Bobka v. Warden et al

Filing 8

ORDER AND REPORT AND RECOMMENDATION recommending the case be dismissed without prejudice and without requiring the respondent to file a return. (Objections to R&R due by 8/17/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.) Signed by Magistrate Judge Paige J. Gossett on 8/3/2020. (mmcd)

0:20-cv-01722-JFA

Date Filed 08/03/20

Entry Number 8

Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Rich Bobka,
Petitioner,
v.
Warden, Estill Federal Prison Camp, Estill,
South Carolina,
Respondent.

Michael Bobka, as Power of Attorney in Fact
for Richard Bobka,
Petitioner,
v.
Warden, Estill Federal Prison Camp, Estill,
South Carolina; Federal BOP, Washington,
D.C.; Michael Carvajal17-, Director,
Respondent.

Michael Bobka, as Power of Attorney in Fact
for Richard Bobka,
Petitioner,
v.
Warden, Estill Federal Prison Camp, Estill,
South Carolina; Federal Bureau of Prisons
SERO Atlanta, GA, J.A. Keller, Director,
Respondent.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Page 1 of 8

C/A No. 0:20-1495-JFA-PJG

C/A No. 0:20-1722-JFA-PJG

C/A No. 0:20-1798-JFA-PJG

0:20-cv-01722-JFA

Date Filed 08/03/20

Entry Number 8

Michael Bobka, as Power of Attorney in Fact )
for Richard Bobka,
)
)
Petitioner,
)
)
v.
)
)
Warden, Estill Federal Prison Camp, Estill, )
South Carolina; President Trump, Mar-a- )
Lago, Palm Beach County, FL,
)
)
Respondent.
)
)
)
Michael Bobka, as Power of Attorney in Fact )
for Richard Bobka,
)
)
Petitioner,
)
)
v.
)
)
Warden, Estill Federal Prison Camp, Estill, )
South Carolina; Honorable William Barr, US )
)
Attorney General, McLean, Virginia,
)
Respondent.
)
)

Page 2 of 8

C/A No. 0:20-1834-JFA-PJG

C/A No. 0:20-1851-JFA-PJG

ORDER AND
REPORT AND RECOMMENDATION
Petitioner Rich Bobka is a federal prisoner. Rich’s brother, Michael Bobka, originally filed
these actions pursuant to 28 U.S.C. § 2241 on Rich’s behalf, purportedly because of Rich’s
inability to file the actions due to the conditions of his federal prison and the COVID-19 pandemic.
Michael filed Civil Action No. 0:20-1495 in this court. The other nearly identical actions were
filed in other United States District Courts and transferred here. This Report and Recommendation
will address the matters before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(c) (D.S.C.) in Civil Action No. 20-1495, but the disposition of this action is
dispositive as to all of the cases listed in the above caption.
Page 2 of 8

0:20-cv-01722-JFA

Date Filed 08/03/20

Entry Number 8

Page 3 of 8

In Civil Action No. 0:20-1495, the court terminated Michael as the petitioner because he
is not the real party in interest and directed Petitioner Rich Bobka to file his own petition. Now,
having reviewed the Petition and Supplemental Petition (ECF Nos. 23 & 24) in accordance with
applicable law, the court concludes that this matter should be summarily dismissed.
I.

Factual and Procedural Background
Petitioner Rich Bobka is a federal inmate at the Federal Correctional Institution in Estill,

South Carolina. Petitioner indicates he suffers from a heart condition, regular chest pains, high
blood pressure, and high cholesterol. 1 (Bobka Aff., ECF No. 22-2 at 3-4.) Petitioner claims that
these conditions place him at a “significantly higher risk of serious illness or death from COVID19” and the prison medical staff is either deliberately or intentionally indifferent to his health and
well-being. (Id.) Petitioner indicates that the conditions of the prison—including damage from a
recent tornado, a leaking roof, black mold, poor ventilation, lack of food nutrition, lack of
recreation, and a constant state of lockdown—increases his risk of serious illness or death from
COVID-19. (Bobka Aff., ECF No. 22-3 at 1-4.) Petitioner argues that these conditions violate his
civil rights. (Pet., ECF No. 23 at 8; Suppl. Pet., ECF No. 24 at 22-23.) Petitioner asks the court
to order the Bureau of Prisons to move him to home confinement. (Id. at 9; Suppl. Pet., ECF No.
24 at 25-26.)

1

Petitioner has unsuccessfully tried to file medical documents under seal in this court to
support the allegations in his Petition. (ECF Nos. 14 & 22.) However, Petitioner need not submit
medical evidence at this time. For the purposes of reviewing this court’s jurisdiction over this
matter, the court assumes that the allegations in the Petition are true. Consequently, Petitioner’s
motion for an emergency extension of time to file the documents under seal is terminated as moot.
(ECF No. 22.) However, as explained in the court’s June 25 order (ECF No. 17), Petitioner may
attempt to file documents under seal (or redacted documents) pursuant to Federal Rule of Civil
Procedure 5.2. and Local Civil Rule 5.03 (D.S.C.).
Page 3 of 8

0:20-cv-01722-JFA

II.

Date Filed 08/03/20

Entry Number 8

Page 4 of 8

Discussion
A.

Standard of Review

Under established local procedure in this judicial district, a careful review has been made
of the pro se petition filed in this case pursuant to the Rules Governing § 2254 Cases, 2 28 U.S.C.
§ 2254; the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104132, 110 Stat. 1214; and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25
(1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972);
Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); Todd v. Baskerville,
712 F.2d 70 (4th Cir. 1983).
This court is required to liberally construe pro se pleadings, which are held to a less
stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal
construction does not mean that the court can ignore a clear failure in the pleading to allege facts
which set forth a claim cognizable in a federal district court. See Weller v. Dep’t of Soc. Servs.,
901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining
pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
B.

Analysis

The court finds that this matter should be summarily dismissed. Initially, the court
questions whether it has jurisdiction over Petitioner’s § 2241 petition. Habeas corpus proceedings
are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a

2

The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241.
See Rule 1(b).
Page 4 of 8

0:20-cv-01722-JFA

Date Filed 08/03/20

Entry Number 8

Page 5 of 8

federal conviction and sentence is through a motion to vacate, set aside, or correct the sentence
pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under 28 U.S.C. § 2241 is
generally the proper method to challenge the computation or execution of a federal sentence. See
United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004); United States v. Miller, 871 F.2d
488, 489-90 (4th Cir. 1989) (distinguishing between attacks on the “computation and execution of
the sentence rather than the sentence itself”). However, where a prisoner merely challenges the
conditions of his confinement, even where he seeks injunctive relief to remedy those conditions,
those claims are generally more properly brought in a non-habeas civil rights action. See
Rodriguez v. Ratledge, 715 F. App’x 261, 266 (4th Cir. 2017) (finding that the petitioner’s
conditions of confinement claims were not properly raised in a § 2241 petition); but see Levine v.
Apker, 455 F.3d 71, 78 (2d Cir. 2006) (finding § 2241 was the proper vehicle to challenge the
petitioner’s place of imprisonment, including the differences in the manner and conditions of
imprisonment that distinguish between community confinement programs and federal prison
facilities).
Regardless, the court lacks the authority to order Petitioner’s release into home
confinement—the only relief he seeks here. The CARES Act, Pub. L. 116-136, Mar. 27, 2020,
134 Stat 281, empowers the Attorney General and Bureau of Prisons (“BOP”) Director to lengthen
the amount of time an inmate can serve his sentence on home confinement. See 18 U.S.C. § 3624
(authorizing the BOP to place prisoners in home confinement). The BOP’s authority on where to
house inmates is completely discretionary and not subject to judicial review. See McCarson v.
Reherman, C/A No. 2:20-1386-HMH, 2020 WL 2110770 (D.S.C. May 4, 2020) (“[W]hile the
CARES Act affords the BOP broad discretion during the COVID-19 pandemic, the court lacks
jurisdiction to order home confinement for McCarson under this provision.”); United States v.

Page 5 of 8

0:20-cv-01722-JFA

Date Filed 08/03/20

Entry Number 8

Page 6 of 8

Berry, CR No. 1:18-430, 2020 WL 1984117, at *3 (M.D. Pa. Apr. 27, 2020) (finding the CARES
Act did not provide the petitioner with any basis to seek home confinement in a § 2241 petition);
Valenta v. Ortiz, No. 1:20-CV-3688 (NLH), 2020 WL 1814825, at *1 (D.N.J. Apr. 9, 2020)
(dismissing a CARES Act claim in an emergency motion for release because the Act did not
mandate home confinement for any class of inmate and the decision was discretionary for the
Attorney General). Therefore, the court lacks authority to provide the only relief Petitioner seeks
in the Petition.
The court notes Petitioner recently filed a similar action in the court in which he was
sentenced—the United States District Court for the Middle District of Florida. United States v.
Bobka, Cr. No. 8:10-cr-550. Petitioner moved for compassionate release in the sentencing court
pursuant to 18 U.S.C. § 3582, but the sentencing court denied the motion because Petitioner failed
to present any extraordinary or compelling circumstances to warrant compassionate release and he
failed to exhaust his administrative remedies as to some of the circumstances he sought to rely on.
Cr. No. 8:10-cr-550, ECF No. 1487. To the extent Petitioner seeks to raise similar claims in this
court, the court lacks jurisdiction; and Petitioner must file such a motion in his sentencing court.
See Deffenbaugh v. Sullivan, No. 5:19-HC-2049-FL, 2019 WL 1779573, at *2 (E.D.N.C. Apr. 23,
2019) (dismissing a § 2241 petition seeking compassionate release because such a request had to
be filed in the petitioner’s sentencing court). 3

3

The docket of Petitioner’s sentencing court indicates Petitioner continues to litigate the
motion for a compassionate release through an appeal, and he recently retained counsel.
Page 6 of 8

0:20-cv-01722-JFA

III.

Date Filed 08/03/20

Entry Number 8

Page 7 of 8

Conclusion
Accordingly, the court recommends that the above-captioned cases be dismissed without

prejudice and without requiring the respondents to file a return. 4

August 3, 2020
Columbia, South Carolina

__________________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE

The parties’ attention is directed to the important notice on the next page.

4

Petitioner indicates he has not received mailings from the court, and that his brother has
kept him informed about the court’s actions. (ECF No. 22.) Review of the docket shows that no
mailings from the court have been returned to the Clerk of Court as undeliverable, and the last
documents mailed to Petitioner were properly addressed with the mailing address provided by
Petitioner. If Petitioner continues to not receive mail from the court, he should attempt to address
the issue at the institution where he is confined.
Page 7 of 8

0:20-cv-01722-JFA

Date Filed 08/03/20

Entry Number 8

Page 8 of 8

Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and
Recommendation with the District Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made and the basis for such objections. “[I]n
the absence of a timely filed objection, a district court need not conduct a de novo review, but
instead must ‘only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Specific written objections must be filed within fourteen (14) days of the date of service of
this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ.
P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by
mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation
will result in waiver of the right to appeal from a judgment of the District Court based upon
such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

Page 8 of 8