United States v. Joaquin Foy

Foy, Appellant. Joaquin disciplinary attend his right his er that a hear- notice He received hearing. No. 10-4728. held, met with would be charges ing on his Appeals, Watson inmate assistant, requested an Third Circuit. conducted He was aas witness. He time. at the scheduled room hearing Third Circuit Submitted refused the room and to leave asked then 34.1(a) 27, 2015. March LAR oppor- an He therefore had participate. 5, 2015. Filed: Opinion Oct. (Even then, Officer attend. tunity to ask cell to Smith’s guards sent Wolczyk ask to call Watson he wished declined.) More- and Smith

any questions, that Smith

over, no evidence there is any or that attending from

discouraged contributed his control beyond

other factor before to his cell to return

to his decision hearing began. circumstances, is no there

Under the district claim that merit

arguable that Smith it concluded

court erred voluntarily his waived knowingly and hearing. disciplinary attend the

right appoint motion for

Accordingly, Smith’s appeal is is denied counsel

ment of Neitzke as frivolous.

dismissed

Williams, 109 S.Ct. 490 U.S. (1989) (holding L.Ed.2d 338 when it is based is frivolous

an action theory or legal meritless indisputably are clear contentions that factual

presents (stat baseless); 877 F.2d at Cooper,

ly for an may appoint counsel we

ing that that the showing litigant upon

indigent merit”). “likely

appeal of America STATES

UNITED

Joaquin Isa El-Mahde FOY a/k/a

Mary Gibbons, River, NJ, Toms Attor- ney Appellant.

Zane Memeger, David United States At- torney, Zauzmer, Robert A. Assistant Attorney Chief of Appeals, Kathy Stark, A. Assistant United States Attorney, Philadelphia, PA, Attorneys for Appellee. GREENAWAY,

BEFORE: JR., KRAUSE, GREENBERG, Circuit Judges. OF THE

OPINION COURT GREENBERG, Judge. Circuit

I. INTRODUCTION Joaquin Foy appeals from an order en- tered District Court in the Eastern District of Pennsylvania on December 2010, denying his motion filed under Fed. 60(d)(3) R.Civ.P. November seeking to vacate an order of civil commit- ment pursuant to which he was confined at that time and thus requesting that he be released. Although the Eastern District Court previously had temporary issued or- committing Foy, ders when'he filed it, and the Court denied com- mitment was to an order of the District Court for the Western District of Missouri. Accordingly, we conclude the Eastern District jurisdic- Court lacked motion, tion over and we therefore will vacate the order denying the motion and remand the case to that Court for consider transferring the motion Missouri, Western and it does not so to dismiss the motion. foreseeable in the competency that level of AND PROCEDURAL II. FACTUAL future. BACKGROUND determinations, the those Having made September case trace this

We ordered war- District Court a com- filed government Foy’s dan- to Butner assess den at Pennsyl- of FMC District Eastern in the plaint to institute and decide whether gerousness a fed- threatening Foy with charging vania respect with proceedings commitment civil of in violation official eral 4246(a). § to 18 U.S.C. pursuant to him thereafter, 115(a)(1)(B).1 on the Shortly § months, the Court the next several Over the alleged in conduct the of same basis Foy’s of additional assessments ordered a filed government the complaint, criminal information light of new dangerousness Pennsyl- of Eastern District in the petition order, significant on and, particularly in a of a sentence of seeking revocation vania 19, 2005, entered the Court September in the court a district probation Foy “shall be committed stating that order imposed on of Texas District Southern Prisons for Bureau of custody of the to the conduct- District The Eastern him. pursu- dangerousness of his reevaluation Foy’s mental to determine hearing ed a 4246(a).” App. at 78. ant to the criminal trial on stand competency to par- the the Court directed Subsequently, Foy was suffer- found that complaint hearing a to a date for agree to on ties or defect disease from a mental ing but, before dangerousness, address assisting in his incapable him rendered hearing, govern- the this the Court held him for a committed It therefore defense. Dis- the Eastern to dismiss ment moved on October days beginning of 120 period Foy by complaint against criminal trict order, 2003, the 24, date of the The Court mental condition. reason of his Attorney General custody of the 2005, 19, on December granted this 4241(d), authorizes which to 18 U.S.C. More than complaint. and dismissed in- mentally aof hospitalization temporary January later on years three peri- for a reasonable competent defendant District Court terminated months, to time, to exceed four od of imposed in the sentence included probation might the defendant determine in the Southern prosecution in the earlier criminal necessary capacity attain District of Texas. for an addi- to continue and proceedings Court dis- the defen- to Eastern District until either Prior time period tional gov- complaint, the or the criminal missing the improves condition dant’s mental Foy disposed transferred him are ernment against pending charges Prison- for Federal Medical Center Following entry of States according tó law. Missouri, in the West- Springfield, ers in transferred order, government December District of Missouri. On at But- ern Medical to the Federal Center pur- Butner”). certified (“FMC warden Springfield On ner, North Carolina 4246(a) suffering was suant February the Eastern so that his a disease defect be in- from mental continued Court found that risk trial, pose substantial release would stand that he could not competent so property damage injury or serious bodily not a that there and further concluded arrangements that suitable to another and would attain probability that he substantial discussion to opinion, we limit our relating but this many proceedings been 1. There have germane disposition this to our the ones various district competency matter this case. we describe in to those that courts addition custody for state were not Ac- us, available. in the record before since 2009 these cordingly, days on December two reports have recommended Foy’s condi- after the Eastern District Court dismissed However, tional release. notwithstanding criminal complaint against Foy, recommendations, Foy has not been government a petition pursuant filed released because he accept refuses to pos- Missouri, 4246 in the Western District of sible conditions on his release. seeking hearing on dangerousness. accept Rather than conditional

Foy moved to dismiss the Western Dis- has sought to be released uncondition- petition, arguing trict the Eastern ally by instituting proceedings both the Pennsylvania juris- District of had lacked Western District of Missouri and the East- diction ordered his reevaluation ern Pennsylvania.2 Thus, District of 4246(a) § 5, 2010, he was confined at August Foy filed a corpus habeas FMC Butner. The District Court in petition the in the Eastern Pennsyl- District of Western District of Missouri ruled on the vania seeking pursuant his release to 28 9, 2007, opinion May an 2241, § stat- U.S.C. but that Court transferred ing: petition to the Western District of 18, Missouri on August

A 2010. The review of the records West- and files ern District of Missouri clearly this case dismissed the peti- establishes that in its prejudice and, tion with on 19, 200[5], Foy’s appeal, order of September the Unit- the Court of Appeals for the Eighth ed States District Court for the Eastern Cir- cuit Then, affirmed the order District of dismissal. Pennsylvania did not order 4, 2014, on September defendant counsel committed under filed mo- provi- 4246, § tion on behalf in sions of but rather ordered that Western Dis- trict of Missouri seeking the Bureau of Prisons reassess whether order §a petition discharge pursuant appropriate. was Af- to 18 U.S.C. 4247(h). § occurred, ter that reassessment That court hearing the in- held a on petition stant the motion at properly Foy filed in this which testified and was court. represented by counsel. The court denied 21, the motion on October 2014. App. at 119. The Western District of Mis- subsequently souri hearing held a to ascer- foregoing As the proceedings tain dangerousness, any, on unfolded, Western District of Missouri Foy 12, 2007, September Foy ordered commit- pro se initiated proceedings in the Eastern 4246(d). ted Foy appealed, District seeking Court to secure his re- but the Appeals Court of Eighth First, 8, 2010, July lease. he filed a Circuit affirmed. vacate, aside, motion to set or correct sen- 4247(e)(B),

As tence under required by U.S.C. Because Springfield did facility medical not use the form thereafter standard then sent to district, the district court in the use for such a motion in Western District of reports Missouri annual con- directed its clerk to furnish cerning Foy’s form, mental condition and its rec- with that which contains information regarding ommendations regarding his need for con- consequence filing such a tinued commitment. Insofar as reflected motion. The Eastern District Court even- sought See, 2. He also has e.g., Foy relief in the Eastern District of Minnesota. v. U.S. and, Gov’t, District of North 15-1901, Carolina inasmuch as Civ. No. 2015 WL 2131410 he had been transferred to the Federal Medi- (D.Minn. 7, 2015). May Rochester, Minnesota, cal Center in in the capably addressed parties at 3. The Foy App. motion because tually dismissed the adju- time it in their We now within the these issues briefs. the form failed to submit him. afforded dicate the matter. corpus § 2241 habeas filed the After he AND III. JURISDICTION above, Foy, on refer to which we

petition OF STANDARD 2010, pro pleading se filed November REVIEW Judgment of to Vacate “Motion entitled 60(d)(3) Rule Fed. Commitment Civil jurisdiction pursuant to 28 We seeking in the Eastern R.Civ.P.” as the Eastern District 4. The App. immediate at release. Foy’s request for release denial of Court’s the Novem- District Court denied fully resolved the commitment from civil on December 2010 motion ber Bryan v. before it. See Erie litigation bringing the case to us. Foy appealed, Youth, F.3d & Cnty. Children Office of counsel for appointed this Court panel A (3d Cir.2014); Penn W. As 320-21 and, by dated March order socs., Cohen, 123-24 Inc. v. at least the parties discuss directed (3d Cir.2004). Though the Eastern Dis following issues: preclude did not proceedings trict (1) to vacate Foy’s ‘Motion moving discharge for under 18 from later pursuant of civil commitment judgment 4247(h), possibility § does not U.S.C. 60(d)(3) can Fed.R.Civ.P.’ be to Rule finality of the Eastern undermine the Dis (b) 60(b) (a) motion, considered Rule See United States trict Court’s order. v. relief, habeas attempt to seek and/or (3d Stewart, 266, 272-73 Cir. 452 F.3d (c) to 18 pursuant a motion U.S.C. 2006). 4246(e) from confine- discharge § for (2) whether, hearing; if ment or for a course, jurisdiction over our this Of plea for habeas Foy’s motion includes that the Eastern does not establish appeal (a) relief, under 28 U.S.C. proceeds jurisdiction in the District Court had first 2241, 2255, § other § or some 28 U.S.C. Accordingly, government place. (b) and whether avenue provision, free to District been contend is available to proceeds under which he jurisdiction have over Court did not Bu States v. generally, him see United exactly it and does motion (9th dell, n. 9 1141 & 187 F.3d contention, we considering that. Cir.1999); Phelps v. United see also Bryan, plenary exercise review. (8th Gov’t, 735, 737 Fed. 15 F.3d States n. 1. Because filed his F.3d at 321 Cir.1994), in the District Court and/or se, liberally it and pro motion we construe Pennsylvania, for the Eastern District 60(d) only the Rule label that consider Padilla, v. U.S. see Rumsfeld any it other bases he attached to but 447[, 124 S.Ct. 159 L.Ed.2d given the Eastern District could have (3) (2004); whether, if 513] jurisdiction over the motion. See Court and could not do so seeking habeas relief Miller, 197 F.3d 647- United States in the District Court for the Eastern (3d Cir.1999). so, If, we doing after Pennsylvania, District of the District District Court that the Eastern conclude filing Court should transferred have it jurisdiction, we must direct lacked justice, in the interest of see 28 U.S.C. addressing without (4) dismiss motion 1631; § dictates or transfer the case 4246(e) the merits of the case § 18 U.S.C. have been followed pursu- of Missouri District in this in the District to Western case Court. § ant 28 U.S.C. 1631. See Babcock § & commitment.” 4247(h); 18 U.S.C. see Co., City Co. v. Kan. Ry. S. Hedrick, Wilcox Archuleta v. 365 F.3d (3d Cir.2009). 134, 137 (8th Cir.2004) (“Archuleta in custody reason of a commitment order issued IV. DISCUSSION the District of Utah. Only that court ... panel originally When this Court may grant the statutory seeks, relief he appeal this pos- reviewed discerned five either conditional or unconditional re sible bases for the Eastern District Court lease.”); Budell, jurisdiction to have had over request (9th 1137, 1142 Cir.1999) (stating that com release his November 2010 mo- mitted individuals hospitalized “will remain tion, and, as we explained, it directed until discharged by ordered the court that parties to address them their briefs commitment”). ordered the Accordingly, (1) they have done so: 18 U.S.C. Foy 4247(h) could not bring §his (2) 4247(h)3; 60(b); (3) Fed.R.Civ.P. in the Eastern of Pennsylvania District (4) 60(d); 2255; Fed.R.Civ.P. 28 U.S.C. because when he and, filed the motion (5) 2241. We address indeed, it, when the Court denied he was these bases in turn and conclude that none pursuant committed September 12, to the them afforded District 2007 order of the Western District of Mis jurisdiction Court determine it should souri. grant Foy’s motion for release from civil Foy contends that the Eastern District

commitment. We further conclude that jurisdiction Court had based on Sep- its we should remand the case to the Eastern tember order “shall be determine whether that committed custody of the Bureau Court should transfer the case Prisons for reevaluation of his dangerous- 1631 to a different court that 4246(a).” ness § to jurisdiction would have had over re- App. at 78. But quest i.e., for as the the Western Western District District noted, of Missouri of Missouri. when the Eastern Dis- order, trict Court entered that it “did not 4247(h) § A. 18 U.S.C. [Foy] order under provi- committed 4246, § sions of but rather Foy primarily ordered that argues ap on this the Bureau of peal that his Prisons reassess motion for release whether a should be § petition treated a 4246 was appropriate.” as motion for discharge under 18 Id. at 4247(h). 4247(h) § 119. Unlike the District Section author Western of Mis- souri, izes a committed to the Eastern individual file a motion District Court has not hearing a to issued a final order of determine whether he commitment with discharged 4246(d). should be respect Foy pursuant § from the commit to to However, facility. Moreover, ment may motion filed his motion un- 60(d)(3) only be filed “during person’s such com der Rule on November mitment” with “the court ordered the longer he no was committed under the panel's parties 3. The regarding order to the longer pose individual’s release no would a 4246(e), which § issues to discuss referenced bodily injury substantial risk of or serious (cid:127) However, 4247(h). § . than rather property damage unlike to another. Given that 4247(h), 4246(e) § § applies only when the triggering concedes that this event did not occur, director of the facility appellant’s commitment flies a see bf. at 44 n. we attesting certificate committed indi- possibility consider instead the for relief un- 4247(h). vidual has recovered the extent that der 134 Fed.R.Civ.P. justifies relief.” order reason temporary Court’s 60(d) (6). savings 60(b)(5), is a Rule September commitment clause, Rule 60 does clarifying a to file individual

authorizing a committed things, among other power, a court’s limit “during person’s such discharge motion action to re- independent to “entertain that ordered with “the court commitment” order, or judgment, 4247(h) party from a lieve a commitment,” offers an ave- 60(d)(1); see Fed.R.Civ.P. proceeding.” that or- only in the court nue for relief (3d 157, 166 Danberg, 656 F.3d v. which Jackson under the commitment dered 60(d) Cir.2011) (“Rule a court to permits he filed his committed when petitioner was Archuleta, action to relieve independent at 649. entertain an petition. ‘pre- judgment a order party from clear that analysis makes foregoing Our ” justice.’ miscarriage of grave vent earlier, no Court’s District’ the Eastern Beggerly, 524 (quoting United com temporary applicable order longer 1862, 1868, 141 38, 47, 118 S.Ct. U.S. jurisdiction it mitment, afford did not with (1998))).4 Nevertheless, Rule 32 L.Ed.2d challenge to his confine to entertain court not vest a district itself does his November at time filed ment a motion to consider jurisdiction such with Bak States v. motion. Cf. See Fed.R.Civ.P. independent action. or (6th Cir.1986) er, F.2d (“These limit the not extend or do rules that, notwithstanding its decision (holding or the the district courts jurisdiction of or court’s commitment vacate district courts.”); Palkow in those venue actions jurisdiction to der, appeals lacked court of Inc., Transp., v. CSX because subse of defendant order release Cir.2005) (6th court (stating that district with initiated proceedings been quent statutory basis” independent “an required 4246(a) in district to him under respect claim framed jurisdiction over to exercise confinement, thereby stay of defendant’s action). independent Rule 60 release); Hardy, United States ing his (D.Me.2011) that a dis 412-13 it be clear F.Supp.2d Ordinarily, would over a jurisdiction earlier or (rejecting argument court’s trict court would 4241(d) action pro independent or an Rule 60 motion der of commitment ini continuing jurisdiction judgment because seeking relief from vides with ancillary jurisdiction after that evaluation the court will have dangerousness tiate ended). judgment challenge to its own consider a commitment 46, at Beggerly, 524 U.S. or order. See (d) 60(b), B. Fed.R.Civ.P. R.R. Mo. (citing Pac. 118 S.Ct. at 1867 of 522, Co., 505, 4 Ry. 111 jurisdic v. Mo. Pac. U.S. attempt to assert (“The (1884)) 60(b) (d) 583, 592, 28 L.Ed. 498 S.Ct. or based on Fed.R.Civ.P. tion 60(b) suggest wrong ... au Government is Rule for reasons. fails similar in brought the same independent action relief from a to move thorizes a for party requires an original lawsuit order, court as the proceeding based judgment, final jurisdiction.”); Bud independent as basis grounds, including, specified various on White, 244, Blinds, F.3d 251 here, v. get Inc. because applicable contends is Cir.2008) (“The (3d a court to power prospectively judgment] “applying [the 60(b) own earlier Rule to vacate its “any other invoke equitable” or for longer is no attempting 60(d)(3), to as- frames his motion brief Foy's Rule pro se motion cited by as authorized action power independent sert an preserves to "set aside which a court’s court,” 60(d)(1). his Rule judgment on but a for fraud judgment unquestioned.”). at- such an independent ground jurisdic- tempts rely jurisdiction, on this basis for tion here.5

pointing to the initiation of commitment §§ C. 28 U.S.C. 2255 and 2241

proceedings § under 18 U.S.C. 4246 in the Eastern District Court and its September Foy correctly concedes that the other 19, 2005 committing order him for a reas- suggested two grounds for Eastern Dis dangerousness. sessment of his jurisdiction trict As dis- that we set forth in our above, 28, however, cussed March the commitment 2011 order inapplicable. are He rely cannot 2255, order under which was confined when which a “prisoner authorizes 18, motion, custody he filed his November challenge sentence” to sentence, therefore the be order from which he sought cause currently is not serving a sen relief in asking for his immediate Archuleta, tence. See 365 F.3d at 648 had been issued in the Western District of (stating civilly committed individual not el Missouri, by not the Eastern District igible 2255); Budell, for relief under Court. (same). F.3d at 1141 Nor can Foy frame emphasize We that the Eastern District his request for release as a corpus habeas earlier order temporary Court’s commit- petition under 28 U.S.C. 2241 only as he not provide jurisdiction ment did it with pursue could such relief in the district in a revisit distinct order of en- commitment confined, which he was he filed Baker, tered court. different See 807 the leading to the order now on F.2d at 1325. Though we recognize that appeal he was not confined in the Eastern may there be circumstances which a District Pennsylvania. Rumsfeld jurisdiction district court has over a Rule Padilla, U.S. 124 S.Ct. 60 motion or an independent action seek- 2724, 159 (“Whenever (2004) L.Ed.2d 513 ing relief from judgment entered § 2241 petitioner habeas to chal seeks court, another such as party where a to lenge present physical custody within initial proceedings registers a judgment States, the United he should name his obtained another court to 28 respondent warden' as petition file the Blinds, Budget see confinement”). in the district Thus, 251-54, at 254 n. Foy does point to regardless of how we request frame course, 5. Of F.Supp. (D.Minn.1989). Eastern District Court would 808-09 But see jurisdiction have had challenge over a Godinez-Ortiz, to its September order temporary com- (9th Cir.2009) (holding that district mitment, jurisdiction but such would not have court in Southern District of California acted authorized it to order release from his authority temporarily within its returning commitment, current the identified aim of his to North facility defendant medical Carolina pro Though se motion. we do not reach a facility for that to evaluate defendant’s dan- point conclusion on the as we have no need to gerousness and decide whether to issue certif- so, recognize do we arguably that the Eastern dangerousness 4246); icate pursuant to District Court authority lacked to the initiate Wheeler, 633, F.Supp. v. 744 preliminary § 4246 proceedings commitment 635, (E.D.Pa.1990). 639-40 But even if we because it was not "the court for the district the concluded District Court Eastern [Foy in which was] confined” when the Court initiating proceedings erred in such our con- entered the order as was confined in FMC clusion not would invalidate the Western Dis- 4246(a); Butner at that time. 18 U.S.C. separate § trict proceed- of Missouri's 4246 see, Charters, e.g., United States v. F.2d 863 ings resulting and its order of commitment. (4th Cir.1988) (en banc); Baker, Baker, 807 F.2d at 1325. 1324; Steil, F.2d at United States v. not it did have it believed District Court because release, the Eastern it determined jurisdiction it on .the merits or because considered not have should In the meritorious. motion was not if it did so. the circumstances, the will remand matter we Pursuant to D. Transfer Court to consider Eastern District § 1681 the the case to West- to transfer whether that the Eastern determination Our District of Missouri.7 ern jurisdiction not have Court did this of whether open question leaves CONCLUSION V. to transferred should be case reasons, we va- foregoing will For the District of § 1631 to Western order entered on the District Court’s cate jurisdic have as that court would Missouri denying Foy’s Rule 60 December do not the motion.6 We tion to entertain the case to the and will remand District Court Eastern know for it to Eastern District Court consider possibility because the considered the case to whether to transfer West- 7, 2010, December in its order Court If the Eastern ern District of Missouri. Foy’s motion of November denying not transfer the case District Court does release 2010, seeking his did immediate juris- the motion for lack of should dismiss denying the mo explanation an give not their own parties The will bear diction. not know if Accordingly, do tion. we appeal. costs on this denied the motion District Court course, judi- litigation continuation wastes because its that the Eastern 6. Of contends moving no to jurisdiction [him] a transfer closer so cial resources while District Court Holder, necessary. goal.” LeBlanc [his] was not (4th Cir.2015). ordinarily might Though we not comment Moreover, clear that it would be it seems simply merits of the transfer issue on the judicial party to waste of resources futile the Eastern District would remand the to case District of transfer the case to the Western to transfer the case Court to consider whether year on Missouri as within the last October we District of Missouri will to the Western denied the relief he that court Judge view of on the merits in comment Campbell Pers. here. See seeks Office of point partial We out initial- Krause’s dissent. Cir.1982). (3d Mgmt., 309 n. 6 accept on his ly refuses to conditions Moreover, justice does re- the interest not though he could have been re- even Foy’s rights protect quire a transfer here to early willing had been as as if he leased regarding Foy changes mind his if his because Although Judge indicates Krause' to do so. relief, that the desired East- determination be release could en- that conditions jurisdiction ern District did not them, even if he not consent to forced does pose to him if he initi- not obstacle would sig- agree to such conditions refusal to 4247(h) com- a new case authorizes ates as regard himself as nals that he would not file successive motions mitted individuals to and forewarns of trouble bound them to government discharge has .and Moreover, if he does come if he is released. ongoing duty release or a conditional seek abide of release there conditions facility. placement in a state The for him steps consequences before could be serious differs from a case here situation therefore the conditions. could be taken enforce necessary preserve is where a transfer sought regard, Foy’s 60 motion this Rule interests, litigant’s such would substantive nothing less his immediate uncondi- than a statute of be the situation when limitations custody. Given tional release from sole litigant required run so that securing aim of and unconditional immediate relief, proceeding seek a new institute accept any- unwillingness to release and his subject less, complaint be to dismissal justice would arguably thing "the interests of untimely. by terminating be] best served this [would KRAUSE, Judge, Circuit in concurring placement able Foy in a state facility, part dissenting in part: and such as a group home or similarly less restrictive setting.

Joaquin Foy’s case is nothing short of Kafkaesque and by cries out to be heard reasons, For these while I agree with competent jurisdiction. some court of De- majority that the District Court for the spite having trial having stood and not Pennsylvania District of lacked crime, been Foy convicted of a has been jurisdiction over Foy’s motion to vacate his in penal confined federal institutions con- civil commitment and have no doubt that tinuously since 2003. For the last six of the District Court will carefully consider years, Foy’s civil commitment under whether justice” the “interest of standard the Insanity Defense Reform Act of 1984 requires a transfer ato court that does (“IDRA”), 17, 4241^7, §§ 18 U.S.C. jurisdiction, I see no reason not to despite continued that a panel fact expedite process by remanding with experts repeatedly has recommended transfer, instructions to aas transfer in he be released poses because no danger he this clearly case is so “in the interest of if others released prescribed under a justice.” 1631. point, On this care, regimen of and the fact despite I respectfully dissent.1 expressly the IDRA provides in such cir- cumstances that a court “shall ... order I. conditionally [the be individual] dis- Whenever a federal court jurisdic- lacks charged prescribed under a regimen of action, tion over a medical, civil in psychiatric, or states psychological care mandatory “shall, 4246(e)(2)(A). terms that the court treatment.” it if is in justice, the interest has also raised serious concerns that transfer such action” has not to another complied Government with the federal court in which statutory safeguards the action designed prevent could brought have been at the federal (em- indefinite time it incarceration under the was filed. 28 U.S.C. IDRA, including added). the requirement that it phasis This may determination exert all reasonable efforts find a suit- involve some undertaking “limited review Although majority imposition remands for the Dis- extra-statutory ernment’s of an question trict to decide the of transfer express agreement condition of his instance, oddly proceeds first sug- conditions of that have never been gest may in dictum presented that transfer not be not to the Western District of Missouri. (1) warranted because is not entitled to For these reasons and those described more below, the unconditional prefer, fully release would but justice” the "interest of standard release; (2) because, only to conditional leaves no room for debate that the courts view, majority's transfer would be futile as our Circuit promptly should transfer this ac- the Western District of Missouri has denied tion to the Western District of Missouri so (3) past; unconditional release in the and that the merits of substantial claims can hypothetical possibility because the remains be considered delay further without could initiate a competent jurisdiction; new action in Mis- court of matter attempt souri and recognized to file successive the transferee court as war- pro through counsel; se or ranting appointment counsel he can obtain Foy's however, Notably, majority six-plus one. years appears does not to be what unautho- that, below, dispute as set forth detail prolonged un- rized indefinitely detention are not IDRA, Foy’s der the by Foy’s conditional inability procedural release on to overcome bar- appears this mandatory record to have been filings inability riers to successive or his denied, unlawfully thus to have been present arguments pro coherent se motions statutory has raised compelling very and due presented by about the serious issues this here, process arguments concerning the Gov- case. has [he] where “rare circumstances claims. underlying merits” of the

of the no or there are (7th residence permanent no Seiter, 173 F.3d Phillips v. him for accept willing state authorities Cir.1999). all, “in the inter After it is not 98-225, at 250 Rep. S. commitment.” a claim to transfer justice” est United, (1983), in 1984 U.S.C.C.A.N. reprinted States, Adeleke v. fails. See plainly 3182, 3432; Lapi, also United States see Cir.2004). However, (2d 144, 152 355 F.3d (7th Cir.2006) (observing relevant reviewing the clear after it is narrowly” ap- § “drafted 4246 is and the facts statutory scheme circumstances). The only in rare plies significant claims relate to that his case important two IDRA therefore contains viola statutory and constitutional potential indefinite prevent statutory safeguards a decided they should be tions and First, facility. in a federal incarceration to hear them. that is able court predicated must be detention ongoing in federal detention Foy’s incarceration released, dangerousness person’s on the began IDRA under the centers a con- and, second, has the Government incompetent to be he was found when ar- to find suitable tinuing responsibility verbally threatening a fed- trial for stand custody care. 18 for state rangements initially incarcerat- Foy was eral official.2 (d)-(e). 4246(a), Foy alleges that § U.S.C. § which allows under 18 U.S.C. ed neither complied with has Government criminal centers to hold detention federal little in the rec- there is evidence because recovery period while for a defendants appropriate steps to that it has taken ord to stand temporarily incompetent they are conditional re- appropriate an effectuate provides IDRA further The trial. it has not satisfied its Foy and lease for under 18 may continue federal detention find, seek, a suit- much less duty even to temporary § at the end of this U.S.C. Foy. placement for able state mental if the defendant’s recovery period permit as to improved has not condition A. U.S.C. go forward. 18 proceedings statutory to the first of these Turning 4241(d). Thus, § the District requires the IDRA safeguards, detained under ordered that be reports on a de- file annual Government incompetent § 4246 because he was justify his on- condition to tainee’s mental there no substantial stand trial and commitment, U.S.C. going be competency 'that his would probability that, 4247(e)(1)(B), requires § in the foreseeable future. Short- restored longer dangerous under is no detainee thereafter, dismissal of the ly granted care, of medical prescribed regimen criminal case charge, criminal and the sole detaining facility must initi- of the director closed. His deten- against Foy was then the district discharge procedure with ate a 4246, however, continued. tion under 4246(e), court, and the court af- detainee’s civil commit- that ordered the ongoing

But detention release, 18 elapsed must order his conditional recovery period the initial ment ter 4246(e)(2)(A). 2009, the if a Since only a last resort —it is available is by the Risk Assessment reports annual ongoing danger to others person poses Court, Justice, sitting Supreme phrased in terms of "treatment 2. The IDRA is again (“Again and we have by designation) facility,” "treatment” in a but this suitable recognized center] medical [federal period repeatedly equated to incar- has been Ciccone, that one confined penal institution and Henry ceration. See incarceration.”). J., (8th Cir.1971) (Clark, there suffers Associate added). Panel at the U.S. (emphasis Medical Center for Fed- The statute does not Prisoners in Springfield, eral Missouri provide hardly seems to leave have repeatedly concluded that re- imposition room by a facility of its lease would not create a substantial risk requirement own that a agree detainee in danger to property others or the writing by to abide of conditions of of release. appropriate others with the medication and Cf Shalom Pentecostal Church v. . care.3 The Panel therefore has recom- Acting Sec’y Dep’t Sec., U.S. Homeland of mended in each reports of the last five (3d Cir.2015) (striking as available the record that be condi- ultra vires an agency regulation imposing tionally released to a group home or simi- requirement additional on criteria for entity structured larly community. entitlement to visa issuance on ground Despite recommendations, the facili- requirement that such was inconsistent ty holding Foy has not initiated proceed- plain statute). with the language of the ings him, release remains de- Second, why doesn’t the IDRA itself tained. squarely resolve the pur- Government’s The Government’s it retort —that lacks ported concerns that it lacks assurance of sufficient assurance will fulfill his con- compliance future with the condi- ditions of release because he wants an tions of his release or that those conditions unconditional unwilling release and is now might somehow be unenforceable without to sign a certification of compli- future Foy’s signature on a document? An' en- ance—seems enough reasonable on first forceable court order would seem disposi- impression. however, inspection, Under it tive on point, this and the statute here questions raises serious under the IDRA expressly requires not only that the Dis- and the Constitution that warrant careful trict Court “shall ... order that [the de- scrutiny by a court of competent jurisdic- be conditionally tainee] discharged under a tion. prescribed regimen medical, psychiatric, First, is predicating Foy’s how release or psychological treatment,” care or but on agreement his written to the conditions “order, also that the court as an explicit permissible given release plain lan- release, condition [the detainee] guage states, of the IDRA? statute The comply prescribed with the regimen of mandatory terms, facility once the medical, psychiatric, or psychological care director has that a determined detainee 4246(e)(2)(A)- or treatment.” 18 U.S.C. will pose a threat society if released (B) added). (emphasis prescribed regimen care, of medical Indeed, position by the director taken promptly “shall the Gov- file a certifi- ernment here —that a signed cate that effect” with the court that certification commitment, civil is somehow needed ordered to ensure future 18 U.S.C. com- 4246(e) added), (emphasis thaty pliance with the fol- conditions of release— lowing hearing ironically to confirm safety disavowed the Govern- conditional and repeatedly rejected court shall ... ment “the context, where, [the order be courts in the conditionally detainee] criminal until discharged prescribed under a regimen repeal 4163-64, §§ its medical, psychiatric, or psychological care in similar provided for the terms mandato- 4246(e)(2)(A) or treatment.” ry specified release on conditions of in- brief, seal, states in his Reports, which was not filed Review which were filed under seal, that the annual Risk Assessment Appellant’s reach this conclusion. Br. 12. re- upon conditions those mate will violate terms of full served their had mates who Thus, that a detain- may well be litigation subsequent lease. imprisonment. conditions enforceability agree of those conditions to such “refusal ee’s over sign regard himself who refused he would not signals inmates against certi validity pre-release of to the of trouble challenged by and forewarns them bound courts routine compliance, of the n. 7. Maj. Op. fications 136 released.” if he is come the that the Government ly -required sided with writing is no such But when was irrelevant signed a form of defendant, absence a a convicted release of the as were enforceable and the conditions should con- jurisdiction competent of court release. statutorily mandated of the part IDRA the it accords with sider 369 F.2d Willingham, v. See Robinson for that extra-statuto- and the Constitution Cir.1966) (10th has fixed (“Congress 689 civilly imposed to be ry precondition mandatory a attached to the conditions con- been persons who have not committed effect are not those conditions release and any crime. victed of sign failing to signing or by the releasee ed impris- from Third, of release conditions Reid, 194 agreement.”); Hicks a release a conse- typically enforced onment are (D.C.Cir.1952) (rejecting pe 329 non-com- from future that follows quence sign to failure argument his titioner’s conditions, and not with those pliance of forth conditions setting the a document un- unless and detention through indefinite com obligation to him of relieved release writing to abide inmate commits til an only created statute “not the ply because 18 U.S.C. conditions. See by those con imposed release but also right the to 3583(e)(3) of su- (allowing for revocation man are “[b]oth such ditions thereon” finding a the upon release pervised by diss can be avoided datory neither release). of violated a condition defendant ent”).4 norm, by IDRA with this Consistent inmate’s these cases did In none of of contemplates possibility terms its agreeing to a sign to document refusal conditions of non-compliance with future either conditions of release by abide single to a mechanism specifies release and man- release delay the provide a basis to conditions; revo- those arrest enforce or ren- of the statute by dated terms facility to which the if the cation of release unenforcea- of release der those conditions that the indi- reports individual is released ascertain, I can today, as far as ble. Nor the condi- comply to with vidual has failed of Prisons of the Bureau policy is it the 4246(f). then How tions. who has served to release an inmate refuse enforce- facility’s prophylactic does imprisonment because out his term any opportunity preempting assur- sign a written unwilling inmate is ment — refusing certify by non-compliance by conditions of that will abide ance release as for conditional qualified detainee if there is release —even supervised his 4246(e) comport with required in- that the to be concerned good reason — (S.D.Fla.1985) Parker, F.Supp. 1312 F.Supp. 254 603 4. See McMillan also ("Plaintiff's sign Certificate (M.D.Pa.1966), aff'd, refusal being to his curiam) ("The Mandatory (3d Cir.1967) Release irrelevant mere (per fact enunciat- subject terms and conditions sign the certificate of petitioner did not Congress the conditions has fixed ed therein. him of the will not relieve mandatory release mandatory and those release to a His attached imposed release.... on said conditions failure or not affected re conditions are subject conditions release was those the release sign releasee to signed refusal gardless whether the certificate Comm’n, agreement.”). not.”); Parole Donahue v. U.S. 4246(e)(2)(A), 4247(h). §§ either the statute or the Af Constitution? sum, argu- all, civilly persons ter committed remain ably irrational choices of a person with entitled to process, due Foucha v. Louisi illness, mental where irrelevant to the stat- ana, 71, 80, 504 U.S. 112 S.Ct. 118 utory qualifications for conditional (1992); Texas, L.Ed.2d 437 Addington v. justify cannot facility director’s refusal to 99 S.Ct. U.S. 60 certify, less much a federal court’s disre- (1979), L.Ed.2d 323 detaining such gard of the statutory mandate or its toler- persons indefinitely on the basis of a re deprivations ance of liberty greater than quirement is neither authorized necessary. Greenholtz, at U.S. necessary statute nor to enforce the condi 11-12, 2100; Wolff, S.Ct. at U.S. might tions of release well be viewed as 556-57, S.Ct. arbitrary capricious government ac Fourth, even if it permissi- were deemed tion, Greenholtz v. Inmates the Neb. cf. of ble to Foy’s condition release on pre- his 1, 11-12, Penal Complex, Corr. & U.S. release assent prescribed regimen of (1979); S.Ct. 60 L.Ed.2d 668 care, medical is how the Government’s in- McDonnell, 539, 556-57, 418 U.S. Wolff in terest ensuring compliance with this (1974). S.Ct. L.Ed.2d 935 (not condition to mention presumable its suggests, The Government and the ma- interest in reducing by at least one the jority seems to significant, by find that ranks of prison population) actually release, on insisting Foy unconditional ap- served requiring Foy go to through the pears to have made a choice of deliberate motions of signing some saying form that no over Ap- release conditional release. he promises to Indeed, self-medicate? 13; pellee’s Maj. Br. n. Op. 136 n. 7. assuming even the detainee is a rational much, But the argument proves too for actor, what meaningful assurance of future while rational might go a actor well compliance any would signature detainee’s through the signing motions of a form actually provide on the one form on which necessary to secure his release from a his release prison depends? Instead, from federal prison, whatever his actual inten- if the truly Government is in interested tions, argues no one that making assuring Foy’s future compliance with the rational choices or is free of mental illness. condition of medication, continued wouldn’t Indeed, very is the he reason has far make more for expend sense it to de been recommended for release conditional minimus resources identifying a re- less and the reason that the IDRA speaks in strictive facility but controlled state to mandatory terms that do not on turn which can be released and purported where “choice” of the detainee. Re- medication properly will be administered— gardless of civilly whether a committed IDRA, solution also mandated irrationally individual insists uncondi- see deploy yet tional to prose- or even more irrationally release prefers infra —than yet in jurisdiction to cutors another prison remain a federal litigating, over a less effect, facility, legal significance restrictive state once is deter- mined pose virtually not to a failure to affix a danger upon meaningless sig- release (as Yet, with appropriate years conditions nature to a form six document? next as discussed, reports Foy’s case), attest despite IDRA the logic ap- the' of this that the facility proach mandates director certify, despite the Government’s stat- 4246(e), utory it, obligation pursue the District raises Court, upon confirmatory hearing, order substantial claim that the Government conditional U.S.C. violated requirement this IDRA well. 4247(h), allows

B. which to 18 U.S.C. of the director given the refusal counsel— that the Gov- requires IDRA The also detained to facility Foy was where to ex- periodically continue “shall ernment conditional required certificate file the cause ... efforts ert all reasonable hearing to for a make motion release —to person is domiciled [where State Foy from his com- conditionally discharge responsibility such to assume tried] was acknowl- mitment, and the Government care, and treat- custody, person’s for the for the West- the District Court edges that 4246(d). There is ment.” 18 U.S.C. Missouri, the court ern District in the record single only a reference Septem- Foy’s civil commitment ordered respon- such assume to have a State effort jurisdiction over ber would letter, a 2007 treatment: sibility if this case claims under section Office of Mental Pennsylvania from the to the Govern- According is transferred. deny- Abuse Services Health & Substance however, be futile ment, a transfer would Pennsylvania State entry to a ing Foy re- there “has the district court because The treatment. inpatient Hospital exactly same denied peatedly that it acknowledged in 2007 Government Appel- litigate here.” wants by statute contact obligated support 53. The record does lee’s Br. Pennsylvania request of Commonwealth that contention. in the Foy, nothing for but a transfer any- that effort suggests record undoubtedly has filed numer- Foy While the or that perfunctory thing more than in Dis- for relief the Western petitions ous any whatso- made effort has Government elsewhere, in pro- and trict of Missouri then. obligation since to meet this ever suggests in record pro se what the ceeding pointing to substantial Foy thus alleges, Foy has proceedings, is all one of those but record, the Govern- in the support the coherently present not been able to statutory violating his ment has been here, courts, under- so claims raised other IDRA. under the rights of the merits standably, have not reached Gov’t, See, Moreover, garden-variety are not these v. U.S. e.g., those claims. *2 15-1901, Because of the Govern at statutory claims. 2015 WL No. IDRA, Foy 2015) (D.Minn. the alleged (“Foy’s petition violations of May ment’s least, is, indefi subject ongoing say to an and corpus has been relief habeas without years on A deal of the good nite incarceration end to follow. difficult availability of con- a conviction and with documents petition accompanying left facilities allegedly magazine restrictive state photocopies less sist of books earlier, the cir articles, as noted relevant to unexplored. And none of which appears continued civil com Much any possible cumstances claims under signifi custody remainder, assumedly raise written mitment federal of the statutory process himself, nearly incomprehensible.”); and due concerns. Foy cant is 1780; Foucha, 80, 112 Jett, 14-5063, at 504 U.S. S.Ct. 2015 WL No. 2015) (D.Minn. (“Foy’s peti- at 99 S.Ct. 1804. Addington, 441 U.S. Feb. at *1 clearly “in the claims is In the Dis- Resolving decipher.”). difficult to tion is hand, case, justice.” the other interest trict this dedicated the benefit II. painstak- who diligent appointed counsel and detention ingly court challenges assembled raise these Foy may properly country records across center the IDRA from to his detention under potential legal and identified claims under ered on the merits appear vastly diminish- byzantine provisions of the IDRA. ed Indeed, absence of a transfer. careful Counsel’s research and zealous ad- scenario, the best transfer, case absent a vocacy present enabled her to substantial Foy, proceeding pro se or somehow challenges Foy’s ongoing incarceration securing appointed counsel, files a new Thus, for the first time in this Court. the petition re-raising the argued here; claims presented issues fairly here cannot be arguments those are cogently presented to characterized as the same ones that Foy the District Court for the Western District has unsuccessfully raised pro Missouri; se of and that court eventually filings. grants Foy’s conditional release —a pro- cess that months, would entail if not years, addition, despite majority’s impli- delay additional in his conditional re- otherwise, cation presented the issues here Worse, lease. may never come pass, are not the same as those in Foy’s raised and no court will consider the merits of single prior counseled proceeding that was Foy’s significant statutory and constitu- initiated in the Western District of Mis- claims. simply Transfer is tional the most September souri on 2014 and dismissed efficient just way of ensuring that an shortly thereafter. itWhile is true that individual, who in our Circuit received the the district court there “denied counsel, benefit of devoted oppor- here,” Maj. he seeks Op. 136 n. 7 relief tunity to have his claims expeditiously ad- added), (emphasis case, it is also the dressed in appropriate jurisdiction. reflected in the transcript proceed- of that ing, appointed counsel appears Finally, there is no merit to the Govern- accepted the Government’s conten- argument ment’s that we should decline to Foy tion that required agree order a transfer because did not re- conditions of his release prerequisite as a quest that relief this case. As even the to conditional release and therefore fo- majority recognizes, given cused trying his efforts on to elicit on the contended that the District Court here had Foy’s agreement record explanation or jurisdiction, argument his of course has disagreement, Supp.App. see 178-85. In been that a transfer necessary. was not short, the Western District of Maj. event, Missouri has Op. any 136 n. 6. In the statu- presented never been with the statutory tory language 1631 compulsory is process arguments due by raised requires “shall, that the court if it inis Foy’s counsel in gives the case that justice, rise to interest of transfer such action” to this appeal. jurisdiction, a court of competent if even it has not been by asked to do so either Nor is transfer rendered futile I.N.S., party. Rodriguez-Roman possibility theoretical that Foy could initi- (9th Cir.1996) (“The n. Missouri, ate a new proceeding in with a duty imposed on the court mandatory. successive seeking release under It must determine whether transfer is in 4247(h). assuming Even Foy were justice.”); the interests of see also Phil- somehow able to overcome procedural lips, 173 F.3d at 610. and logistical hurdles associated with suc- filings, cessive he assuredly sum, will not be I believe that has raised present able to the substantial issues substantial questions about fundamental raised se, this case if left proceed pro deprivations liberty and due process and his being appointed chances of counsel extending many years, over and I do not having arguments seriously consid- see the delay benefit of the added inherent issue briefing on the transfer

in additional Court, possible much less District

in the Rather, this Court.

appeal back served be best justice” would

“interest transfer to Western

by a swift there to for the district court

of Missouri statutory and

determine violated, rights been

constitutional have, remedy for

and, proper they violations. reasons, I would the above-stated

For instructions this case with

remand § 1631 and to 28 U.S.C.

transfer opportu- has the

thereby ensure delay, to have his further

nity, without juris- competent court of by a

case heard

diction. CO.,

GOLDMAN, T. Scott SACHS & Gettleman,

Sheffer, Eric W.

Appellants, PARTNERS, L.P. VENTURE

ATHENA

No. 13-3461. Appeals, Court of

United States

Third Circuit. 21, 2014. Oct.

Argued: Sept. Filed:

Opinion

Case Details

Case Name: United States v. Joaquin Foy

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 5, 2015

Citation: 803 F.3d 128

Docket Number: 10-4728

Court Abbreviation: 3rd Cir.