Gonzalez v. Howard

Filing 11

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 1/7/21. (ma)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EMMANUEL GONZALEZ,
Petitioner,
v.
CATRICIA HOWARD,
Respondent

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No. 1:20-cv-1992
(Judge Rambo)

MEMORANDUM
On October 29, 2020, pro se Petitioner Emmanuel Gonzalez (“Petitioner”),
who is currently incarcerated at the Federal Correctional Institution AllenwoodMedium in White Deer, Pennsylvania (“FCI Allenwood-Medium”), initiated the
above-captioned action by filing a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. (Doc. No. 1.) Petitioner maintains that the Bureau of Prisons
(“BOP”) is violating his Eighth Amendment rights by failing to provide safe living
conditions during the COVID-19 pandemic. (Id.) Petitioner asserts that: (1) his
mental health is “deteriorating” because of the pandemic; (2) FCI AllenwoodMedium is providing inadequate testing; (3) social distancing is impossible
because he has a cellmate; and (4) FCI Allenwood-Medium has an inadequate
HVAC system to eliminate COVID-19. (Id. at 6-7.) As relief, he requests that the
Court order the BOP to “enlarge[] home confinement for ALL nonviolent, elderly
65 and older, and people with underlying health conditions that meet CDC

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guidelines, including people with PTSD, depression, anxiety, bipolar and any
cognitive impairment [that] is not expected to recover.” (Id. at 7.) Following an
Order to show cause (Doc. No. 6), Respondent filed a response on December 15,
2020 (Doc. No. 10). To date, Petitioner has filed neither a traverse nor a motion
seeking an extension of time to do so. Accordingly, because the time period for
filing a traverse has expired, Petitioner’s § 2241 petition is ripe for disposition.
I.

BACKGROUND
A.

The BOP’s Response to COVID-19

To mitigate the spread of COVID-19, the BOP has modified its operations
nationally. See COVID-19 Coronavirus, https://www.bop.gov/coronavirus (select
“BOP COVID-19 Modified Operations Plan” hyperlink) (last accessed December
16, 2020, 12:05 p.m.). These modified operations are to provide for limited inmate
movement in order to “prevent congregate gathering and maximize social
distancing.” Id. The BOP has implemented enhanced health screenings of staff at
all locations. Id. Moreover, all newly admitted inmates are screened for COVID19, including a symptom screen, temperature check, and an approved viral PCR
test. Id. Inmates who are asymptomatic and/or test positive are placed in medical
isolation; inmates who are asymptomatic and test negative are placed in
quarantine. Id. Inmates remain in isolation until they test negative or are cleared
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by medical staff. Id. All inmates are tested again before transfer to a new facility.
Id.
The BOP is also requiring that contractor access be restricted to those
performing essential services, religious worship services, and necessary
maintenance. Id. All contractors “must undergo a COVID-19 screening and
temperature check prior to entry.” Id. All volunteer visits have been suspended
“unless approved by the Deputy Director of the BOP.” Id. Inmate movement “in
small numbers” is authorized for commissary, laundry, showers three (3) times per
week, and telephone and TRULINCS access. Id.
B.

Use of Home Confinement by the BOP

The BOP has exclusive discretion to “designate the place of [a] prisoner’s
imprisonment.” 18 U.S.C. § 3621(a). Pursuant to this authority, the BOP may
“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). The BOP
“shall, to the extent practicable, place prisoners with lower risk levels and lower
needs on home confinement for the maximum amount of time permitted under this
paragraph.” Id.
On March 26, 2020, the Attorney General issued a Memorandum
encouraging the BOP to prioritize home confinement, as appropriate, in response
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to the COVID-19 pandemic. See Prioritization of Home Confinement as
Appropriate in Response to COVID-19 Pandemic,
https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf (last
accessed Dec. 16, 2020 1:11 p.m.). To determine whether home confinement
should be authorized, the Attorney General directed the BOP to consider “the
totality of circumstances for each individual inmate, the statutory requirements for
home confinement,” and the following non-exhaustive discretionary factors: (1)
the age and vulnerability of the inmate to COVID-19, in accordance with Centers
for Disease Control (“CDC”) guidelines: (2) the security level of the facility
currently holding the inmate; (3) the inmate’s conduct in prison; (4) the inmate’s
score under the Prisoner Assessment Tool Targeting Estimated Risk and Need
(“PATTERN”); (5) whether the inmate “has a demonstrated and verifiable re-entry
plan that will prevent recidivism and maximize public safety”); and (6) the
inmate’s crime of conviction and “assessment of the danger posed by the inmate to
the community.” Id.
On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security
Act (“CARES Act”) was implemented, authorizing the Attorney General and the
BOP to “lengthen the maximum amount of time for which the Director is
authorized to place a prisoner in home confinement” due to the COVID-19
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pandemic. CARES Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281 (2020).
On April 3, 2020, the Attorney General issued a memorandum authorizing the
Director of the BOP to maximize the use of home confinement for appropriate
inmates held at facilities where the Director determines COVID-19 has materially
affected operations. Increasing Use of Home Confinement at Institutions Most
Affected by COVID-19, https://www.justice.gov/file/1266661/download (last
accessed Dec. 16, 2020 1:21 p.m.). This memorandum increased the number of
inmates to be assessed for home confinement and directed that the BOP prioritize
the most vulnerable inmates at the most affected facilities. Id. The memorandum
stressed that the BOP should “continue making the careful, individualized
determinations BOP makes in the typical case” to remain faithful to its duty to
protect the public. Id. As of January 4, 2021, the BOP has 8,020 inmates on home
confinement, with a total number of 19,654 inmates being placed in home
confinement from March 26, 2020. COVID-19 Home Confinement Information,
https://www.bop.gov/coronavirus (last accessed Jan. 4, 2021 7:16 a.m.).
C.

Facts Regarding Petitioner

Petitioner is currently serving a 120-month term of imprisonment imposed
by the United States District Court for the District of New Jersey for conspiracy to
distribute a controlled substance. (Doc. No. 10-2 at 4.) He is 36 years old and has
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been assigned a CARE1 medical status, indicating that he is healthy or requires
only simple chronic care. (Id. at 14; Doc. No. 10 at 9.) Petitioner has been
assigned a low security classification and a medium recidivism risk PATTERN.
(Doc. No. 10-2 at 14.)
On November 24, 2020, a PCR nasal swab test collected from Petitioner on
the previous day returned with a positive result for coronavirus. (Id. at 17.) On
November 26, 2020, a Physician’s Assistant conducted an initial evaluation of
Petitioner following his positive result. (Id. at 19-20.) At that time, Petitioner
denied experiencing any symptoms. (Id. at 19.) His vital signs, respiration rate,
and oxygen saturation levels were within normal limits. (Id.) Petitioner was
instructed to seek care immediately if his condition worsened. (Id. at 20.)
Petitioner received additional screenings on November 27, 2020, November 30,
2020, December 1, 2020, December 2, 2020, and December 3, 2020. (Id. at 2125.) On each occasion, Petitioner was asymptomatic, and his vitals were within
normal limits. (Id.) On December 3, 2020, Petitioner completed his ten (10) days
of isolation and was cleared from isolation because he was free of symptoms. (Id.
at 21.) Petitioner is considered to be recovered from COVID-19. (Id. at 14.) As
of January 4, 2021, there were 141 inmate and twenty-two (22) staff COVID-19
cases at FCI Allenwood-Medium. See COVID-19 Coronavirus,
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https://www.bop.gov/coronavirus (select “Full breakdown and additional details”
hyperlink and search for FCI Allenwood-Medium) (last accessed Jan. 4, 2021 7:17
a.m.).
Petitioner also references his mental health in his § 2241 petition. The
record, however, reflects that Petitioner was last seen by psychology services on
June 18, 2020. (Doc. No. 10-2 at 26.) During that visit, Petitioner “noted that his
anxiety continues to be a problem.” (Id.) Staff reminded Petitioner “of those
strategies discussed in earlier sessions of both cognitive and behavioral nature and
was encouraged to utilize these consistently to manage feelings of anxiety.” (Id.)
Petitioner “noted greater interest in following up with his PA to discuss further
medication options as he expressed belief the prescribed Buspar is not effective.”
(Id.) At that time, “[n]o further intervention appear[ed] warranted.” (Id.) During
a clinical encounter on October 26, 2020, medical staff noted that Petitioner’s
depression and anxiety were “well controlled” with medication and his prescription
for fluoxetine was renewed. (Id. at 27-30.)
Under the standards set forth in the Attorney General’s memoranda,
Petitioner is not a priority candidate for home confinement because he is housed at
a medium security institution and has a medium risk of recidivism according to his
PATTERN score. (Id. at 14.) On September 3, 2020, Respondent responded to an
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email from Petitioner requesting approval or denial for home confinement. (Id. at
16.) Respondent told Petitioner that there was no record of him requesting home
confinement. (Id.) Petitioner never responded.
The BOP’s computerized record of Petitioner’s administrative remedy
submissions indicates that he has filed no administrative remedies relating to home
confinement. (Id. at 6-13.) On September 17, 2020, Petitioner filed administrative
remedy 1047498-F1, requesting compassionate release. (Id. at 8.) The submission
was rejected because Petitioner did not sign the request. (Id.) He was instructed to
resubmit it in proper form. (Id.) On October 2, 2020, Petitioner submitted
administrative remedy 1050464-F1, again requesting compassionate release. (Id.
at 9.) In this remedy, Petitioner specifically requested a reduction in sentence or
compassionate release, not home confinement. (Id. at 10-13.) Respondent denied
his request on October 16, 2020. (Id. at 13.) 1
II.

DISCUSSION
Respondent asserts that Petitioner’s § 2241 petition should be denied

because: (1) Petitioner failed to exhaust his administrative remedies; (2) BOP
decisions concerning home confinement are not subject to judicial review; and (3)

1

Petitioner has a motion for a reduction of sentence pending before the sentencing court. See
United States v. Gonzalez, No. 3:16-cr-398 (D.N.J.) (Doc. No. 56).
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Petitioner cannot establish an Eighth Amendment violation.2 (Doc. No. 10 at 12.)
The Court considers each argument in turn.
A.

Exhaustion of Administrative Remedies

While § 2241 does not contain an explicit statutory exhaustion requirement,
the United States Court of Appeals for the Third Circuit has consistently required a
petitioner to exhaust his administrative remedies before filing a § 2241 petition.
Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Exhaustion is
required “for three reasons: (1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates judicial review; (2) permitting
agencies to grant the relief requested conserves judicial resources; and (3)
providing agencies the opportunity to correct their own errors fosters
administrative autonomy.” Id. at 761-62 (citing Bradshaw v. Carlson, 682 F.2d
1050, 1052 (3d Cir. 1981)). Thus, “a federal prisoner who . . . fails to exhaust his
administrative remedies because of a procedural default, and subsequently finds
closed all additional avenues of administrative remedy, cannot secure judicial

2

The United States Court of Appeals for the Third Circuit recently concluded that immigration
detainees could proceed under § 2241 to challenge allegedly unconstitutional conditions of
confinement due to the COVID-19 pandemic. Hope v. Warden York Cty. Prison, 972 F.3d 310,
324-25 (3d Cir. 2020). The Third Circuit cautioned that it was “not creating a garden variety cause
of action.” Id. at 324. In light of Hope, the Court “will assume, without deciding, that it has
jurisdiction under § 2241 to consider a federal prisoner’s COVID-19 related conditions of
confinement claim.” Byrne v. Ortiz, No. 20-12268 (RBK), 2020 WL 7022670, at *3 (D.N.J. Nov.
30, 2020).
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review of his habeas claim absent a showing of cause and prejudice.” Id. at 762.
Exhaustion, however, is not required when it would not promote these goals, such
as when exhaustion would be futile. See, e.g., Gambino v. Morris, 134 F.3d 156,
171 (3d Cir. 1998).
This Court has recognized that a § 2241 petitioner seeking release to home
confinement due to the COVID-19 pandemic must first exhaust his administrative
remedies. See Gottstein v. Finley, No. 3:20-cv-935, 2020 WL 3078028, at *3-4
(M.D. Pa. June 10, 2020). To do so, an inmate must file a request with the Warden
and then file an appeal to the BOP’s Regional Director within twenty (20) days of
the date of the Warden’s response. 28 C.F.R. §§ 542.14 & 542.15(a). If his appeal
to the Regional Director is denied, the inmate must appeal that decision to the
BOP’s General Counsel within thirty (30) days. Id. The appeal to the General
Counsel is the final level of administrative review. Id.
In his § 2241 petition, Petitioner suggests that he is awaiting a response to
his request for home confinement. (Doc. No. 1 at 3.) The record, however,
reflects that while Petitioner has submitted requests for compassionate release, he
has not submitted an administrative remedy request regarding home confinement.
The Third Circuit recently reiterated that “strict compliance with . . . exhaustion
requirement[s] takes on added—and critical—importance” during the COVID-19
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pandemic “[g]iven the BOP’s shared desire for a safe and healthy prison
environment.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). Based on
this principle, courts within the Third Circuit have routinely dismissed unexhausted
requests for home confinement due to the pandemic. See, e.g., Adams v. Trate, No.
1:20-cv-237, 2020 WL 7337806, at *2 (W.D. Pa. Dec. 14, 2020); Gottstein, 2020
WL 3078028, at *3; Jackson v. White, No. 3:20-cv-919, 2020 WL 3036075, at *57 (M.D. Pa. June 5, 2020); Cordaro v. Finley, 3:10-cr-75, 2020 WL 2084960, at *4
(M.D. Pa. Apr. 30, 2020). The Court agrees with such reasoning and, therefore,
concludes that Petitioner’s § 2241 petition must be denied for failure to exhaust his
administrative remedies. Nevertheless, the Court will address the merits of his
petition below.
B.

Merits of Petitioner’s § 2241 Petition
1.

Home Confinement Request

Even if Petitioner had exhausted his request for home confinement, the
Court could not grant his request because “the CARES Act provides the discretion
for determining early home confinement release solely to the BOP.” United States
v. Mathews, No. 2:86-cr-197, 2020 WL 6781946, at *2 (E.D. Pa. Nov. 18, 2020);
see also Adams, 2020 WL 7337806, at *2 (collecting cases); United States v.
Robinson, No. 4:07-cr-389-10, 2020 WL 5793002, at *5 n.2 (M.D. Pa. Sept. 28,
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2020) (noting that “the Court does not have the authority to grant [a request for
home confinement] in that the determination of an inmate’s place of incarceration
is committed to the discretion of the BOP director”). Attorney General Barr “used
this authority and set out the factors to guide the BOP’s determination in his March
26 and April 3 memoranda.” Aigebkaen v. Warden, No. 20-5732 (NLH), 2020 WL
6883438, at *4 (D.N.J. Nov. 24, 2020).
The plain text of the CARES Act grants additional discretion to the Attorney
General and the BOP; it does not require the BOP to release all at-risk, non-violent
inmates on home confinement. Because “Congress has not identified any further
circumstance in which the Bureau either must grant” home confinement “or is
forbidden to do so . . . all [the Court] must decide is whether the Bureau, the
agency empowered to administer” the home confinement program, “has filled the
statutory gap ‘in a way that is reasonable.’” Lopez v. Davis, 531 U.S. 230, 242
(2001) (quoting NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513
U.S. 251, 257 (1995)). Under the standards set forth in the Attorney General’s
memoranda, Petitioner is not a priority candidate for home confinement because he
is housed at a medium security institution and has a medium risk of recidivism
according to his PATTERN score. (Doc. No. 10-2 at 14.) Thus, Petitioner cannot
demonstrate that the BOP’s interpretation of the CARES Act is unreasonable as
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applied to him. The Court, therefore, cannot grant Petitioner’s request to be
released on home confinement.
2.

Eighth Amendment Claim

In his § 2241 petition, Petitioner asserts, in a conclusory fashion, that the
conditions of his confinement at FCI Allenwood-Medium violate the Eighth
Amendment. (Doc. No. 1 at 2.) Petitioner maintains that: (1) his mental health is
“deteriorating” because of the pandemic; (2) FCI Allenwood-Medium is providing
inadequate testing; (3) social distancing is impossible because he has a cellmate;
and (4) FCI Allenwood-Medium has an inadequate HVAC system to eliminate
COVID-19. (Id. at 6-7.)
The Eighth Amendment guarantees a prisoner’s right to be free from “cruel
and unusual punishments” while in custody. Ricks v. Shover, 891 F.3d 468, 473
(3d Cir. 2018) (quoting Whitley v. Albers, 475 U.S. 312, 318 (1986) (quoting U.S.
Const. amend. VIII)). An Eighth Amendment claim challenging conditions of
confinement has two elements: (1) the deprivation asserted must be “sufficiently
serious” to violate the Constitution, and (2) the prison official or officials
responsible for the deprivation “must have a sufficiently culpable state of mind.”
Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). The second element can be proven by establishing that
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prison officials “acted with deliberate indifference to the inmate’s health or safety
or [to] conditions of confinement that violated the inmate’s constitutional rights.”
Id. (citation omitted). Stated differently, prison officials must “both know of and
disregard an excessive risk to inmate health or safety” or a violation of the
inmate’s constitutional rights. Mammana v. Fed. Bureau of Prisons, 934 F.3d 368,
373 (3d Cir. 2019) (citations omitted).
The Court “recognize[s] that the prison setting raises unique concerns
regarding the spread of the COVID-19 virus since, by their very nature, prisons are
confined spaces unsuited for social distancing.” Rodriguez-Francisco v. White,
No. 1:20-cv-1076, 2020 WL 4260766, at *3 (M.D. Pa. July 24, 2020). However,
nothing in the record suggests that FCI Allenwood-Medium is not complying with
the modified parameters of operation set forth supra. While it is unfortunate that
Petitioner recently contracted COVID-19, the record reflects that he remained
asymptomatic and was able to be released from isolation after the ten (10)-day
isolation period. Moreover, Plaintiff’s claims of deteriorating mental health are
contradicted by his psychology records.
Furthermore, contrary to Petitioner’s assertion, FCI Allenwood-Medium has
been testing for the COVID-19 virus. As of January 4, 2021, 929 inmates have
been tested, 459 with positive results. See COVID-19 Coronavirus,
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https://www.bop.gov/coronavirus (select “Learn more about the data and view
individual facility stats” hyperlink) (last accessed Jan. 4, 2021 7:19 a.m.). Staff
members have also been tested, with twenty-two (22) testing positive and fourteen
(14) fully recovered. See COVID-19 Coronavirus,
https://www.bop.gov/coronavirus (select “Full breakdown and additional details”
hyperlink and search for FCI Allenwood-Medium) (last accessed Jan. 4, 2021 7:18
a.m.). Thus, even when considering Petitioner’s mental health, he has neither
identified a sufficiently serious deprivation that rises to the level of an Eighth
Amendment violation nor has he established that officials at FCI AllenwoodMedium have acted with deliberate indifference to his health or safety.
“[Petitioner] has not identified, let alone proven, any official conduct that exhibits
deliberate indifference to the health or safety or prisoners during this
unprecedented worldwide pandemic.” Rodriguez-Francisco, 2020 WL 4260766,
at *5. Thus, Petitioner is not entitled to the habeas relief he seeks.
III.

CONCLUSION
For the foregoing reasons, the Court will deny Petitioner’s petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) An appropriate
Order follows.
s/ Sylvia H. Rambo
United States District Judge
15