Robertson v. FCI Berlin, Warden
///ORDER granting 5 Motion for Summary Judgment. Respondents motion for summary judgment is GRANTED, and the petitioner's § 2241 petition is DENIED. The clerk is directed to enter judgment and close this case. So Ordered by Chief Judge Landya B. McCafferty. (gla)
Case 1:22-cv-00027-LM Document 10 Filed 09/15/22 Page 1 of 8
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Darryle E. Robertson, Jr.
Civil No. 22-cv-27-LM
Opinion No. 2022 DNH 114 P
Robert Hazlewood, Warden, Federal
Correctional Institution, Berlin
Darryle E. Robertson, Jr., a prisoner at the Federal Correctional Institution
in Berlin, New Hampshire (“FCI Berlin”), has filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2241, challenging the conditions of his confinement
at FCI Berlin during the COVID-19 pandemic. See doc. no. 1. Before the court is
the respondent FCI Berlin Warden Robert Hazelwood’s motion for summary
judgment (doc. no. 5).
Summary judgment is appropriate in habeas proceedings . . . when “the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); see also Fed. R. Civ. P. 81(a)(2); Rule 11
of the Rules Governing § 2254 Cases.
Bader v. Warden, No. 02-cv-508-JD, 2003 DNH 90, 2003 U.S. Dist. LEXIS 8955, at
*8-9, 2003 WL 21228520, at *3 (D.N.H. May 28, 2003), aff’d, 488 F.3d 483 (1st Cir.
2007). The court construes petitioner’s pleadings liberally, considering his pro se
status. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
Case 1:22-cv-00027-LM Document 10 Filed 09/15/22 Page 2 of 8
In 2003, Robertson pleaded guilty in the District of Maryland to violations of
21 U.S.C. § 846, and that court sentenced him to 360 months of imprisonment. See
United States v. Robertson, No. 1:01-cr-00304-JFM (D. Md. Apr. 30, 2003) (ECF No.
406), aff’d, No. 07-4076, 2007 WL 4102749 (4th Cir. Nov. 19, 2007). He is presently
incarcerated at FCI Berlin, a Federal Bureau of Prisons (“BOP”) facility, where four
distinct COVID-19 outbreaks have occurred since March 2020, see Dec. of Christine
Larin (Feb. 16, 2022) ¶ 5 (Doc. 5-1, at 2) (“Larin Dec.”).
Robertson alleges that the most recent outbreak of COVID-19 at FCI Berlin
that occurred in early 2022 created conditions of imprisonment amounting to
“extreme penalization” which caused him “mental exhaustion and fear of living in
the midst of a deadly pandemic.” Doc. No. 1 at 2. Robertson asserts that the
facility’s COVID-19 response has placed severe limits on his access to out-of-cell
time and educational, recreational, and psychological services. See doc. no. 9 at 4.
He claims that the Warden’s failure to routinely test the staff members who
regularly enter and exit the facility has allowed COVID-19 outbreaks to occur,
resulting in the implementation of restrictive conditions of confinement that violate
his rights under the Eighth Amendment. Robertson seeks release from prison
custody or an order directing that the remainder of his sentence be served in home
The background facts are undisputed except where otherwise indicated.
Case 1:22-cv-00027-LM Document 10 Filed 09/15/22 Page 3 of 8
FCI Berlin’s restrictions during the COVID-19 pandemic have included
inmate testing procedures, vaccination, and quarantine and isolation protocols, as
prescribed by the BOP’s Pandemic Response Plan, which the BOP established in
conjunction with guidance from the Centers for Disease Control and Prevention
(“CDC”), the World Health Organization (“WHO”), and the U.S. Department of
Justice. See Larin Dec. ¶ 6 (Doc. 5-1, at 2). Employing such procedures, FCI Berlin
has effectively managed each of the COVID-19 outbreaks that have occurred at the
facility. Id. ¶ 5. There have been no inmate deaths and no hospitalizations due to
the virus at FCI Berlin. See id. The facility has successfully contained and
effectively eliminated the virus from the facility each time an outbreak has
occurred. See id.
The most recent outbreak of COVID-19 at FCI Berlin, which started in early
January 2022, see id. ¶ 6, infected a total of 326 inmates and 50 staff members
before the State declared it had ended on March 7, 2022. See N.H. Dep’t of Health
and Human Services Weekly COVID-19 Update (“DHHS Update”) - Week of Sept. 8,
2022, https://www.covid19.nh.gov/news/dhhs-updates (last visited Sept. 8, 2022).
Robertson was among those infected during that outbreak; he was quarantined in
January 2022 and recovered without incident. See Larin Dec. ¶ 12 (doc. no. 5-1, at
3). The quarantine procedures implemented during that outbreak coincided with a
nationwide BOP facility lockdown in late January/early February 2022, see id. ¶¶ 610. That lockdown came to an end in early February 2022, and on February 10,
Case 1:22-cv-00027-LM Document 10 Filed 09/15/22 Page 4 of 8
2022, the last three previously positive FCI Berlin inmates were released from
quarantine to the general prison population.2 See id. ¶ 6.
The Eighth Amendment requires the government to provide “humane
conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). An
Eighth Amendment conditions-of-confinement claim has both an objective and a
subjective component. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective
component is satisfied when the deprivation denies a prisoner “‘the minimal
civilized measure of life’s necessities,’” id. (citation omitted), or exposes him or her
to a substantial risk of serious harm, Farmer, 511 U.S. at 834.
To satisfy the subjective component of an Eighth Amendment conditions-ofconfinement claim, a prisoner must present evidence of a prison official’s culpable
state of mind. See Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir. 2014). A showing of
“deliberate indifference” to conditions posing a substantial risk of serious harm will
The BOP presently classifies FCI Berlin’s operational level as “Level 2”
on a scale of 1 to 3, with higher “Level 3” protocols reserved for implementation
during outbreaks or other times of heightened risk, based on the facility’s
vaccination rate, medical isolation rate, and/or the community transmission
rate. See BOP COVID-19 Modified Operations Plan & Matrix,
visited Sept. 8, 2022). At Level 2, facilities implement “Moderate Modifications”
for COVID-19 infection control, including the use of face coverings indoors, social
distancing, staff self-monitoring/reporting of symptoms, and capacity caps on
indoor recreation, education, psychological services and programs. See BOP
Modified Operational Levels, https://www.bop.gov/coronavirus/index.jsp (last
visited Sept. 8, 2022).
Case 1:22-cv-00027-LM Document 10 Filed 09/15/22 Page 5 of 8
satisfy the subjective prong. See Farmer, 511 U.S. at 834. To demonstrate
deliberate indifference, the prisoner must show that prison officials were aware of
facts that gave rise to an inference that a substantial risk of serious harm existed;
that they drew the inference that such a risk existed; and that they did not take
reasonable steps to ameliorate the risk. See id. at 828-29. The requisite mental
state is similar to criminal recklessness, “‘characterized by obduracy and
wantonness, not inadvertence or error in good faith.’” Mateo v. Warden, No. 20-cv1012-PB, 2021 DNH 089, 2021 WL 2109748, at *3, 2021 U.S. Dist. LEXIS 98383, at
*7 (D.N.H. May 24, 2021) (quoting Leite v. Bergeron, 911 F.3d 47, 52–53 (1st Cir.
2018)). A showing of a prison official’s inadvertence or negligence is insufficient to
satisfy the subjective component of an Eighth Amendment claim. See Kosilek, 774
F.3d at 83; Ruiz–Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007).
With respect to the objective component of the inquiry, this Court notes that
Robertson received both doses of the Moderna vaccine plus a booster in 2021 while
in BOP custody,3 and it is undisputed that he does not have any underlying health
conditions associated with a high risk of severe COVID-19, based on CDC guidance.
See Larin Dec. ¶¶ 11-12. Although he tested positive for COVID-19 during the most
recent outbreak, he recovered without incident and was released from quarantine
The FCI Berlin Health Services Department serves approximately 750
inmates. See Larin Dec. ¶ 2. As of September 8, 2022, a total of 714 inmates and
153 staff members at FCI Berlin had been fully vaccinated. See BOP, COVID-19
Vaccine Implementation, https://www.bop.gov/coronavirus/index.jsp (last accessed
Sept. 8, 2022).
Case 1:22-cv-00027-LM Document 10 Filed 09/15/22 Page 6 of 8
on or before February 10, 2022, when the last three prisoners who had previously
tested positive were released to the general prison population.4 See id. ¶¶ 6-11.
But even assuming, without deciding, that Robertson has presented evidence
sufficient to raise a genuine issue of material fact as to whether he has been exposed
to a substantial risk of serious harm, he has not presented evidence upon which any
reasonable factfinder could find any FCI Berlin official’s deliberate indifference to
that risk of harm. As the undisputed facts in the Larin Declaration indicate,
officials at FCI Berlin have taken a comprehensive approach to dealing with the
risks of COVID-19 infection in an institutional environment. Neither the fact that
four outbreaks have occurred in two years, nor the Warden’s failure to require
routine, surveillance testing of all staff members, provides an evidentiary basis for a
factfinder to conclude that the facility’s response has amounted to deliberate
indifference, under the circumstances. See Lawson v. Pritzer, No. 21-cv-4063MMM, 2022 U.S. Dist. LEXIS 43962, at *7, 2022 WL 757932, at *2 (C.D. Ill. Mar.
11, 2022) (failure to implement routine staff testing, standing alone, did not
manifest deliberate indifference given that facility’s overall response to COVID-19
As of September 8, 2022, BOP reported zero positive cases of COVID-19
among inmates and eight “confirmed active” cases among FCI Berlin employees, see
BOP COVID-19 Cases, Sept. 8, 2022, https://www.bop.gov/coronavirus/index.jsp (last
visited Sept. 8, 2022). The undisputed evidence here indicates that staff members
testing positive have been required to quarantine at home until they received
medical clearance to return to work. See Larin Dec. ¶ 13. Information published by
the State of New Hampshire states that since the early 2022 outbreak ended on or
before March 7, 2022, no further COVID-19 outbreaks have occurred at FCI Berlin,
see DHHS Update – Week of Sept. 8, 2022, https://www.covid19.nh.gov/news/dhhsupdates (last visited Sept. 8, 2022).
Case 1:22-cv-00027-LM Document 10 Filed 09/15/22 Page 7 of 8
was aimed at decreasing risk of outbreaks); Wilson v. Ponce, No. 2:20-cv-4451-MWF
(MRWx), 2022 U.S. Dist. LEXIS 33963, at *17-18, 2022 WL 2155119, at *6 (C.D.
Cal. Feb. 2, 2022) (petitioners’ expert’s preference for surveillance testing in lieu of
targeted testing regimen implemented at BOP facility reflected a difference of
medical opinion, not deliberate indifference), appeal filed, No. 22-55563 (9th Cir.
Apr. 1, 2022); see also Mateo, 2021 WL 2109748, at *3 n.6, 2021 U.S. Dist. LEXIS
98383, at *8 n.6 (evidence of widespread April 2021 outbreak of COVID-19 at FCI
Berlin, without more, did not establish that the BOP has been deliberately
indifferent to risks posed by COVID-19 (citing Farmer, 511 U.S. at 844 (“[P]rison
officials who actually knew of a substantial risk to inmate health or safety may be
found free from liability if they responded reasonably to the risk, even if the harm
ultimately was not averted.”); Wilson v. Williams, 961 F.3d 829, 842-43 (6th Cir.
2020) (rejecting contention that BOP “was deliberately indifferent to petitioners’
health and safety because [its] actions have been ineffective at preventing the
spread of COVID-19”)).
To be sure, the pandemic response protocols at FCI Berlin have placed
substantial burdens on inmates including Robertson -- especially during outbreaks
when the facility has quarantined or temporarily isolated prisoners and restricted
access to group activities, services, and programs, to control the spread of the virus.
But there is no evidence suggesting that the burdens associated with those protocols
have been implemented with wanton or reckless indifference, or with any subjective
awareness of any substantial risk of serious harm to Robertson. In the absence of
Case 1:22-cv-00027-LM Document 10 Filed 09/15/22 Page 8 of 8
evidence that prison officials at FCI Berlin have been deliberately indifferent to a
substantial risk of serious harm to Robertson, the Eighth Amendment claims in this
matter are properly resolved as a matter of law, without a hearing. The Court
grants the respondent’s motion for summary judgment (doc. no. 5) and denies
Robertson’s § 2241 petition.
For the foregoing reasons, the respondent’s motion for summary judgment
(doc. no. 5) is GRANTED, and the petitioner’s § 2241 petition is DENIED. The clerk
is directed to enter judgment and close this case.
Landya B. McCafferty
United States District Judge
September 15, 2022
Darryle E. Robertson, Jr., pro se
Seth Aframe, Esq.
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