IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA EDUARD ZAVALUNOV, Civil No. 3:18-cv-2438 Plaintiff (Judge Mariani) v. : WARDEN DOUGLAS K. WHITE, ef al., Defendants MEMORANDUM Plaintiff Eduard Zavalunov (“Zavalunov’), an inmate currently confined at the Allenwood, Low Security Correctional Institution (“LSCI-Allenwood”) in White Deer, Pennsylvania, initiated this action pursuant to Bivens’, 28 U.S.C. § 1331. (Doc. ^[1]). Named

as Defendants are Warden Douglas K. White, the Federal Bureau of Prisons (“BOP”), and John Doe. Presently pending before the Court is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) and for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Defendants White and the BOP. (Doc. 19). For the reasons set forth below, the Court will grant the motion. Also pending before the Court is Zavalunov’s motion (Doc. 26) for preliminary injunctive relief. The Court will deny the motion for a preliminary injunction.

Zavalunov asserts that Warden White is responsible for the oversight of daily operations, policy compliance, detainer processing, and RRC consideration. Zavalunov expressly alleges that Defendant White “has been delegated supervisory authority and power over the day to day operation of all aspects of the operation and management of Allenwood LSC] and its personnel.” (Doc. ^[1], p. 2). Itis clear that Zavalunov attempts to hold Defendant White liable based on his role as supervisor or Warden. Any attempt by Zavalunov to hold this Defendant liable for the actions of his subordinates is essentially an assertion of respondeat superior liability which seeks to hold him liable based on his supervisory role. This ground of constitutional liability has been squarely rejected by the courts. See Rode, 845 F.2d at 1207. Zavalunov has failed to establish that Defendant White was personally involved in the alleged violation of his rights. Accordingly, Defendant White is entitled to dismissal from this action to the extent that Zavalunov’s claims against him rely on a respondeat superior theory of liability. To the extent that Zavalunov sues Defendant White based on his participation in reviewing or signing his administrative remedies, this claim also fails. Participation in “after- the-fact” review of a grievance, or dissatisfaction with the response to an inmate’s grievance, do not establish the involvement of officials and administrators in any underlying constitutional deprivation. See Rode, 845 F.2d at 1207 (supervisory liability where a defendant, after being informed of the violation through the filing of grievances, reports or appeals, failed to take action to remedy the alleged wrong is not enough to show that the defendant has the necessary personal involvement); Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006) (holding that allegations that prison officials responded inappropriately to inmate's later-filed grievances do not establish the involvement of those officials and administrators in the underlying constitutional deprivation). An inmate cannot sustain a constitutional tort claim against prison supervisors based solely upon assertions that Officials failed to adequately investigate or respond to his past grievances. Inmates do not have a constitutional right to a prison grievance system. See Speight v. Sims, 283 F. App’x 880 (3d Cir. 2008) (“[T]he existence of a prison grievance procedure confers no liberty interest on a prisoner.”). Consequently, dissatisfaction with a response to an inmate’s grievances does not support a constitutional claim. See Alexander v. Gennarini, 144 F. App’x 924 (3d Cir. 2005) (involvement in post-incident grievance process not a basis for Section 1983 liability). Thus, insofar as Defendant White is sued in his capacity for reviewing Zavalunov’s administrative remedies, dissatisfaction with responses to an inmate's grievances does not support a constitutional claim. Furthermore, Zavalunov’s conclusory statement that Defendant White is responsible for enforcement of policies and administrative procedures is not a sufficient allegation establishing his personal involvement. See Daley v. Lappin, 555 F. App’x 161, 168 (3d Cir. 2014) (inmate's allegation that BOP director instituted and implemented policy was insufficient to make BOP director liable without evidence or plausible allegations that he actually caused or knew of and acquiesced in inmate’s alleged injuries); see also Parks v. Samuels, 2015 WL 5954185, at[*10] (M.D. Pa. 2015) (dismissing Bivens claim against defendants who allegedly “were personally involved through their roles as BOP officials and administrators, through their involvement as ranking officials charged with promulgating and administering BOP policy, and apparently failing to act favorably on [the inmate’s] grievances or administrative remedies’). For all the foregoing reasons, the Court will grant Defendants’ motion to dismiss based on lack of personal involvement of Defendant White. B. | The ICE Detainer was Processed in Accordance with BOP Regulations On July 24, 2017, Zavalunov was designated to LSCI-Allenwood to enable him to participate in the Institution Hearing Program. (Doc. 20 § 3). As stated, the IHP is a coordinated effort between the BOP, ICE, and Executive Office for Immigration Review, to provide deportation, exclusion, or removal proceedings to sentenced aliens. (/d. at J 6; Doc. 20-1, pp. 11-27). BOP Program Statement 5800.15, Correctional Systems Manual, expressly states that “[wjarrants are not required when. . . ICE files a Federal detainer. Ordinarily, .. . ICE will use their Immigration Detainer form.” (Doc. 20 ¥ 7; Doc. 20-1, p. 67, BOP Program Statement 5800.15, Ch. 6 § 604). The record reflects that on September 7, 2017, an ICE Immigration Officer provided the BOP with a Warrant for Arrest of Alien and Immigration Detainer-Notice of Action pertaining to Zavalunov. (Id. at 8; Doc. 20-1, pp. 4-6, Immigration Detainer-Notice of Action; Doc. 20-1, p. 7, Warrant for Arrest of Alien). These documents indicated that there was probable cause to believe that Zavalunov is removable from the United States based on the pendency of ongoing removal proceedings against him. (/d.). The detainer instructed the BOP to notify ICE before Zavalunov is released from BOP custody, and that the DHS intends to assume custody of Zavalunov after his release from BOP custody. (Doc. 20 ff 9, 11; Doc. 20-1, p. 4). In accordance with BOP Program Statement 5800.15, Correctional Systems Manual, the BOP then generated a Detainer Action Letter to memorialize the filing of the detainer. (Doc. 20-1, p. 66, BOP Program Statement 5800.15, Ch. 6 § 603). On October 16, 2017, LSCl-Allenwood issued a Detainer Action Letter noting that a detainer was filed against Zavalunov because DHS determined that probable cause exists to believe that he is a removable alien. (Doc. 20 { 10; Doc. 20-1, p. 9, Detainer Action Letter). The Detainer Action Letter also indicated that Zavalunov was tentatively scheduled to be released on June 18, 2020. (/d.). Zavalunov acknowledges that he received a copy of the Detainer Action Letter on October 16, 2017. (Doc. 23 ¥ 4). The undisputed evidence establishes that the BOP properly processed the ICE detainer in accordance with its policies. Zavalunov has failed to present any evidence in support of his claim that the ICE detainer was fraudulently and illegally placed in his file.^[2] The Court will grant Defendants’ motion with respect to any claim that the ICE detainer was improperly issued or processed. C. The Heck Doctrine Bars Zavalunov’s Defective Detainer Claim “[HJarm caused by actions whose unlawfulness would render a conviction or sentence invalid” is not cognizable in a civil rights action, unless the conviction or sentence has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). This is known as the “favorable termination rule.” /d. Heck applies to claims involving monetary damages as well as those seeking equitable and declaratory relief. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). It also applies detainer actions. See, e.g., Jackson Vv. Alt, 236 F. App’x 850 (3d Cir. 2007); McBride v. O’Brien, 646 F. App’x 277, 278 (3d Cir. 2016) (“McBride seeks damages under § 1983 for his incarceration resulting from the issuance of a probation violation detainer. To the extent that McBride alleges that his confinement on the detainer violates federal law, a favorable outcome would necessarily demonstrate the invalidity of his detention.”). Zavalunov alleges that the ICE detainer is invalid and was negligently lodged against him without a charging document, warrant, or deportation order. Zavalunov has not established that his claims relating to his removal proceedings have been called into question by the granting of a federal habeas petition or by any of the other methods described in Heck. Because Zavalunov has not alleged that the pre-requisites of Heck have been met, his claims regarding the alleged defective detainer will be dismissed. D. 180U.S.C § 3621(e)(2)(B) Early Release Benefit and RDAP 18 U.S.C. § 3621 directs the Bureau of Prisons to “make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” 18 U.S.C. § 3621(b). Under 18 U.S.C. § 3621, eligible prisoners are able to participate in substance abuse programming and treatment available while incarcerated in federal institutions. 18 U.S.C. § 3621(b)(5), (e). An inmate may be “eligible” for a program such as the RDAP if he is (1) “determined by the Bureau of Prisons to have a substance abuse problem,” and (2) “willing to participate in a residential substance abuse treatment program.” 18 U.S.C. § 3621(e)(5)(B). As an incentive for prisoners to successfully complete a treatment program, Congress allowed for a potential one-year sentence reduction, at the discretion of prison officials. 18 U.S.C. § 3621(e)(2)(A), (B). There are three essential components to the RDAP program. The first component is a residential unit-based component. 28 C.F.R. § 550.53(a)(1). This component is comprised of a course of individual and group activities provided by a team of Drug Abuse Treatment Specialists and the Drug Abuse Program Coordinator inside the prison in a separate treatment unit apart from the general prison population. /d. Upon successful completion of the residential unit-based component, some inmates may be referred to a second component of this program. During this second phase of the RDAP program, inmates are given counseling support while they transition back into general population. 28 C.F.R. § 550.53(a)(2). The final phase of the RDAP program is the community Transitional Drug Abuse Treatment program. 28 C.F.R. § 550.53(a)(3). Inmates who have completed the unit-based program and follow-up treatment, and are transferred to community confinement, must successfully complete community-based drug abuse treatment in a community-based program in order to graduate from the RDAP program. /d. For an inmate to successfully complete all components of RDAP the prisoner must participate in the community-based programming. 28 C.F.R. § 550.56(a). Throughout the course of this treatment, prison officials exercise broad discretion in making RDAP programming decisions.

A deportable alien is unqualified for the RDAP because he cannot participate in the Transitional Drug Abuse Treatment component of the program. Pursuant to 28 C.F.R. § 550.55(b)(1), ICE detainees are not eligible for early release. Therefore, because an ICE detainee is not eligible for early release and cannot be transferred to community confinement, they cannot participate in the Transitional Drug Abuse Treatment component of the RDAP. The record reflects that on September 7, 2017, an ICE Immigration Officer provided the BOP with a Warrant for Arrest of Alien and Immigration Detainer-Notice of Action indicating that there was probable cause to believe that Zavalunov is removable from the United States based upon the pendency of ongoing removal proceedings against him. (Doc. 20-1, pp. 4-7). The record further reflects that on January 4, 2018, Zavalunov was determined to be unqualified to participate in the RDAP due to his status as a deportable alien. (Doc. 20-1, p. 125). Zavalunov was properly excluded from the RDAP because inmates with an ICE detainer cannot participate in the community treatment program and consequently cannot be eligible for early release. See BOP Program Statement 5331.02 § 7(a), https:/Awww.bop.gov/policy/progstat/5331_002.pdf (last visited February 12, 2020); BOP Program Statement 7310.04 § 10(f), https://www.bop.gov/policy/progstat/7310_004.pdf (last visited February 12, 2020). Although Zavalunov is not eligible for the residential drug abuse program, he has not been precluded from participation in the non-residential drug abuse program during his incarceration. Moreover, Zavalunov does not have a due process right to rehabilitative programs. It is well-settled that “inmates do not have a protected liberty interest in either RDAP participation or in the associated early release benefit.” Reeb v. Thomas, 636 F.3d 1224, 1129 n. 4 (9th Cir. 2011), citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. ^[1], 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (determining that a prisoner does not have a constitutional right to be released prior to the expiration of a valid sentence). In Moody v. Daggett, the United States Supreme Court addressed the inmate’s argument that “the pending warrant and detainer adversely affect[ed] his prison classification and qualification for institutional programs.” 429 U.S. 78, 88 n. 9 (1976). The Supreme Court declined to grant relief for the denial of such benefits that are left to the “full discretion’ of prison officials, and so the inmate had “no legitimate statutory or constitutional entitlement sufficient to invoke due process.” Moody, 429 U.S. at 88 n. 9; see Becerra v. Miner, 248 F. App’x 368, 370 (3d Cir. 2007) (inmate assigned public safety factor of “deportable alien” had no liberty interest in his consequential disqualification for certain institutional programs). Additionally, Zavalunov has no due process liberty interest in early release following completion of the RDAP. Pursuant to Section 3621(e), and as an incentive for a prisoner's successful completion of substance abuse treatment, “[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.” 18 U.S.C. § 3621(e)(2)(B). To complete the BOP treatment program, and therefore to become eligible for early release, an inmate must complete all phases of the treatment program, including the community treatment component which follows the unit-based residential treatment program. 28 C.F.R. §§ 550.53, 550.55. As stated, pursuant to BOP policy, inmates with a detainer cannot participate in the community treatment program and thus cannot be eligible for early release. See BOP Program Statement 5331.02 § 7(a), BOP Program Statement 7310.04 § 10(f). Zavalunov’s inability to pursue early release due to his detainer does not implicate his due process rights because he has no liberty interest in a sentence reduction under Section 3621(e). See Becerra, 248 F. App’x at 370; Hugel v. Bledsoe, No. 08-1050, 2009 WL 1406252, at *4 (M.D. Pa. May 18, 2009). The Due Process clause itself does not create a liberty interest in early release under Section 3621(e) because his classification as a deportable alien and its resulting consequences of disqualification for certain rehabilitative programs, including the early release benefit, “is not outside what a prisoner ‘may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law.” Becerra, 248 F. App’x at 370 (citing Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002) (citations omitted)). Nor does Section 3621(e) create a liberty interest, because the determination whether to release a particular inmate is left to the discretion of the BOP. See 18 U.S.C. § 3621(e)(2)(B); Lopez v. Davis, 531 U.S. 230, 241 (2001) (“When an eligible prisoner successfully completes drug treatment, the Bureau thus has the authority, but not the duty, both to alter the prisoner’s conditions of confinement and to reduce his term of imprisonment.”). Because Zavalunov does not have a protectable interest in his prison classification, his qualification for rehabilitative programs, or early release, he cannot establish a constitutional deprivation as a result of the existence of the detainer. Defendants are entitled to an entry of judgment in their favor on this claim. E. Equal Protection Claim Zavalunov asserts that he was treated differently than “other non-foreign born individuals or non-jews.” (Doc. ^[1], p. 14). He appears to argue that his equal protection rights were violated because his immigration status prevents him from participating in the RDAP and precludes him from early release eligibility. (/d.). Courts have consistently recognized that the exclusion of prisoners subject to ICE detainers from participating in BOP rehabilitative programs and receiving early release benefits does not violate the Equal Protection Clause.? BOP regulations providing for such

V. Motion for Injunctive Relief Zavalunov filed a motion for preliminary injunction setting forth the same claims as those set forth in the complaint in this action. (Doc. 26). The Court finds that Zavalunov cannot meet the heavy burden of establishing that injunctive relief is warranted. A. Legal Standard Inmate pro se pleadings which seek emergency relief in the form of preliminary injunctions are governed by Rule 65 of the Federal Rules of Civil Procedure. Preliminary injunctive relief is “an extraordinary remedy” and “should be granted only in limited circumstances.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citing AT&T v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994)). In determining whether to grant a motion seeking preliminary injunctive relief, the Court considers the following four factors: (1) the likelihood that the movant will prevail on the merits; (2) the extent to which the movant is being irreparably harmed by the challenged conduct; (3) the extent to which the non-moving party will suffer irreparable harm if the preliminary injunction is issued; and (4) whether granting preliminary injunctive relief will be in the public interest. S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 374 (3d Cir. 1992) (citing Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir. 1990)). The Third Circuit clarified this standard. See Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir. 2017). As a threshold matter, the movant must establish the two “most critical” factors: likelihood of success on the merits and irreparable harm. /d. at 179. Under the first factor, the movant must show that “it can win on the merits,” which requires a showing that is “significantly better than negligible but not necessarily more likely than not.” /d. Under the second factor, the movant must establish that it is “more likely than not” to suffer irreparable harm absent the requested relief. /d. Only if these “gateway factors” are satisfied may the court consider the third and fourth factors and “determinel] in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.” /d. at 176, 179. B. Likelihood of Success on the Merits For the reasons discussed above, the Court finds that the BOP processed the ICE detainer in accordance with BOP Program Statement 5111.04, Institution Hearing Program and BOP Program Statement 5800.15, Correctional Systems Manual. Additionally, Zavalunov was found to be ineligible for RDAP participation and its early release benefits based on his status as a deportable alien. As such, Zavalunov cannot succeed on the merits of his claim. C. _—_Irreparable Harm Irreparable injury is harm of such an irreversible character that prospective judgment would be “inadequate” to make the moving party whole. See Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). An injunction will not issue “simply to eliminate a possibility of a remote future injury...” Acierno v. New Castle County, 40 F.3d 645, 655 (3d Cir. 1994) (citations omitted). Zavalunov has not presented any evidence that he will suffer irreparable harm by the denial of the injunctions. On the contrary, Zavalunov can file a habeas petition challenging the ICE detention and deportation orders. See Ziglar v. Abbassi, 137 S. Ct. 1843, 1862-63 (2017) (finding injunctive relief and a habeas remedy can constitute alternative methods of relief). Thus, the Court finds that Zavalunov has not shown an immediate, irreparable harm justifying a preliminary injunction. Because Zavalunov failed to “demonstrate both a likelihood of success on the merits and the probability of irreparable harm if relief is not granted,” the motion must be denied. Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (emphasis in original) (quoting Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987). VI. Conclusion Based on the foregoing, the Court will grant Defendants’ motion to dismiss and for

summary judgment. The Court will deny Zavalunov’s motion for a preliminary injunction. A separate Order shall issue. = co

Dated: February [4, 2020 J Péz\ Muity Robert D.. Mariani United States District Judge