Busby et al v. Hemingway
Filing
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OPINION AND ORDER denying 1 Petition, denying 10 Motion to Appoint Counsel ; denying 11 Motion to expedite medical request ; granting 13 Motion to Withdraw Motion to Stay; granting 14 Motion to file a joint habeas petition; granting 15 Motion to Expedite and petitioners are GRANTED leave to appeal in forma pauperis. Signed by District Judge Paul D. Borman. (DTof)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER BUSBY,
KEVIN HAMILL,
JOHNATHAN GARCIA,
JOSEPH MONDAY,
ERIK THOMPSON,
Petitioners,
Case No. 2:20-11713
HONORABLE PAUL D. BORMAN
v.
JONATHAN HEMINGWAY,
Respondent.
______________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2241,
DENYING THE MOTIONS FOR APPOINTMENT OF COUNSEL AND TO
EXPEDITE MEDICATION REQUEST (ECF Nos. 10, 11), GRANTING THE
MOTION TO WITHDRAW THE MOTION FOR A STAY (ECF No. 13),
GRANTING THE PETITIONERS PERMISSION TO FILE A JOINT
PETITION (ECF No. 14), GRANTING THE MOTION TO EXPEDITE (ECF
No.15), AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Christopher Busby, Kevin Hamill, Johnathan Garcia, Joseph Monday, and
Erik Thompson, (“Petitioners”), confined at the Federal Correctional Institution in
Milan, Michigan (FCI-Milan) seek the issuance of a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. In their joint pro se application, Petitioners claim that they are
at risk of contracting the Covid-19 virus while incarcerated at FCI-Milan.
Petitioners allege that the Bureau of Prisons (BOP) is deliberately indifferent to their
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medical needs. Petitioners seek to be released to home confinement until the Covid19 pandemic subsides. Petitioners in the alternative ask this Court to grant them
habeas relief based on the BOP’s failure to approve them for compassionate release.
For the reasons that follow, the petition for a writ of habeas corpus is DENIED
WITHOUT PREJUDICE to allow Petitioners to raise their potential civil rights
claims properly as a § 1983 action.
I. BACKGROUND
Petitioners filed what they labeled an “Emergency Motion for Preliminary
Injunction.” The pleadings were construed by the Clerk’s Office to be a petition for
a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Respondent filed an
answer to the petition. Petitioners in their reply admit that they are seeking habeas
relief pursuant to 28 U.S.C. § 2241. (ECF No. 16, PageID.320).
Petitioners allege that the failure to test all staff and inmates at FCI Milan for
Covid-19 puts them at risk of contracting the virus. Petitioners allege that the prison
staff are not wearing Personal Protection Equipment (PPEs) to prevent the spread of
Covid-19. Petitioners further claim that masks are not being provided to the inmates
at FCI-Milan or are being provided in insufficient amounts. Petitioners claim that
prisoners at FCI-Milan are often placed in crowded conditions that violate the social
distancing protocols necessary to prevent the spread of the disease. Petitioners
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allege that insufficient cleaning supplies are being made available to inmates.
Petitioners seek a transfer to home confinement or compassionate release.
II. DISCUSSION
A. The motion to appoint counsel is DENIED.
There is no constitutional right to counsel in habeas proceedings. Cobas v.
Burgess, 306 F.3d 441, 444 (6th Cir. 2002). Because Petitioners’ claims lack merit,
in that they are non-cognizable in habeas review, the Court will deny Petitioners’
request for the appointment of counsel. See Lemeshko v. Wrona, 325 F. Supp. 2d
778, 788 (E.D. Mich. 2004).
B. The motion to expedite medication request is DENIED.
Petitioner Busby filed a motion to have this Court order medical personnel at
FCI-Milan to prescribe him Ritalin to treat his Attention Deficit Hyperactivity
Disorder.
Petitioner’s motion is denied because his request is unrelated to the allegations
contained in this petition. Moreover, for reasons that will be explained in greater
detail below, challenges to conditions of confinement cannot be brought in a habeas
petition. The Court denies the motion without prejudice to Petitioner Busby filing a
separate civil rights action in regards to his medication.
C. The motion to withdraw the motion for a stay is GRANTED.
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Petitioner Busby filed a motion to stay the proceedings. (ECF No. 12).
Petitioner has now filed a motion to withdraw the motion to stay. (ECF No. 13). The
motion to withdraw the motion to stay is GRANTED.
D. The motion to file a joint habeas petition and to expedite the petition
is GRANTED.
Petitioners filed a formal motion to proceed with a joint action.
It is normally improper for different petitioners to file a joint habeas petition
in which they seek relief from different convictions, sentences, or other forms of
detention. See Norton v. Parke, 892 F.2d 476, 478 (6th Cir. 1989). Petitioners,
however, appear to be challenging the same conditions of confinement at FCI-Milan.
In the interests of justice, the Court will let the Petitioners proceed together. The
Court also grants the motion to expedite the petition.
E. Petitioners’ claims are non-cognizable on habeas review.
Where a federal prisoner’s habeas petition seeks release from prison by
claiming that no set of conditions of confinement would be constitutionally
sufficient, the claim is properly construed as challenging the fact or extent of
confinement, which is a cognizable habeas claim under 28 U.S.C. § 2241. See Wilson
v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (citing Adams v. Bradshaw, 644 F.3d
481, 483 (6th Cir. 2011). On the other hand, conditions of confinement claims which
seek relief in the form of improvement of prison conditions or a transfer to another
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facility are not cognizable under § 2241. Id. (citing Luedtke v. Berkebile, 704 F.3d
465, 466 (6th Cir. 2013)).
Petitioners’ claims are non-cognizable in habeas; Petitioners do not allege that
no set of conditions of confinement would remedy the risk caused by Covid-19.
Petitioners allege among other things that prison staff members are not following
protocols for wearing face masks. Petitioners allege that insufficient face masks are
being provided to prisoners. Petitioners allege that there is insufficient social
distancing. Petitioners claim that there is insufficient sanitary equipment being
provided to the inmates. Petitioner argues that the risk of Covid-19 transmission at
FCI-Milan could be alleviated if facility wide testing for Covid-19 was ordered, if
everyone was ordered to wear a face mask and to socially distance, and if adequate
sanitary equipment was provided to all inmates. Petitioners do not allege that no
conditions of confinement would be sufficient to prevent an irreparable
constitutional injury at FCI-Milan; Petitioners’ claims are non-cognizable in a
habeas petition. Wilson v. Williams, 961 F.3d at 838.
Petitioners also seek a transfer to home confinement.
Under 18 U.S.C. § 3621(b), the Bureau of Prisons, not the judiciary, “is
responsible for designating the place of a prisoner’s imprisonment.” United States v.
Townsend, 631 F. App’x 373, 378 (6th Cir. 2015). A federal prisoner “enjoys no
statutory or constitutionally protected right, or entitlement, to transfer to…home
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confinement.” Heard v. Quintana, 184 F. Supp. 3d 515, 521 (E.D. Ky. 2016).
Petitioners are not entitled to habeas relief on this claim. Id.
Petitioners likewise cannot use a petition for a writ of habeas corpus to obtain
compassionate release. See Crowe v. United States, 430 F. App’x 484, 484–85 (6th
Cir. 2011). Petitioner Busby has already been denied a request for compassionate
release from his sentencing judge. To the extent that the other Petitioners have not
yet sought compassionate release from their sentencing judge, any such motion
should be directed to the sentencing judge and not to this Court. See Ambriz v. United
States, 465 F. Supp. 3d 630, 632 (N.D. Tex. 2020) (since the District Court had not
been sentencing court, it lacked jurisdiction to consider compassionate release
request; a district court, other than the sentencing court, lacks jurisdiction to consider
a motion for modification of an imposed term of imprisonment. 18 U.S.C.A. §
3582(c)).
Petitioner’s request for an order directing the FCI-Milan to test all of the
inmates for COVID-19 is denied. Claims by a prisoner alleging a lack of testing for
COVID-19 challenge the conditions of confinement and should be brought as a civil
rights action and not as a petition for a writ of habeas corpus. See Fahr v. Arizona,
No. CV2008114PCTDGCDMF, 2020 WL 3791535, at *3 (D. Ariz. 2020); Dillon v.
Wolf, No. 20-CV-479-SMY, 2020 WL 3316006, at *1 (S.D. Ill. 2020). Petitioners
may file suit in federal court for damages arising from a violation of a plaintiff’s
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constitutional rights by persons acting under the color of federal law. See Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395
(1971).
This Court will not convert the habeas petition into a civil right action.
Because of the vastly different procedural requirements for habeas petitions and
other civil actions brought by prisoners, a court confronted with a habeas petition
that is properly brought under 42 U.S.C. § 1983 or Bivens should dismiss the
petition, rather than “converting” the petition to a civil action brought pursuant to §
1983 or Bivens. See e.g. Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004)
(holding that the district court should have dismissed the habeas petitioner’s § 2241
petition without prejudice to allow petitioner to raise his potential civil rights claims
properly as a § 1983 action rather than to re-characterize it as a § 2254 petition
without notice to petitioner). The allegations are dismissed without prejudice to
Petitioners filing a new civil rights complaint or complaints.
III. CONCLUSION
The Petition for a Writ of Habeas Corpus brought pursuant to 28 U.S.C. §
2241 is DENIED.
A certificate of appealability is not needed to appeal the denial of a habeas
petition filed under § 2241. Witham v. United States, 355 F.3d 501, 504 (6th Cir.
2004); Petitioners need not apply for one before filing an appeal from the denial of
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their habeas petition. Petitioners are granted leave to appeal in forma pauperis; the
appeal would be taken in good faith. See Foster v. Ludwick, 208 F. Supp. 2d 750,
765 (E.D. Mich. 2002).
IV. ORDER
The Court DENIES the Petition for a Writ of Habeas Corpus.
The motion to appoint counsel (ECF No. 10) is DENIED.
The motion to expedite medical request (ECF No. 11) is DENIED.
The motion to withdraw the motion to stay (ECF No. 13) is GRANTED.
The motion to file a joint habeas petition (ECF No. 14) is GRANTED.
The motion to expedite the petition (ECF No. 15) is GRANTED.
Petitioners are GRANTED leave to appeal in forma pauperis.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT COURT
Dated: January 29, 2021
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