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Feb. 17, 2026 Get Citation Alerts Download PDF Add Note

Waylen Block v. Warden Bowers

District Court, D. Massachusetts

• Citations: None known
• Docket Number: 4:25-cv-40031

• Precedential Status: Unknown Status

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.5K)

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Trial Court Document

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

WAYLEN BLOCK,

Petitioner,

v. CIVIL ACTION NO. 25-40031-MPK1

WARDEN BOWERS,

Respondent.

MEMORANDUM AND ORDER ON

RESPONDENT’S MOTION TO DISMISS (#27.)

KELLEY, U.S.M.J.

I. Introduction.

Pro se petitioner Waylen Block, an inmate at Federal Medical Center (“FMC”) Devens,
has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (#24.)2 Block’s petition
names Warden Fred Bowers of FMC Devens as Respondent and challenges the Bureau of Prison’s
(“BOP”) decision to assign him a “Sex Offender” Public Safety Factor (“PSF”) classification and
certain adverse agency determinations he says were related to it.3 Id. ¶¶ 1, 6, 13, 26. He also
challenges BOP’s decision to terminate his access to inmate email. Id. The Respondent has moved to dismiss Block’s petition.4 (#27.) Block opposes. (#33.)

1 With the parties’ consent, this case was assigned to the undersigned for all purposes, including
trial and the entry of judgment, pursuant to 28 U.S.C. § 636 (c). (#13.)

2 Block filed his original petition on February 28, 2025. (#1.) He amended the petition on
September 17, 2025. (##21, 24.) Though titled as an “Amended Complaint,” both sides treat the
pleading as an amended habeas petition. See #28 at 1 n.1; #33 at 1.

3 As described in greater detail below, Block seeks review under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701 et seq. (#24 ¶ 13.)

4 The Respondent’s “Motion to Dismiss Petitioner’s Amended Petition for Habeas Corpus” does
not cite any of the defenses listed in Fed. R. Civ. P. 12(b) but lists three reasons why dismissal is
For the reasons set out below, the Respondent’s motion (#27) is allowed in part and denied
in part, and Block’s petition is dismissed.

II. Background.

A. Block Is Assigned a Public Safety Factor.

In 2018, Block was sentenced by the United States District Court for the District of South
Dakota to a term of twenty years’ incarceration following his conviction, pursuant to 18 U.S.C. §§
2252A(a)(2)(A) and (b)(1), for Receipt of Child Pornography. (#24 ¶ 5); see United States v.
Block, Case No. 5:17-cr-50068 (D.S.D. Aug. 13, 2018), Docket No. 81, “Judgment in a Criminal
Case”; Docket No. 99, “Amended Judgment in a Criminal Case.” After he was processed into
custody, BOP officials assigned Block a PSF classification of “Sex Offender” in accordance with
BOP Program Statement No. P5100.08, “Inmate Security Designation and Custody Classification”
(“PS 5100.08”).5 (#24 ¶ 6.) Block claims that the classification, in addition to being erroneous,

warranted. See #27 at 2 (“First, this Court lacks jurisdiction . . . Second, [Block] failed to exhaust
his administrative remedies . . . And third, even if this Court were to reach the merits, the BOP’s
classification of [Block] as a sex offender . . . was proper[.]”). The Respondent’s supporting
memorandum (#28) references Fed. R. Civ. P. 12(b)(1) but dedicates nearly half its length to
arguments that attack the merits of Block’s allegations. See id. at 2, 8-13. The court treats the
motion as one brought under both Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6).

5 The court understands Block’s petition as challenging his “Sex Offender” PSF classification. In
his amended petition, Block states that he was assigned a PSF of “Greatest Severity,” see #24 ¶
13, although he says in his opposition that he was actually assigned a “High Severity”
classification. (#33 ¶ 7.) No such PSF classification is listed in PS P5100.08, a document the
Respondent submits and cites to in identifying the actual PSF Block was assigned: “Sex Offender.”

(#28 at 1-2); see #28-1 at 38 ¶ 16 (listing various “Public Safety Factors” including that of “Sex
Offender” and “Greatest Severity Offense” but not “High Severity”), and 97-100 (listing “Greatest
Severity” and “High Severity” as criteria on separate “Offense Severity Scale”); see also #29 ¶ 7,
Declaration of Cheryl Magnusson (the “Magnusson Declaration”) (“Petitioner Block is assigned
the Sex Offender PSF[.]”). In addition to those documents attached to Block’s amended petition,
see #24-1-6, the court considers the Magnusson Declaration and its attachments (#29-1-6), along
with PS P5100.08, documents which the Respondent submits in support of his motion to dismiss.

“Ordinarily, a court may not consider any documents that are outside of the complaint, or not
expressly incorporated therein, unless the motion is converted into one for summary judgment.”

“prevent[ed] his participation in certain BOP Programs” and rendered him ineligible to earn time
credits toward his early release under the First Step Act (“FSA”). Id. ¶¶ 1, 6, 26.

B. Block’s Access to Inmate Email Is Terminated.

Block arrived at FMC Devens in April 2021. Id. ¶ 11. There, BOP officials “thoroughly
reviewed and approved” his use of “TRULINCS” email,6 which he used in the years following,

without incident, to receive news, prepare legal work, and communicate with his family and his
lawyers. Id. In January 2025, a BOP official informed Block that following “a spontaneous audit”
of inmate email, Block’s access to TRULINCS was to be terminated “ba[s]ed on his offen[se] of
conviction.” Id. ¶ 12. According to Block, the decision to deny him access to TRULINCS was
not only in retaliation for his having earlier brought lawsuits against BOP but was also carried out
pursuant to a “personal driven policy” intended to “act out punishment to sex offenders.” Id.

III. Legal Standards.

Fed. R. Civ. P. 12(b)(1) permits a party to move to dismiss for lack of subject-matter
jurisdiction. “Subject-matter jurisdiction means the power to resolve the parties’ dispute.” Toddle

Inn Franchising, LLC v. KPJ Assocs., LLC, 8 F.4th 56, 60 n.4 (1st Cir. 2021) (additional citations
omitted). Dismissal for lack of subject matter jurisdiction “‘is appropriate only when the facts

Alternative Energy Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)
(additional citation omitted). “There is, however, a narrow exception ‘for documents the
authenticity of which are not disputed by the parties; for official public records; for documents
central to plaintiff[’s] claim; or for documents sufficiently referred to in the complaint.’” Id. (additional citation omitted). Block does not challenge the authenticity of the documents
submitted by the Respondent, and, in any event, the court finds that they are central to Block’s
claims. See Isler v. Grondolsky, 942 F. Supp. 2d 170, 173 & n.1 (D. Mass. 2013) (considering
BOP declaration and those records attached to it, including PS P5100.08, in connection with
motion to dismiss § 2241 petition challenging “Sex Offender” PSF classification).

6 BOP’s Trust Fund Limited Inmate Communication System, or “TRULINCS”, allows inmates to
send and receive email with members of the community. (#29 ¶¶ 5); see #29-2, BOP Program
Statement 4500.12, “Trust Fund / Deposit Fund Manual.”

adumbrated in the [petition], taken at face value, fail to bring the case within the court’s subject-
matter jurisdiction.’” Cabo v. Warden, FCI Berlin, Case No. 23-66-JL, 2024 WL 734180, at *1
(D.N.H. Jan. 18, 2024), report and recommendation adopted, 2024 WL 730483 (D.N.H. Feb. 22,
2024) (quoting Gordo-Gonzalez v. United States, 873 F.3d 32, 35 (1st Cir. 2017)) (alteration in

original). Under Rule 12(h)(3), if at any time the court determines that it lacks subject-matter
jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).

A motion to dismiss a habeas petition is evaluated under the same principles as those
applied in other civil cases under Fed. R. Civ. P. 12(b)(6). Phillips v. Bowers, 784 F. Supp. 3d
471, 473 (D. Mass. 2025) (additional citation omitted); see Fed. R. Civ. P. 81(a)(4). Consequently,
dismissal is appropriate if, after taking the petition’s well-pleaded facts as true and allowing the
petitioner the benefit of all reasonable inferences, “the petition fails to set forth ‘factual allegations,
either direct or inferential, respecting each material element necessary to sustain recovery under
some actionable legal theory.’” Sanborn v. Bowers, 788 F. Supp. 3d 153, 159 (D. Mass. 2025)
(quoting Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008)) (additional citations omitted).

IV. Discussion.

A. Block’s Claims.

Paragraph 13 of Block’s amended petition, titled “V. Claims for Relief[,]” states, in full:

Mr. Block challenges the []BOP’s adverse public safety factor (“PSF”) . . . pursuant
to the Administrative Procedure[] ACT (APA), see 5 U.S.C. §§ 701; 706. The
imposition of the PSF is arbitrary, capricious, and otherwise not in accordance with
law.

(#24 ¶ 13). Block’s petition also challenges certain related, adverse agency determinations and,
separately, the loss of his access to TRULINCS email. See id. ¶¶ 1, 6, 26.

B. The Respondent’s Motion to Dismiss (#27.)

The Respondent makes four arguments for dismissal, three of which are considered below.7
1. Jurisdiction over Block’s Habeas Petition.

The Respondent argues, as an initial matter, that Block’s habeas petition should be

dismissed because this court lacks subject matter jurisdiction over the claims raised in it. See #27
at 7-8. In particular, he claims that Block’s § 2241 petition challenges his PSF designation “not
because it affects the fact or duration of his confinement, but because it restricts his access to e-
mail.” Id. at 7. According to the Respondent, Block’s claims “seek relief beyond what is
traditionally provided by a writ of habeas corpus.” Id.

A habeas petition brought under 28 U.S.C. § 2241 provides a petitioner a means to “‘attack
the execution, rather than the validity’” of his sentence. Dinkins v. Boncher, Civil Action No. 21-
11847-AK, 2022 WL 3021108, at *2 (D. Mass. July 29, 2022) (quoting United States v. Barrett, 178 F.3d 34, 50 n.10 (1st Cir. 1999)). “Challenges to ‘the execution of a federal prisoner’s
sentence, includ[e] such matters as the administration of parole, computation of a prisoner’s

sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and
prison conditions.’” Barnes v. Spaulding, Civil Action No. 19-11745-RGS, 2020 WL 6065045,
at *7 (D. Mass. Sept. 24, 2020) (quoting Thornton v. Sabol, 620 F. Supp. 2d 203, 206 (D. Mass.
2009)) (emphasis in original) (additional quotations and citations omitted).

7 The court does not reach the Respondent’s fourth argument: that Block fails to allege any due
process violation. See #28 at 11-12. Block asserts no due process claim in his amended petition.
To the extent he makes a passing reference to one for the first time in his opposition, see #33 ¶ 6
(“Paragraph 21 through 25 in Mr. Blocks Amended Complaint describes many due process
violations by not affording the opportunity to participate any individualized hearing or review”),
any such claim has been waived. See Yancey v. Warden, FMC Devens, 712 F. Supp. 3d 95, 105
(D. Mass. 2024) (and cases cited). The court also treats as waived the apparent equal protection
claim Block asserts for the first time in his opposition. See #33 ¶ 14.

Block’s petition can be fairly read as challenging BOP’s decision to apply a PSF
classification; challenging certain related, adverse agency determinations with respect to his ability
to seek transfer or participate in BOP programming; and challenging BOP’s decision to terminate
his access to TRULINCS email. See #24 ¶¶ 1, 6, 13, 26. The court is satisfied that these claims

are properly before it where they challenge “‘the manner, location, or conditions of [Block’s]
sentence’s execution[.]’”8 Martinez v. Spaulding, Civil Action No. 18-11449-ADB, 2021 WL
4080051, at *4, 8 (D. Mass. Sept. 8, 2021) (acknowledging that “[c]ourts in this district have
analyzed challenges to the BOP’s classifications in the context of § 2241 petitions” and denying
respondent’s motion to dismiss for lack of jurisdiction) (quoting Gonzalez v. United States, 150 F.
Supp. 2d 236, 240 (D. Mass. 2001)); see Isler, 942 F. Supp. 2d at 171-72 (evaluating § 2241
petition challenging BOP decision to apply “Sex Offender” PSF classification); Golden v. Sabol, 575 F. Supp. 2d 280, 282 (D. Mass. 2008) (considering, but ultimately finding as moot, claim
raised in § 2241 petition challenging “Sex Offender” PSF and “the adverse conditions that
[petitioner] alleges ensued from that classification[,]” including the loss of certain privileges).

1. Failure to Exhaust Administrative Remedies.
   The Respondent next claims that so much of Block’s petition that challenges his access to TRULINCS email should be dismissed where Block failed to exhaust the administrative remedies available to him. See #28 at 8-9. The court agrees.
   “Generally speaking, a plaintiff’s failure to exhaust h[is] administrative remedies precludes h[im] from obtaining federal review of claims that would have properly been raised before the agency in the first instance.” Brito v. Garland, 22 F.4th 240, 255 (1st Cir. 2021); see Darling v.

8 For reasons stated below, however, the court does conclude that it lacks jurisdiction over certain
claims. See infra, IV.B.3.b.i.

Boncher, 651 F. Supp. 3d 433, 435 (D. Mass. 2023) (“Prisoners challenging their conditions of
confinement are required to exhaust their administrative remedies before they may petition for
habeas corpus relief under 28 U.S.C. § 2241.”) (additional citations omitted); see also United
States v. Bueno-Beltran, Case No. 15-189-1 (RAM), 2024 WL 3633641, at *3 (D.P.R. Aug. 2,

2024) (inmates “who seek to challenge their criminal history categorization as it affects
assessments and classifications made by the BOP should first exhaust available administrative
remedies” before bringing any § 2241 petition).

BOP regulations require that federal inmates follow a multitiered review process to
successfully exhaust the administrative remedies available to them. See 28 C.F.R. § 542.10 et seq.,

“Administrative Remedy Program.”9 The Respondent does not dispute that Block followed this
process and appropriately exhausted his administrative remedies with respect to his claim that
BOP’s assignment of his “Sex Offender” classification was erroneous, see #28 at 9 n.4; rather, he
argues that Block failed to complete the administrative process with respect to his challenge that
his access to TRULINCS email was improperly terminated. Id. at 9. According to the Respondent,

Block’s failure to do so is fatal to his TRULINCS challenge. Id. 9 As described in the Magnusson Declaration,

[s]uccessfully exhausting the BOP’s Administrative Remedy Program requires an
inmate to first attempt informal resolution of a complaint with institution staff, and
if informal resolution is unsuccessful, then file a written complaint (BP-9) with
institutional staff. If an inmate is dissatisfied with the response of institutional staff,
they may submit an appeal on the appropriate form (BP-10) to the Regional
Director; if an inmate is dissatisfied with the Regional Director’s response, they
may submit an appeal on the appropriate form (BP-11) to the BOP’s Office of
General Counsel. Appeal to the Office of General Counsel is the final
administrative appeal, and only after the Office of General Counsel has provided a
response (or failed to respond in a timely manner) can the inmate be considered to
have exhausted the administrative remedy process.

(#29 ¶ 8.)

In this context, whether the failure to exhaust is excusable is an issue with which a
reviewing court “has ‘some leeway.’” Phillips, 784 F. Supp. 3d at 474 (D. Mass. 2025) (quoting
Anversa v. Partners Healthcare Sys., Inc., 835 F.3d 167, 176 (1st Cir. 2016)). It requires that a
court “balance a petitioner’s interest in ‘retaining prompt access to a federal judicial forum’ against

BOP’s ‘institutional interests favoring exhaustion.’” Id. (weighing “‘undue prejudice’” to the
petitioner against the agency’s “‘expertise’ to the issues presented” and its interests in having its
“established remedial procedures” followed, and requiring exhaustion) (additional citations
omitted).

Here, these interests weigh in the Respondent’s favor. Block admits that he did not fully
complete the administrative process with respect to this issue before bringing suit. See #24 ¶ 27.

He claims that his failure to have done so is excusable where BOP deemed the TRULINCS-related
administrative remedy request he filed (#1230407-F1) “duplic[a]tive” of an earlier request
(#1215090-F1) he submitted—and ultimately exhausted—which had challenged his PSF
classification. Id. Block’s argument, however, omits critical context. The response Block received from
institutional staff on March 6, 2025, in connection with his TRULINCS request (#1230407-F1), a
copy of which is attached to the Magnusson Declaration, in fact reads, in relevant part:

This is in response to your Request for Administrative Remedy received on
February 21, 2025, wherein you request your Public Safety Factor (PSF) of Sex
Offender be removed as well as your access to Trulincs Electronic Messaging
System be restored.

An investigation into your request revealed the following: part of this request for
Administrative Remedy is construed as a repeated request to have your PSF of Sex
Offender be removed. This request is duplicative of a request for PSF removal
(Remedy ID #1215090-F1) and you do not provide new information that would
cause BOP to revisit those decisions.

(#29-6 at 2, March 6, 2025 “Request for Administrative Remedy”) (emphasis added).
As BOP’s response makes plain, it only construed as duplicative the portion of Block’s
request that sought removal of his PSF classification—an issue it had already entertained in request

1215090-F1. And, contrary to Block’s assertion that BOP failed to provide him with an

appropriate response, see #29 ¶ 27, the remainder of BOP’s March 6 response acknowledges

Block’s TRULINCS-related concern, provides a basis for BOP’s decision denying the request, and
concludes with a paragraph that informs Block of his ability to appeal the decision to the Regional
Director pursuant to the Administrative Remedy Program. See #29-6 at 2.

Block, who has authored thirty-five administrative remedy requests while incarcerated
(and no doubt is familiar with the requirements of the Administrative Remedy Program), never
appealed the March 6, 2025 decision. He offers no reason why he did not. (#29 ¶¶ 10, 12-13.)

See Cortez v. FCI Berlin, Warden, Case No. 25-31-JL-AJ, 2025 WL 3617996, at *3 (D.N.H. Oct.
17, 2025), report and recommendation adopted, 2025 WL 3611692 (D.N.H. Dec. 12, 2025)
(recognizing that while exceptions to exhaustion exist, “they arise only in extraordinary
circumstances and the petitioner ‘bears the burden of showing that an exception to the exhaustion

requirement applies’”) (additional citation and quotations omitted).

Accordingly, so much of Block’s petition that challenges his access to TRULINCS email
is dismissed for failure to exhaust the administrative remedies available to him.
3. The Merits.

 a. Application of a Public Safety Factor Classification.           

Seeking review under the APA, Block argues that BOP’s decision to classify him as a “Sex
Offender” was “arbitrary and capricious[.]” (#24 ¶¶ 13, 22-23.)

i. BOP’s PSF Classification System – Generally.

Pursuant to 18 U.S.C. § 4081, “Classification and Treatment of Prisoners,” BOP has
authority to classify inmates

. . . according to the nature of the offenses committed, the character and mental
condition of the prisoners, and such other factors as should be considered in
providing an individualized system of discipline, care, and treatment of the persons
committed to such institutions. 18 U.S.C. § 4081; see Fox v. Lappin, 409 F. Supp. 2d 79, 89-90 (D. Mass. 2006).
Consistent with this authority, BOP promulgated 28 C.F.R. § 524.10 et seq., “Classification
and Program Review of Inmates,” for the express purpose of “classifying newly committed
inmates and conducting program reviews for all inmates[,]” with certain exceptions not applicable
here. 28 C.F.R. § 524.10.

To achieve these objectives, BOP follows Program Statement No. P5100.08, “Inmate
Security Designation and Custody Classification.” (#28-1.) As defined in PS P5100.08, “[a]
Public Safety Factor (PSF) is relevant factual information regarding the inmate’s current offense,
sentence, criminal history or institutional behavior that requires additional security measures be
employed to ensure the safety and protection of the public.” Id. at 48. One such PSF listed in PS
P5100.08 is that of “Sex Offender[,]” see id. at 38, which the program statement defines as
applicable to an inmate “whose behavior in the current term of confinement or prior history
includes one or more of the following elements . . . (2) [p]ossession, distribution or mailing of
child pornography or related paraphernalia[.]” Id. at 49 (listing five other “elements”).10

The Respondent explains that, using PS P5100.08, BOP assigned Block a “Sex Offender”

10 As PS P5100.08 notes, “[a] conviction is not required for application of this PSF if the
Presentence Investigation Report (PSR), or other official documentation, clearly indicates the
[relevant] behavior occurred in the current term of confinement or prior criminal history.” (#28-1
at 49.)

PSF classification based on both his offense history—a 2018 conviction in the District of South
Dakota for Receipt of Child Pornography under 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1)–and the
conduct detailed in his Presentence Investigation Report (“PSR”). (#28 at 6, citing #29 ¶ 7.)
ii. The APA.

Under the APA, a reviewing court “shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be[,]” inter alia, “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right[.]” 5 U.S.C. § 706 (2)(A), (C).

iii. Arbitrary and Capricious.

Agency action is arbitrary and capricious “if the agency relied on improper factors,
disregarded ‘an important aspect of the problem, offered an explanation that runs counter to the
evidence,’ or when a reasonable explanation for the agency’s decision cannot be discerned.”

Gulluni v. Levy, 85 F.4th 76, 82 (1st Cir. 2023) (quoting Motor Vehicle Ass’n v. State Farm Mut.
Auto. Ins., 463 U.S. 29, 43 (1983)) (additional citations omitted). In conducting this inquiry, “a

court asks not whether it agrees with the agency decision, but rather only whether the agency action
was reasonable and reasonably explained.” Seven Cnty. Infrastructure Coal v. Eagle Cnty., 605
U.S. 168, 180 (2025) (additional citations omitted). Review of an individual BOP classification
decision is available under § 706. See Fox, 409 F. Supp. 2d at 89.

In response to Block’s claim that his PSF designation was arbitrary and capricious, the
Respondent counters, and the court agrees, that the decision to classify Block as a “Sex Offender”
was properly supported by Block’s 2018 conviction for Receipt of Child Pornography. (#28 at
10.) Indeed, BOP’s decision to apply a “Sex Offender” classification based on, at a minimum,
Block’s conviction for a sexual offense was not arbitrary or capricious where, under PS P5100.08,
the offense of his conviction necessarily included behavior relating to “[p]ossession, distribution
or mailing of child pornography or related paraphernalia[.]”11 (#28-1 at 49.) See Isler, 942 F.
Supp. 2d at 176-78 (BOP’s determination that § 2241 petitioner’s conviction “involved sexual
assault conduct” such that “Sex Offender” classification was appropriate was not arbitrary or

capricious); Fox, 409 F. Supp. 2d at 91 (BOP did not abuse its discretion in applying a “Sex
Offender” classification to an inmate with a prior conviction for a sexual offense); see also Day v.
Nash, 191 F. App’x 137, 140 (3d Cir. 2006) (BOP’s application of a “Sex Offender” PSF was not
arbitrary or an abuse of discretion where inmate’s PSR “described conduct that triggers” such a
classification).

iv. In Excess of Statutory Jurisdiction or Authority.

Beyond his individual classification decision, Block claims that BOP’s “categorical use”
of the Public Safety Factors enumerated in PS P5100.08 in making classification designations
exceeds BOP’s statutory authority where its classification decisions are “disconnected from
individualized facts[.]”12 (#24 ¶ 21; #33 ¶ 12.) This claim must also be dismissed.

Under the APA, a reviewing court “must exercise [its] independent judgment in deciding
whether an agency has acted within its statutory authority[.]” Loper Bright Enterprises v.

11 Referencing § 4B1.5 of the U.S. Sentencing Guidelines Manual, Block claims that because the
offense of his conviction, Receipt of Child Pornography under 18 U.S.C. §§ 2252A(a)(2)(A) and
(b)(1), is not a “covered sex crime” within the meaning of § 4B1.5, he “should not have a PSF.”

(#24 ¶¶ 17-19.) The Guidelines, however, have no application to BOP’s administration of its
classification system. 18 U.S.C. § 4081, from which BOP derives authority to classify inmates,
“does not direct the BOP to consider the Sentencing Guidelines.” Iacaboni v. United States, 251
F. Supp. 2d 1015, 1033-34 (D. Mass. 2003) (considering application of the Guidelines in relation
to 18 U.S.C. § 3621 (b) and acknowledging that “the Sentencing Guidelines govern what a judge
does in imposing a sentence; they do not control what the BOP does after the sentence is imposed”)
(emphasis in original).

12 Block’s argument with respect to this issue is limited to BOP’s application of its “Sex Offender”
Public Safety Factor classification.

Raimondo, 603 U.S. 369, 412 (2024);13 see id. at 394 (“The APA, in short, incorporates the
traditional understanding of the judicial function, under which courts must exercise independent
judgment in determining the meaning of statutory provisions.”). As articulated in Loper Bright:
When the best reading of a statute is that it delegates discretionary authority to an
agency, the role of the reviewing court under the APA is, as always, to
independently interpret the statute and effectuate the will of Congress subject to
constitutional limits. The court fulfills that role by recognizing constitutional
delegations, ‘fix[ing] the boundaries of [the] delegated authority,’ . . . and ensuring
the agency has engaged in ‘reasoned decisionmaking’ within those boundaries[.]

Id. at 395 (additional citations and quotations omitted) (alterations in original).
As the Respondent points out, BOP, under 18 U.S.C. § 4081,14 has been given broad
discretion by Congress to classify inmates in its custody. See Moody v. Daggett, 429 U.S. 78, 88
n.9 (1976) (“Congress has given federal prison officials full discretion to control” prisoner
classification) (citing 18 U.S.C. § 4081); Cohen v. United States, 151 F.3d 1338, 1343-44 (11th
Cir. 1998) (concluding that “Congress intended to give the BOP discretion in making its
classification decisions and determinations about placement of prisoners”); Fox, 409 F. Supp. 2d
at 90 (inmate classification “is a matter within the discretion of prison officials”) (collecting cases).

BOP’s authority under § 4081 unambiguously includes the ability to classify inmates
according to, among other factors, “the nature of the offenses committed[.]” 18 U.S.C. § 4081.

13 Loper Bright overruled the “broad rule of deference” announced in Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), specifically, that, in cases where a
“‘statute [was] silent or ambiguous with respect to the specific issue’ at hand[,]” a reviewing court
was to “defer to the agency if it had offered ‘a permissible construction of the statute[.]’” Loper
Bright, 603 U.S. at 397 (quoting Chevron, 467 U.S. at 843). In the wake of Loper Bright,
reviewing courts must now “exercise their independent judgment in deciding whether an agency
has acted within its statutory authority, as the APA requires.” Id. at 412. Block argues that review
under this standard compels the conclusion that BOP exceeds its statutory authority in applying
“Sex Offender” classifications. See #24 ¶¶ 1, 10, 15, 21. For reasons explained below, it does not.

14 The parties agree that BOP derives classification authority from 18 U.S.C. § 4081. See #28 at
4, 10; #33 ¶¶ 8-9.

Consistent with this authority, PS P5100.08 allows an inmate to be classified as a “Sex Offender”
where his or her “prior history” includes certain “elements” or “documented behavior” that involve
or relate to sexual conduct. See #28-1 at 49. BOP’s decision to assign an inmate a “Sex Offender”
PSF classification where that inmate’s “behavior in the current term of confinement or prior history

includes one or more” of those elements or behaviors is within the bounds of the unambiguous
authority it has been delegated, under § 4081, to classify inmates according to, among other things,
the nature of those offenses they committed. See Fox, 409 F. Supp. 2d at 90 (“[A]ssignment of a
“Sex Offender” Safety Factor to prisoners with prior state sex offenses cannot be found contrary
to the statute or congressional intent”) (citing 18 U.S.C. § 4081).15

b. Individual Placement and Programming Determinations.

Finally, Block claims that his “Sex Offender” classification “prevent[ed] his participation
in certain BOP Programs,” including furlough and residential drug abuse treatment programs
(“RDAP”), prevented his placement in community reentry centers or inmate camps, and denied
him the opportunity to earn time credits under the FSA. (#24 ¶¶ 1, 6, 26.)

    i. Individual Determinations Regarding Furlough, Transfer, and Placement 
       in Community Centers and Residential Drug Abuse Treatment Programs.  

Unlike his claim with respect to classification, individual agency determinations with
respect to Block’s transfer, participation in furlough programming, or placement in a community
center or residential drug abuse treatment program, are not reviewable under the APA, and this

15 Block argues that BOP failed to comply with the APA’s rulemaking requirements, see 5 U.S.C.
§ 553, where, according to him, PS P5100.08 “was adopted without proper rule making[.]” (#24
¶¶ 23-25) (cleaned up). PS P5100.08, however, is simply an “internal agency guideline” and is
not “‘subject to the rigors of the Administrative Procedure Act, including public notice and
comment.’” Reno v. Koray, 515 U.S. 50, 61 (1995) (additional citation omitted); see Fox, 409 F.
Supp. 2d at 90 n.16 (concluding that a prior version of PS P5100.08 was “best classified as a
general statement of policy” and “therefore would not be subject to the [APA’s] ‘notice and
comment’ rulemaking requirements”).

court is without jurisdiction to consider them.16

BOP has authority by statute to make determinations regarding inmate transfer and
placement, see 18 U.S.C. § 3621 (b); to temporarily release an inmate on furlough, see 18 U.S.C.
§ 3622; to place an inmate in prerelease custody, such as in a community correctional facility, see 18 U.S.C. § 3624 (c)(1); or to allow for an inmate’s participation in substance abuse treatment
programs, see 18 U.S.C. § 3621 (e).

“Judicial review of individual determinations under those statutes governing inmate
placement, transfer, release and early release . . . however, is precluded under section 706 of the
APA.” Fox, 409 F. Supp. 2d at 89 (APA review of BOP decision denying § 2241 petitioner
consideration for community center placement was unavailable) (additional citations omitted); see 18 U.S.C. § 3625, “Inapplicability of the Administrative Procedure Act” (“The provisions of
sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making
of any determination, decision, or order under this subchapter.”); see also Standifer v. Ledezma, 653 F.3d 1276, 1279 n.3 (10th Cir. 2011) (“To the extent [petitioner] challenges only the BOP’s

decision regarding his eligibility for RDAP participation, his argument is expressly foreclosed by 18 U.S.C. § 3625, which prohibits judicial review under the APA of RDAP placement decisions.”);
Simmons v. Grondolsky, Civil Action No. 12-10515-RGS, 2012 WL 5423707, at *2 (D. Mass. Oct.
18, 2012), report and recommendation adopted, 2012 WL 5416533 (D. Mass. Nov. 5, 2012)
(acknowledging that “Section 706 of the APA precludes judicial review of individual
determinations under section 3621(e)” and concluding that APA review of BOP determination of

16 Block does not challenge any related BOP policy or allege that BOP exceeded its statutory
authority in making these decisions. To the contrary, his petition “alleges only that the BOP erred
in his particular case.” Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011) (construing § 2241
petition as challenging BOP’s individualized determinations alone).

§ 2241 petitioner’s eligibility for early release was unavailable); Bonadonna v. Sabol, Civil Action
No. 09-40081-GAO, 2009 WL 4730989, at *1 (D. Mass. Dec. 8, 2009) (APA review of BOP
decision denying § 2241 petitioner’s transfer request was unavailable).

ii. Block’s Eligibility for Earned Time Credits.

Through use of a “risk and needs assessment system[,]” the First Step Act, or FSA, allows
inmate participation in “evidence-based recidivism reduction programming or productive
activities” and provides, as an incentive to eligible inmates who “successfully complete[]” such
programming or activities, corresponding “time credits” toward early release. 18 U.S.C. § 3632 (a)
and (d)(4)(A). Pursuant to 18 U.S.C. § 3632 (d)(4)(A)(i)-(ii), “for every 30 days of successful
participation in evidence-based recidivism reduction programming or productive activities[,]”
eligible inmates “(i) . . . shall earn 10 days of time credits” and (ii), for those determined by BOP
“to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, ha[ve] not
increased their risk of recidivism, . . . an additional 5 days” of credits.17

Of critical importance here, 18 U.S.C. § 3632 (d)(4)(D) unambiguously states that an

inmate “is ineligible to receive time credits” if serving a sentence for a conviction under, inter alia,
“(xlii) Section 2252A, relating to certain activities involving material constituting or containing
child pornography[.]” 18 U.S.C. § 3632 (d)(4)(D)(xlii). Block was convicted under 18 U.S.C. §§
2252A(a)(2)(A) and (b)(1) for Receipt of Child Pornography, and BOP’s decision to designate
him as ineligible to earn time credits based on the plain language of 18 U.S.C. § 3632 (d)(4)(D)(xlii)
was not arbitrary or capricious or in excess of its statutory authority.18 See Ashby v. Warden, Civil

17 Eligible inmates may then apply earned time credits “toward time in prerelease custody or
supervised release.” 18 U.S.C. § 3632 (d)(4)(C).

18 The Respondent does not make this exact argument in support of his contention that Block was
not unlawfully denied FSA time credits, see #28 at 10 n.7; nevertheless, a court may allow a motion
Action No. BAH-24-1663, 2025 WL 2494326, at *4-5 (D. Md. Aug. 29, 2025) (holding that 18
U.S.C. § 3632 (d)(4)(D) “unambiguously disqualifie[d]” inmate who was serving a sentence for a
conviction under one of § 3632(d)(4)(D)’s enumerated “provisions of law” from earning FSA time
credits, and dismissing § 2241 petition which sought APA review); Howell v. Napier, Civil Action

No. 4:24-7499-SAL-TER, 2025 WL 2549073, at *3-4 (D.S.C. Feb. 4, 2025), report and
recommendation adopted, 2025 WL 2549073 (D.S.C. Aug. 11, 2025) (same) (collecting cases).
V. Conclusion.

For the above reasons, the Respondent’s motion (#27) is allowed in part and denied in part,
and Block’s petition is dismissed. An order of dismissal will issue separately.

February 17, 2026 /s/ M. Page Kelley

M. Page Kelley

United States Magistrate Judge

to dismiss “on grounds ‘not fully briefed.’” Phillips, 784 F. Supp. 3d at 474 n.1 (quoting Cordero-
Hernandez v. Hernandez-Ballesteros, 449 F.3d 240, 243 n.2 (1st Cir. 2006)).