WRAGG et al v. ORTIZ et al

Filing 55

OPINION. Signed by Judge Renee Marie Bumb on 6/9/2020. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TROY WRAGG, et al.,
Petitioners

Civ. No. 20-5496 (RMB)

v.
DAVID E. ORTIZ, et al.,

OPINION

Defendants
Appearances:
Jeanne Locicero, Esquire
Tess Meiling Borden, Esquire
American Civil Liberties Union
of New Jersey Foundation
89 Market Street, 7th Floor
P.O. Box 32159
Newark, New Jersey 08102
Attorneys for Petitioners
John F. Basiak,Jr.,AUSA
Mark E. Coyne, AUSA
Elizabeth A. Pascal, AUSA
J. Andrew Ruymann, AUSA
John T. Stinson, AUSA
United States Department of Justice
Office of the U.S. Attorney
401 Market Street
P.O. Box 2098
Camden, New Jersey 08101
Attorneys for Respondents
Bumb, United States District Judge:
This matter comes before the Court upon Petitioners’ informal
request, under Federal Rule of Civil Procedure 60(b)(6), to vacate

this Court’s prior Order Of May 27, 2020.

Rule 60(b)(6) is a

catch-all provision providing litigants with a means to obtain
relief from a judgment for any reason “that justifies relief.”
Buck v. Davis, 137 S. Ct. 759, 777–78 (2017) (quoting Fed. R. Civ.
P. 60(b)(6)). “[A] district court may only grant relief under Rule
60(b)(6)
relief,

in
an

“extraordinary
extreme

and

circumstances
unexpected

where,

hardship

without
would

such

occur.”

Satterfield v. Dist. Attorney Philadelphia, 872 F.3d 152, 158 (3d
Cir. 2017) (quoting Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014)
(quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir.
1993)); see also Boughner v. Sec’y of Health, Ed. & Welfare, 572
F.2d 976, 978 (3d Cir. 1978)).
In the Order from which Petitioners seek relief, the Court
held

that

it

lacks

jurisdiction

over

the

habeas

portion

of

Petitioners’ hybrid habeas petition – civil rights complaint because

their

claims

relate

to

conditions

of

confinement.

Petitioners had asserted jurisdiction under 28 U.S.C. §2241 based
on the allegation that “there is no set of protective measures
that Respondents can feasibly implement to contain the spread of
COVID-19 in Fort Dix.”

(Petr’s Mem., Dkt. No. 30 at 38; Compl. ¶

133, Dkt. No. 1) (alleging “The current population of Fort Dix,
both of incarcerated individuals and the staff who come through on
a daily basis and work in the same confined space, ensures that
any effective measures that would mitigate Petitioners’ exposure
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to and risk of serious illness from COVID-19 are impossible to
implement.”)
The Court also ruled, in the alternative, that even assuming
habeas jurisdiction Petitioners failed to meet their burden of
showing that preliminary injunctive relief should be granted.

The

Court did note in Footnote 26 of its Opinion, relating to its
preliminary injunctive analysis, that two inmates, Michael Scronic
and Tommie Telfair, had averred in a conclusory manner that none
of the inmates were being evaluated by a nurse or doctor.

It is

this footnote which has caused a point of contention between the
parties.

Specifically, the Court’s footnote reads as follows:

Two inmates, in particular Scronic and Telfair, state
that “to [their] knowledge” none of the inmates have
been evaluated by a nurse or doctor, and Scronic believes
that inmates have COVID-19 and are not being tested.
Respondents have attempted to respond to these
conclusory and abstract opinions, contending that no
medical attention is being denied. To the extent that
Petitioners wish to press this position to show that
more than a few isolated incidents of failure to address
medical needs exists, they may seek to supplement the
record and the Court will reconsider its Opinion and
engage in fact-finding provided Petitioners can show
that a favorable finding in this regard would alter the
Court’s conclusion.

Petitioners interpret this footnote as the Court’s invitation
to engage in limited discovery.

It was not such an invitation.

As the Court noted, the declarations submitted by inmates Scronic
and Telfair were “conclusory and abstract opinions.” In opposition
to

Petitioners’

motion

for

preliminary
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injunctive

relief,

Respondents

attempted

nonetheless

to

respond

to

such

broad

accusations, introducing evidence that they were not denying the
medical needs of inmates. Thus, in footnote 26, the Court afforded
Petitioners the opportunity to supplement their declarations, to
give details where none had been provided.

Rather than providing

such evidence, such as the identities of the inmates referred to
in their declarations, for example, Petitioners complain that they
need discovery.

Yet, it is their own witnesses who made the

disturbing, but yet, conclusory allegations.
The Petitioners introduced the sworn declarations of four
inmates as evidence to establish deliberate indifference rising to
an Eighth Amendment violation.

For example, inmate Scronic swore

that since May 6 no one at the Camp had been evaluated for COVID19 symptoms.

In contradiction, however, he admitted that there

are routine temperature checks being done.
Telfair

also

confirmed

in

their

Inmates Valas and

declarations

that

routine

temperature checks are being done at least every other day.
(Although Valas swore “the highest temperature the thermometer
[used

by

staff]

registers

97.9

degrees

Fahrenheit,”

Valas

presented no explanation to support such bizarre statement. Docket
No. 30-5, at ¶ 27).

Moreover, the inmates complained in their

declarations that a number of inmates were not reporting their
symptoms for fear of being sent to quarantine.

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Of course, this

begs the question as to how Respondents can be deliberately
indifferent to inmates who express no health concerns.
Petitioners contend that this Court should, on a Motion to
Dismiss, accept as true the declarations of the inmates they
submitted and permit discovery to move forward.

The Court did,

and thus found that even resolving the disputes all in favor of
Petitioners, they failed to present such an extraordinary case as
to warrant the type of novel conditions-of-confinement habeas
claim suggested by the Supreme Court in Preiser v. Rodriguez in
1973, but never recognized by the Supreme Court or Third Circuit
Court of Appeals.1

The Court afforded Petitioners an opportunity

to put forward more facts to back up their conclusory, and to a
degree contradictory, accusations, but they have not done so.
Instead, they ask for discovery.

Respondents accuse Petitioners

of going on a discovery fishing expedition.

The Court agrees.

Because Petitioners appear to have cast a net too broad, they
should not be permitted to go fishing with the hopes they will
catch something to fill it.
Habeas petitioners are not entitled to discovery as a matter
of ordinary course.

Bracy v. Gramley, 520 U.S. 899, 904 (1997).

1

411 U.S. 475, 499 (1973) (“When a prisoner is put under additional
and unconstitutional restraints during his lawful custody, it is
arguable that habeas corpus will lie to remove the restraints
making the custody illegal.”))
5

They must show good cause.

Id.

Having failed to give substance

to their own witnesses’ conclusory statements, Petitioners will
not

be

permitted

to

go

looking

elsewhere.

Despite

affording

Petitioners the opportunity to elucidate their own witnesses’
statements, Petitioners sidestepped such opportunity to make their
case.

Nothing in the Petitioners’ latest submission presents

extraordinary circumstances that this Court should vacate its
Order dismissing the case for lack of jurisdiction, pursuant to
Fed. Rule 60(b)(6).
Finally, the Court takes this opportunity once again to
reiterate its view that a vulnerable inmate who is truly at risk
is able to pursue the statutory avenues of relief available to
him.

Counsel for Petitioners may perform a valuable service in

this regard.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: June 9, 2020

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