GALLO v. ORTIZ

Filing 13

OPINION. Signed by Judge Renee Marie Bumb on 2/16/2021. (rtm, )(nm)

Case 1:20-cv-16416-RMB Document 13 Filed 02/16/21 Page 1 of 14 PageID: 614

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
LOUIS N. GALLO, III
Petitioner
v.
DAVID E. ORTIZ, WARDEN
Respondent

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CIV. NO. 20-16416(RMB)

OPINION

Petitioner Louis N. Gallo, IIII, a prisoner confined in the
Federal Correctional Institution in Fort Dix, New Jersey (“FCI
Fort Dix”), filed a petition for writ of habeas corpus under 28
U.S.C. § 2241 on November 18, 2020. (Pet., Dkt. No. 1.) Petitioner
seeks immediate release from FCI Fort Dix to home confinement or
supervised release and other injunctive relief. (Pet. ¶15, Dkt.
No.

1.)

For

the

reasons

discussed

below,

the

Court

denies

Petitioner’s CARES Act claim, lacks jurisdiction over Petitioner’s
claim for Time Credits under the First Step Act, and the Court
will stay Petitioner’s Eighth Amendment claim, pending resolution
of his emergency motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A)(i).
I.

THE PARTIES’ ARGUMENTS
Petitioner seeks habeas relief on the following grounds: (1)

the Bureau of Prisons granted his request for release to home
confinement under the CARES Act, but the authorization was revoked

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based on a faulty computation of his PATTERN recidivism risk score;
(2) the Bureau of Prisons refuses to apply Petitioner’s Time
Credits earned under the First Step Act; and (3) Petitioner was
infected

with

COVID-19

while

in

pre-release

quarantine

and

continues to suffer lingering symptoms, without having seen a
doctor in two months, in violation of the Eighth Amendment. (Pet.,
Dkt. No. 1.)
On November 30, 2020, Respondent filed an answer to the
petition. (Answer, Dkt. No. 6.) Respondent opposes habeas relief,
arguing that: (1) Petitioner failed to exhaust administrative
remedies; (2) the Court lacks jurisdiction to review the BOP’s
home

confinement

decisions,

which

are

committed

to

agency

discretion by statute; (3) Petitioner is not entitled to Time
Credits under the First Step Act; (4) the Court lacks jurisdiction
over

Petitioner’s

Petitioner’s

condition

conditions

of

of

confinement

confinement

do

not

claims;
violate

(5)
the

Constitution. (Id.)
In reply, Petitioner claims: (1) the BOP revoked Petitioner’s
release to home confinement under the CARES act after changing the
PATTERN risk tool to delete consideration of FSA programs completed
by inmates; (2) Respondent did not accurately measure Petitioner’s
need for programs under the FSA; (3) exhaustion of administrative
remedies is futile; and (4) BOP has failed to mitigate the spread
of COVID-19 at FCI Fort Dix, and acted in deliberate indifference

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to inmate health and safety, based on a recent severe outbreak.
(Reply, Dkt. No. 8 at 15-28.) 1 Petitioner fears re-infection with
COVID-19

because

he

has

medical

risk

factors

for

serious

complications, according to the CDC Guidelines. (Petr’s Mem., Dkt.
No. 1-1 at 8, citing Ex. K, Dkt. No. 1-2 at 16.)
The Court directed Respondent to file a supplemental answer,
describing the current conditions at FCI Fort Dix. (Order, Dkt.
No. 10.) In his supplemental answer, Respondent stated that on
December 24, 2020, three inmates tested positive for COVID-19 in
Petitioner’s housing area, the A-Wing of the Camp, and were moved
to an isolation unit. (Suppl. Answer, Dkt. No. 11 at 1, citing
Updated Declaration of James Reiser (“Updated Reiser Decl.”), Dkt.
No. 12.)

Consequently, all inmates in the A-Wing were tested, and

Petitioner was negative, but 32 additional inmates were positive.
(Id.) Inmates in the A-Wing were placed in exposure quarantine and
will be tested again before quarantine ends. (Id.) Twenty-seven
inmates tested positive in the B-Wing of the Camp. All but one of
the Camp inmates recovered as of January 15, 2021, according to
CDC Guidelines. (Id. at 2.) Petitioner lodged an emergency motion
for

compassionate

release

under

18

U.S.C.

§

3582

with

his

sentencing court on January 8, 2021. (Id., citing United States v.

Page citations to documents on the Court’s docket are the page
numbers assigned by the Official Court Electronic Document Filing
System, CM/ECF.
1

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Gallo, 12-cr-20630.) 2 Respondent submits the Court should not
extend habeas jurisdiction to conditions of confinement claims
where other avenues for relief are available. (Suppl. Answer, Dkt.
No. 11 at 2.)
II.

DISCUSSION
A.

CARES Act Claim
1.

The CARES Act

Jurisdiction under 28 U.S.C. § 2241 exists, in relevant part,
where a prisoner alleges “[h]e is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§

2241(c)(3).

While

jurisdiction

exists

over

a

claim

that

a

prisoner is in custody in violation of federal law based on an
erroneous statutory interpretation by an agency, 3 Petitioner has
failed to state a claim. 4 Petitioner contends the BOP erroneously
United States v. Howard et al., 12-cr-20630 (S.D. Fla. Jan. 8,
2021) (Emergency Mot. Reduce Sentence, Dkt. No. 451). Available
at www.pacer.gov.
2

See Cheek v. Warden of Fed. Med. Ctr., No. 20-10712, 2020 WL
6938364, at *2–3 (5th Cir. Nov. 24, 2020) (“A challenge to the
BOP's or Attorney General's interpretation of the [CARES Act] would
make judicial review appropriate”); Valenta v. Ortiz, No. CV 203688 (NLH), 2020 WL 2124944, at *2 (D.N.J. May 5, 2020)
(“Petitioner's argument that he is in custody of the United States
in violation of the CARES Act fits within th[e] definition [of 28
U.S.C. § 2241(c)(1), (3).”])
3

4 There are disputed issues of fact raised in the petition, the

answer, and the reply concerning Petitioner’s exhaustion of
available
administrative
remedies.
Because
exhaustion
of
administrative remedies under § 2241 is not jurisdictional, the
Court will deny Petitioner’s CARES Act claim on the merits without

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computed his PATTERN score, which led to denial of release to home
confinement because his score was low and not minimum. As discussed
below, the BOP has discretion to consider a PATTERN Score as one
of many factors in determining whether to release a prisoner to
home confinement under the CARES Act, and the CARES Act does not
prohibit the BOP from changing the PATTERN tool.
This Court has previously described the CARES Act and its
implementation by the Attorney General and the BOP:
Before the CARES Act was passed, 18 U.S.C. §
3624(c)(2) provided the BOP with the authority
to “place a prisoner in home confinement for
the shorter of 10 percent of the term of
imprisonment of that prisoner or 6 months.” 18
U.S.C. § 3624(c)(2) (effective July 19, 2019).
As part of The CARES Act, Congress sought to
address the spread of the coronavirus in
prisons by permitting BOP to expand the use of
home confinement under § 3624(c)(2). See Pub.
L. No. 116-36, § 12003(b)(2). Upon direction
of the Attorney General, Section 12003(b)(2)
of the CARES Act temporarily suspends the
limitation of home confinement to the shorter
of 10 percent of the inmate’s sentence or 6
months.
By memorandum dated March 26, 2020, the
Attorney
General
directed
the
BOP
to
“prioritize the use of [its] various statutory
resolving the exhaustion issue. See Callwood v. Enos, 230 F.3d
627, 634 (3d Cir. 2000) (“Although there is no statutory exhaustion
requirement attached to § 2241, we have consistently applied an
exhaustion requirement to claims brought under § 2241”); Gambino
v. Morris, 134 F.3d 156, 172 (3d Cir. 1998) (judicially created
exhaustion requirement is subject to futility exception); Wilson
v. MVM, Inc., 475 F.3d 166, 175 (3d Cir. 2007) (describing
differences between prudential and jurisdictional exhaustion
requirements).

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authorities to grant home confinement for
inmates seeking transfer in connection with
the ongoing COVID-19 pandemic.” 5 The Attorney
General specifically directed the BOP to
consider the totality of the circumstances of
each inmate, the statutory requirements for
home confinement, and a non-exhaustive list of
discretionary factors including: the age and
vulnerability of the inmate; the security
level of the facility holding the inmate; the
inmate’s conduct while incarcerated; the
inmate’s score under the Prisoner Assessment
Tool Targeting Estimated Risk and Needs
(“PATTERN”);
whether
the
inmate
has
a
demonstrated and verifiable reentry plan that
will prevent recidivism and ensure public
safety
(including
verification
that
the
conditions under which the inmate would be
confined upon release would present a lower
risk of contracting COVID-19 than the inmate
would face at their current facility); and the
inmate’s crime of conviction. (Reiser, Decl.
¶3, ECF No. 5-2 at 2.)
On April 3, 2020, the Attorney General
exercised authority under The CARES Act to
The
further
increase
home
confinement. 6
Attorney General authorized the Director of
the BOP to immediately maximize transfers to
home confinement of all appropriate inmates
held at FCI Oakdale, FCI Danbury, FCI Elton,
and other similarly situated Bureau facilities
where
COVID-19
was
materially
affecting
operations.
On April 5, 2020, the BOP gave the following
guidance on COVID-19 and home confinement:
Available at
https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.p
df (last visited February 10, 2021.)
5

Available at
https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_a
pril3.pdf
(last visited on Apr. 16, 2020) (last visited February 10,
2021).
6

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Inmates do not need to apply to be
considered for home confinement. Case
management staff are urgently reviewing all
inmates to determine which ones meet the
criteria
established
by
the
Attorney
General. The Department has also increased
resources to review and make appropriate
determinations as soon as possible. While
all
inmates
are
being
reviewed
for
suitability, any inmate who believes they
are [sic] eligible may request to be
referred to Home Confinement and provide a
release plan to their Case Manager. The BOP
may contact family members to gather needed
information
when
making
decisions
concerning Home Confinement placement.
Importantly, on April 15, 2020, the BOP
issued additional guidance regarding home
confinement under the CARES Act, removing
the requirement that the inmate serve up to
two-thirds of the sentence imposed before
eligibility for home confinement. (Reiser
Decl., ¶5, ECF No. 5-2 at 3.) The new
criteria include the following:
a. Primary
violent;

or

Prior

Offense

is

not

b. Primary or Prior Offense is not a sex
offense;
c. Primary
terrorism;

or

Prior

Offense

is

not

d. No detainer;
e. Mental Health Care Level is less than
IV;
f. PATTERN (First Step Act tool used to
determine risk of recidivism) is Minimum;
g. No incident reports in past 12 months;
h. U.S. Citizen; and

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i. Viable Release Plan.
(Reiser Decl., ¶5, ECF No. 5-2 at 3,) An
inmate’s Unit Team evaluates an inmate to make
a recommendation as to whether release to home
confinement is appropriate. (Id., ¶6.)
If an inmate is deemed appropriate for home
confinement, the Unit Team will forward its
recommendation to the Warden and then to the
Residential
Reentry
Manger
for
a
home
confinement date in the inmate’s release
district. (Id.) If an inmate is granted home
confinement, he or she will be quarantined for
a 14-day period prior to transfer, based on
the Attorney General’s guidance. (Id.)
Furando v. Ortiz, No. CV 20-3739(RMB), 2020 WL 1922357, at *2–3
(D.N.J.

Apr.

21,

2020),

reconsideration

denied,

No.

CV

20-

have

the

3739(RMB), 2020 WL 3264161 (D.N.J. June 17, 2020).
2.
“It

is

Analysis
the

BOP

and

the

Attorney

General

who

discretion [under the CARES Act] to consider the appropriateness
of home release based on certain statutory and discretionary
factors.” Cheek v. Warden of Fed. Med. Ctr., No. 20-10712, 2020 WL
6938364, at *3 (5th Cir. Nov. 24, 2020). The Attorney General
exercised his discretion to suspend the time limitation for home
confinement under 28 U.S.C. § 3624(c)(2), and in doing so, on March
26,

2020,

directed

the

BOP

to

consider

the

totality

of

the

circumstances of each inmate, the statutory requirements for home
confinement, and a non-exhaustive list of discretionary factors.
Although one of those discretionary factors the Attorney General

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told the BOP to consider was an inmate’s risk of recidivism using
the PATTERN tool, the Attorney General did not direct the BOP to
release

prisoners

with

a

minimum

PATTERN

score,

nor

did

the

Attorney General prohibit the BOP from making changes to the
PATTERN tool. Rather, the Attorney General permitted the BOP wide
discretion in determining when to release a prisoner to home
confinement based on the risks posed by COVID-19 in the prisons.
Respondent submits that it denied Petitioner release to home
confinement based on his prior criminal history. (Answer, Dkt. No.
4 at 39, citing Declaration of James Reiser 7 (“Reiser Decl.”) ¶22
and Ex. 1.) The BOP has discretion under the CARES Act, through
the Attorney General’s Memoranda cited above, to consider a nonexhaustive list of factors in determining whether to release a
prisoner to home confinement under § 3624(c)(2). Petitioner has
not shown that the BOP failed to exercise the wide discretion it
has been given by the Attorney General pursuant to the CARES Act.
Thus, Petitioner has not established that he is in custody based
on the BOP’s erroneous statutory interpretation of the CARES Act,
and the Court will deny Petitioner’s CARES Act claim.
B.

First Step Act Claim

Jurisdiction is proper under 28 U.S.C. § 2241 where a prisoner
challenges the duration of his confinement. Hare v. Warden Ortiz,
James Reiser is a Case Management Coordinator at FCI Fort Dix.
(Reiser Decl. ¶1, Dkt. No. 4-1.)
7

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No. CR 18-588-1(RMB), 2021 WL 391280, at *1 n.2 (D.N.J. Feb. 4,
2021) (citing Leamver v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002)).
Pursuant to 18 U.S.C. § 3624(g)(1)(A), a prisoner who “has earned
time credits under the risk and needs assessment system ... in an
amount that is equal to the remainder of the prisoner's imposed
term of imprisonment” may be released to a residential reentry
center (“RRC”), home confinement or supervised release, subject to
the provisions under § 3624(g)(1)(B-D) and (g)(2, 3). The Third
Circuit has held that habeas jurisdiction exists over a prisoner’s
claim that the BOP miscalculated his sentence, where the claim “if
successful, would result in his speedier release from custody[.]”
Eiland v. Warden Fort Dix FCI, 634 F. App'x 87, 89 (3d Cir. 2015).
In his memorandum in support of his petition, Petitioner
alleged “more than two months after Judge Bumb's ruling in Goodman,
the Respondent's staff are still insisting that they do not have
to apply FSA credits until January of 2022.” (Petr’s Mem., Dkt.
No. 1-1 at 14.) 8 Petitioner’s claim that the BOP has refused to
apply his Time Credits under the First Step Act, if successful,
would result in earlier release from custody if he has earned
Because Petitioner raises a claim based on a statutory
interpretation of the First Step Act, exhaustion of administrative
remedies is excused. See Goodman v. Ortiz, No. CV 20-7582 (RMB),
2020 WL 5015613, at *3 (D.N.J. Aug. 25, 2020) (citing Coleman v.
U.S. Parole Comm'n, 644 F. App'x 159, 162 (3d Cir. 2016)
(“exhaustion is not required with regard to claims which turn only
on statutory construction”) (citing Harris v. Martin, 792 F.2d 52,
54 n. 2 (3d Cir. 1986.))
8

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sufficient credits for release prior to January 15, 2022, the date
the BOP told Petitioner it would apply his Time Credits. In his
reply brief, Petitioner also challenged the BOP’s assessment of
his

need

for

certain

categories

of

evidence-based-recidivism-

reduction programs and productive activities, challenged the BOP’s
statutory interpretation concerning calculation of Time Credits
under the FSA, and criticized the BOP’s slow implementation of the
FSA risk and needs assessment system.
The record is insufficient for the Court to evaluate whether
Petitioner has earned sufficient Time Credits under the First Step
Act, in accordance with this Court’s statutory interpretation in
Hare, 2021 WL 391280, to determine whether immediate application
of the Time Credits earned by Petitioner would result in his
speedier release from custody. The Court will direct Respondent to
supplement the record by calculating Petitioner’s Time Credits
consistent with this Court’s Opinion and Order in Hare, providing
the date when Petitioner was assessed with each category of “need”
under the FSA [including needs assessed upon intake that were not
required to be reassessed under the FSA], and Petitioner’s start
date and completion date of all approved EBRR programs and PAs
completed after December 21, 2018, for which he had a need. The
Court will reserve determination of whether Petitioner is entitled
to a writ of habeas corpus. If upon further review, as directed,

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Respondent concludes that habeas relief is warranted, Respondent
shall immediately advise the Court.
C.

Eighth Amendment Conditions of Confinement Claim

The Third Circuit Court of Appeals has not yet recognized
jurisdiction under 28 U.S.C. § 2241 for a convicted prisoner to
seek release based on allegations that his or her conditions of
confinement violate the Eighth Amendment. 9 While the Supreme Court
has indicated that such a claim might exist, the Supreme Court has
not conclusively found jurisdiction under § 2241 for a conditions
of confinement claim. See Preiser v. Rodriguez, 411 U.S. 475, 500
(1973) (“we need not in this case explore the appropriate limits
of habeas corpus as an alternative remedy to a proper action under
s 1983”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1862–63 (2017) (“we
have left open the question whether [detainees] might be able to
challenge their confinement conditions via a petition for a writ
of habeas corpus.”)

“Although the Court of Appeals in Hope v. Warden York County
Prison, 972 F.3d 310 (3d Cir. 2020) held that immigration detainees
could challenge their conditions of confinement as they relate to
COVID-19 in a habeas petition under 28 U.S.C. § 2241, it did not
expressly extend that rule to state prisoners who are in custody
pursuant to a criminal judgment.” Massey v. Estock, No. 1:20-CV271, 2021 WL 195264, at *1 (W.D. Pa. Jan. 20, 2021). The same is
true for federal prisoners in custody pursuant to a criminal
judgment.
9

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Petitioner has an emergency motion for compassionate release
pending before his sentencing court. See supra n. 1. Given that
there is another avenue for Petitioner’s release from Fort Dix
based on the COVID-19 outbreak, and that habeas jurisdiction has
not been extended to conditions of confinement claims by convicted
prisoners in the Third Circuit or the Supreme Court, this Court
will stay Petitioner’s Eighth Amendment claim under 28 U.S.C. §
2241, pending Petitioner’s attempts to obtain release through a
motion for reduction of sentence under the First Step Act, 18
U.S.C. § 3582(c)(1)(A)(i). This does not preclude Petitioner from
bringing an Eighth Amendment claim for injunctive relief under 28
U.S.C.

§

1331,

after

exhausting

administrative

remedies 10

as

required by 42 U.S.C. § 1997e(a).
III. CONCLUSION
For the reasons discussed above, the Court will deny the
petition for writ of habeas corpus in part, order supplemental
briefing on the First Step Act claim, and stay Petitioner’s Eighth
Amendment conditions of confinement claim pending determination of
Petitioner’s

motion

to

reduce

sentence

under

18

U.S.C.

§

3582(c)(1)(A)(i) in the Southern District of Florida.

If an inmate’s administrative remedy request to the Warden raises
an “emergency” that “threatens the inmate’s immediate health or
welfare,” the Warden shall respond [to the inmate’s administrative
remedy request] not later than the third calendar day after
filing.” 28 C.F.R. § 542.18.
10

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An appropriate Order follows.

Dated: February 16, 2021

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge