d), as Mr. Garcia

requests.

To be sure, it is questionable whether the BOP, or this

court has the power to compel a state to accept responsibility

for Mr. Garcia. See 18 U.S.C. § 4248(d) (providing for

alternatives if a state will not accept responsibility for a

civil committee); United States v. Stanford, 769 F. Supp. 2d

1083, 1090-91 (N.D. Tex. 2011) (finding that the court must

commit a civilly committed patient to the custody of the

24

Attorney General and does not have the power to order a

particular placement itself); United States v. Auberg, No. 01-

0216M-01, 2001 WL 987802, at *4 (S.D. Ind. July 9, 2001) (same).

However, I am not persuaded that the BOP has made “all

reasonable efforts” to place Mr. Garcia in a state facility. I

recognize that the social workers at FMC Devens have made annual

requests to obtain state hospital placement for Mr. Garcia in

Arizona - Mr. Garcia’s original home state and the state in

which his criminal trial took place - since 2002, but Arizona

has denied each request for various reasons including lack of a

qualifying diagnosis. The BOP has not contested further

Arizona’s position that the state simply would accept no

transfers.

Although Mr. Garcia has no relationship with Massachusetts

other than his confinement since 2004 at FMC Devens, his social

worker has also requested transfer to a Massachusetts hospital,

presumably because Massachusetts at this point is effectively

Mr. Garcia’s domicile. This was also denied and again the BOP

has not contested further the position Massachusetts has taken.

I am not persuaded at this point that repetitive and rote

requests are all that is reasonable under the circumstances. I

25

will permit further record development to provide a foundation

for determining whether they are.

Moreover, the BOP’s near-contumacious refusal to provide a

meaningful explanation why it has apparently made no effort to

pursue two additional alternatives outlined in § 4247(i): (A)

“. . . contract[ing] with a State, political subdivision,

locality or a private agency for the confinement,

hospitalization, care or treatment, or in the provision of

services to, a person committed . . . [or] (B) . . . apply[ing]

for the civil commitment, pursuant to State law of a person

committed to [BOP] custody pursuant to section . . . 4246 . . .

” requires further inquiry. The BOP’s twice-repeated answer is

that it is not required by statute to do so, but it does not

explain, as my inquiry plainly required, its position why it has

not chosen to do so.

Under these circumstances, further record development may

be necessary to determine whether the BOP’s inexplicable refusal

even to explore these alternatives is in contravention of its

statutory directive to use “all reasonable efforts to cause . .

. a state to assume control” of Mr. Garcia’s commitment.

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IV. CONCLUSION

For the foregoing reasons, I DENY Respondent’s motion [Dkt.

No. 69] to dismiss or to change venue regarding the First

Amended Petition for Writ of Habeas Corpus.

/s/ Douglas P. Woodlock_________

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

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