VENDETTI v. ORTIZ

Filing 8

OPINION. Signed by Judge Noel L. Hillman on 1/11/2022. (tf, n.m.)

Case 1:21-cv-05193-NLH Document 8 Filed 01/11/22 Page 1 of 7 PageID: 68

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
RICO J. VENDETTI,
:
:
Petitioner,
:
Civ. No. 21-5193 (NLH)
:
v.
:
OPINION
:
:
DAVID E. ORTIZ,
:
:
Respondent.
:
______________________________:
APPEARANCES:
Rico J. Vendetti
20484-055
Fort Dix Federal Correctional Institution
P.O. Box 2000
Joint Base MDL, NJ 08640
Petitioner pro se
HILLMAN, District Judge
Petitioner Rico J. Vendetti filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 alleging an ongoing
failure by the Bureau of Prisons (“BOP”) to properly address and
contain COVID-19 and its emerging variants at FCI Fort Dix.
No. 1.

He also moves to amend the petition to include claims

that the lockdown imposed has restricted his ability to
participate in programs and services that would earn him good
time credits.

ECF No. 6.

ECF

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Petitioner states “the COVID-19 virus is an element that
adds too great a burden to the Petitioner’s sentence that
warrants a further review under the factors set forth in [18
U.S.C.] § 3553.

Further, the Court should consider the chilling

effect of the conditions of confinement protected by the Eighth
Amendment of the U.S. Constitution.”

ECF No. 1 at 9.

This

Court lacks the authority to modify Petitioner’s sentence under
§ 3553 as that section is reserved for action by the sentencing
court.1

Therefore, the Court considers whether Petitioner’s

allegations of Eighth Amendment violations support jurisdiction
under § 2241.
Section 2241 states in relevant part that “[t]he writ of
habeas corpus shall not extend to a prisoner unless [h]e is in
custody under or by color of the authority of the United States
or . . . [h]e is custody in violation of the Constitution or
laws or treaties of the United States.”
2241(c)(1), (3).

28 U.S.C. §§

Neither the Supreme Court nor the Third

Circuit have issued a precedential decision regarding convicted
and sentenced federal prisoners’ ability to seek release via a
writ of habeas corpus due to unconstitutional conditions of

Petitioner received a 240-month sentence from the United States
District Court for the Western District of New York. United
States v. Vendetti, No. 10-cr-0360 (W.D.N.Y. May 9, 2016) (ECF
No. 591). The sentencing court denied his motion for
compassionate release. Id. (Feb. 2, 2021) (ECF No. 734).
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confinement.

The Third Circuit has permitted civil immigration

detainees to challenge the constitutionality of their conditions
of confinement in a habeas petition under § 2241 based on the
extraordinary circumstances of the COVID-19 pandemic.

Hope v.

Warden York Cty. Prison, 972 F.3d 310, 324 (3d Cir. 2020).
However, it declined to decide in Hope “whether a § 2241 claim
may be asserted in less serious circumstances.”

Id. at 325 n.5.

After considering relevant Supreme Court and Third Circuit
precedent, this Court concluded that convicted federal prisoners
are not automatically barred from filing § 2241 petitions
challenging their conditions of confinement, but they may do so
only in extremely limited circumstances.

Whiteside v. Fort Dix

Fed. Prison, No. 20-5544, 2021 WL 2935363 (D.N.J. July 13, 2021)
(citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); Hope,
972 F.3d 310).

“As the Supreme Court has instructed: ‘habeas

corpus is an extraordinary remedy whose operation is to a large
extent uninhibited by traditional rules of finality and
federalism, its use has been limited to cases of special
urgency, leaving more conventional remedies for cases in which
the restraints on liberty are neither severe nor immediate.’”
Hope, 972 F.3d at 324 (quoting Hensley v. Mun. Court, San Jose
Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)).

See also

Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (“Our
precedent supports the conclusion that where a petitioner claims
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that no set of conditions would be constitutionally sufficient
the claim should be construed as challenging the fact or extent,
rather than the conditions, of the confinement.”).

Petitioner

has not shown that such conditions are currently present at FCI
Fort Dix.
Petitioner argues social distancing is impossible at Fort
Dix and the buildings themselves are “a breeding ground for
germs that spread the COVID-19 virus.”

ECF No. 1 at 10.

He

also alleges that Fort Dix has not provided the inmates with
cleaning supplies, soap, or hand sanitizer.

Id. at 10-11.

He

states the BOP’s reopening of prisoner transfers coupled with
the emerging variant strains poses serious risks to his health
and safety.

“The BOP's primary and ongoing failure has been its

unwillingness to implement social distancing, despite clear
public health guidance that it is necessary to prevent COVID-19
infection.”

Id. at 13.

“Correctional officers move between the

Camp and the main facility compounds to this day, potentially
spreading the virus between the various areas of the prison.”
Id. at 18.

He also asserts that “studies show mutations in the

coronavirus could reduce or even render useless the
effectiveness of vaccines against it.

Another issue being that

vaccines themselves can also drive viral mutations depending on
exactly how the shots are deployed and how effective they are.”
Id. at 27.
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The Court does not minimize the continuing threat of COVID19 at Fort Dix and other penal institutions, but the federal
courts are courts of limited jurisdiction.

The cases cited by

Petitioner noting the conditions at Fort Dix were ones deciding
motions for compassionate release, not § 2241 habeas petitions.
As such, they are of limited persuasive value and do not support
jurisdiction under § 2241.
Petitioner admits that the BOP has procedures and protocols
for the pandemic, but he did not file a civil rights action
seeking injunctive relief.2

See, e.g., Brown v. Warren, No. 20-

7907 (D.N.J. filed June 26, 2020) (class action under 42 U.S.C.
§ 1983 regarding county jail COVID-19 protocols).

His

statements that relevant protocols have been “woefully ignored”
or “are not remotely followed by staff or inmate orderlies”
indicates there is an alternative to an order directing
Petitioner’s release.

ECF No. 1 at 4, 35; see also Goodchild v.

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) the Supreme Court
stated that expanding the remedy announced in Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971) “is now a ‘disfavored’ judicial activity.” 137 S. Ct. at
1857. However, the Supreme Court also noted that suits seeking
only injunctive relief are acceptable alternatives to damages
suits and are not subject to the “special factors” analysis set
forth in Abbasi. Id. at 1862-63. Moreover, an action seeking
injunctive relief for deliberate indifference to a serious
medical need is a heartland Bivens claim rather than an
extension of such a claim. The Court declines to convert this
action into a civil rights complaint due to the differences in
procedures and pre-filing requirements under the Prison
Litigation Reform Act.
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Ortiz, No. 21-790, 2021 WL 3914300, at *15 (D.N.J. Sept. 1,
2021) (“It is clear that Petitioners have alternatives to the
extraordinary remedy of releasing convicted prisoners before
expiration of their sentences, based solely on their conditions
of confinement.”).

The Court concludes the petition has not

alleged the extraordinary circumstances necessary to invoke this
Court’s habeas jurisdiction.
The Court will deny the motion to amend as futile.
6.

ECF No.

Petitioner requests to supplement his § 2241 petition with a

claim that Fort Dix has discontinued programs at the facility
including those the BOP has designated as offering good time
credits under the First Step Act.

“This goes beyond ‘sub-

optimal’ conditions and results in undue prejudice to the
Petitioner’s ability to take advantage of legislative incentives
to reduce his term of imprisonment.”

Id. at 3.

It is well

settled that prisoners do “not have a due process right to
rehabilitative programs.”

Zavalunov v. Fed. Bureau of Prisons,

No. 3:19-CV-453, 2020 WL 2036722, at *11 (M.D. Pa. Apr. 28,
2020).

Accordingly, this claim is not enough to give this Court

jurisdiction that is lacking in the original petition.
Even assuming arguendo that the Court could consider this
claim under § 2241, it would be dismissed for Petitioner’s
failure to exhaust his administrative remedies.

“Although there

is no statutory exhaustion requirement attached to § 2241, we
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have consistently applied an exhaustion requirement to claims
brought under § 2241.”
Cir. 2000).

Callwood v. Enos, 230 F.3d 627, 634 (3d

It would be futile to amend the petition because

Petitioner has not presented this argument to the BOP first.
The Court will deny the motion to amend as futile and will
dismiss the petition for lack of jurisdiction.

An appropriate

Order will be entered.

Dated: January 11, 2022
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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