Timothy A. Day v. U.s. Dept. of Justice

CLD-381 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-2467
________________
TIMOTHY A. DAY,
Appellant
v.
U.S. DEPT. OF JUSTICE; U.S. ATTORNEY GENERAL;
FEDERAL BUREAU OF PRISONS; DIRECTOR LAPPIN Director of Federal
Bureau of Prisons; D. SCOTT DODRILL, N.E. Regional Director;
WARDEN CHARLES E. SAMUELS, JR.; MICHAEL CARROLL, Unit Manager 5811;
KARLTON BYRD, Case Manager Camp; JASON RAGUCKAS, Case Manager 5811;
NANCY TROXLER, Counselor 5811
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 06-cv-05302)
District Judge: Honorable Robert B. Kugler
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
September 13, 2007
Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES.
(Filed: October 4, 2007)
_______________________
OPINION
_______________________

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1After the complaint was filed, Program Statement 5100.07, Chapter 7 was rescinded
and the relevant rules were replaced by Program Statement 5100.08, Chapter 5 (2006).
2Under the BOP guidelines, if the Presentence Investigation Report or other official
documentation clearly indicates that the inmate, during the term of confinement or in his
prior criminal history, had sexual contact with a minor or other person physically or
mentally incapable of granting consent, or undertook any sexual act or contact that is
aggressive or abusive in nature, then the BOP may impose an SOPSF. P.S. 5100.08,
Sept. 12, 2006, Chapter 5, p. 8 (available at
http://www.bop.gov/policy/progstat/5100_008.pdf). A conviction is not required for
SOPSF imposition, but if a charge was dismissed or nolle prosequi, application of an
SOPSF is prohibited. See id. An SOPSF is imposed if an inmate was charged with an
included offense, but, as a result of a plea bargain, was not convicted of it. See id.
2
PER CURIAM
Appellant Timothy A. Day appeals from the District Court’s judgment dismissing
his complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. For the reasons that
follow, we will dismiss this appeal pursuant to 28 U.S.C. §§ 1915(e)(2)(B).
Day filed the instant action pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking monetary damages and an
order requiring the Federal Bureau of Prisons (“BOP”) to revise Program Statement
5100.07, Chapter 7 (1999), to conform to the U.S. Constitution. 1 He argued that the
BOP’s assignment of a Sex Offender Public Safety Factor (“SOPSF”) to him upon his
entry to federal prison violated the double jeopardy and due process clauses of the U.S.
Constitution.2 Day also claimed that the 1992 charge on which the SOPSF was based was
supposed to be dismissed after he completed a term of probation and, therefore, should
not have resulted in a conviction and, accordingly, could not have provided a basis for

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applying the SOPSF.
In 2005, Day filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, alleging that the BOP violated his due process and equal protection rights when it
assigned him an SOPSF based on his prior conviction for a misdemeanor charge of
exposure of sexual organs. See Day v. Nash, Civ. No. 05-cv-00797, 2005 WL 2654089
(D.N.J. Oct. 12, 2005). The District Court denied his petition and we affirmed, holding
that the District Court did not err in rejecting Day’s equal protection claim, as he had
made no allegation that the BOP treated him differently from any person similarly
situated when it assigned him a SOPSF. See Day v. Nash, C.A. No. 05-4835, 191 Fed.
Appx. 137, 139-40 (3d Cir. 2006). We further concluded that the District Court did not
err in denying his due process claim to the extent that he claimed that his classification
deprived him of liberty without due process, as Day had no liberty interest in the degree
of his confinement. See id. Finally, we held that the District Court did not err in finding
that BOP did not abuse its discretion or act arbitrarily in relying on the information in his
PSI to impose the SOPSF. See id. The PSI described the original lewd and lascivious act
charge, and noted that Day pleaded guilty to the lesser included exposure charge on the
day of sentencing. See id.
Based on our prior holding, the District Court in the instant action concluded that
Day’s claims were barred under the doctrines of res judicata and collateral estoppel. See
In re Continental Airlines, Inc., 279 F.3d 226, 232 (3d Cir. 2002). To the extent Day
could be deemed to have raised a new claim regarding the violation of his Fifth

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Amendment right against double jeopardy, the District Court held that such a claim was
meritless, as the SOPSF did not constitute an additional criminal punishment for his 1992
conviction. See Hudson v. United States, 522 U.S. 93, 98-99 (1997).
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because Day
has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this
appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal may be
dismissed if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319,
325 (1989).
We agree with the thorough analysis of the District Court and, accordingly,
conclude that Day’s appeal is without merit. In his notice of appeal, Day maintains that
the District Court failed to address his claim that the 1992 charge on which the SOPSF
was based was supposed to be dismissed after he completed a term of probation and,
therefore, should not have resulted in a conviction and, accordingly, could not have
provided a basis for applying the SOPSF. However, the record contains no evidence that
the 1992 charge did not result in a conviction, and in his appeal of the denial of his § 2241
petition, we explained:
The BOP evaluated Day’s PSI, in which the circumstances of Day’s 1991
conviction was described as follows: “According to available records, the
defendant was originally charged with Lewd and Lascivious Act in the
Presence of a Child Under the Age of Sixteen Years, but pled the lesser
included misdemeanor charge on the date of his sentencing.” (Response at

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3Day does not dispute that he was originally charged with a lewd and lascivious act in
the presence of a child under 16 years old, or that he pleaded guilty to the lesser included
exposure charge. Day, who contends that the conviction resulted from urinating in public
while he was drunk, argues that the original charge was incorrect, and that he pleaded
guilty to corrected charges.
Ex. 3.) 3 In consideration of the PSI information, the BOP elevated Day’s
security level from minimum, under which he would be eligible for a prison
camp, to low, under which he has been placed in a low security facility.
The record does not reflect that Day ever previously objected to the characterization that
he was convicted of the lesser-included misdemeanor charge. Accordingly, this claim
cannot provide the basis for any relief.
Based on the foregoing, we conclude that this appeal lacks legal merit, and will
therefore dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). Day’s motions for an
injunction barring his transfer and to supplement the record are denied.

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