Opinion
CIVIL 20-cv-475-SE
06-08-2022
Lorence Smith v. Warden, FCI Berlin
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
Lorence Smith, who is proceeding pro se, is incarcerated at the Federal Correctional Institution in Berlin, New Hampshire (“FCI Berlin”). He filed a petition for reduction of his sentence in light of the risks of contracting COVID-19 at the prison, citing 28 U.S.C. §§ 2241 and 2252, 18 U.S.C. § 3582, and the CARES Act. The court construed the petition to seek relief under 28 U.S.C. § 2241, on the ground that the conditions of his confinement violate the Due Process Clauses of the Fifth and Fourteenth Amendments and the Eighth Amendment. Mr. Smith also sought release on bail or home confinement during the pendency of this matter.
Smith is serving a forty-year sentence that was imposed by the Superior Court of the District of Columbia in October 2003.
The petition was served on the respondent, the FCI Berlin Warden. The Warden filed a response (Doc. No. 4) to Mr. Smith's request for release on bail, an objection (Doc. No. 9) to the petition. Mr. Smith filed a reply (Doc. No. 10) to the Warden's objection. The Court now construes Mr. Smith's reply to the Warden's objection as an amended § 2241 petition. The Court will consider the original petition (Doc. No. 1) and the amended petition (Doc. No. 10), together, as the amended petition in this matter for all purposes, and subject that amended petition to this Court's preliminary review.
Preliminary Review Standard
Pursuant to § 2254 Rule 4, a judge is required to examine a petition for habeas relief and, if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition.” Id. “Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). The court construes [Petitioner]'s pleadings liberally, considering his pro se status. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008). As the Court has construed Mr. Smith's filings as an amended petition subject to preliminary review, the Court does not, at this stage, consider the assertions in the Warden's response (Doc. No. 4) and objection (Doc. No. 9) in determining whether Mr. Smith has stated a claim upon which relief might be granted.
Background
In his amended petition, Mr. Smith affirms that he is challenging the conditions of his confinement, pursuant to § 2241, based on the risks presented by COVID-19 in prison. He asserts that he was injured during a brutal attack at FCI Berlin on January 30, 2019. He alleges that his injuries included: “subacute cortical fracture at volar base left middle phalanx, multiple closed fractures of facial and nasal bone(s), contusion of both lungs, left clavicle/shoulder bruising, difficulty breathing/shortness of breath/trouble breathing, and multiple broken teeth.” Am. Pet. (Doc. No. 1, at 2-3); see also Id. (Doc. No. 10, at 6). Mr. Smith contends that his injuries put him at a heightened risk of serious illness or death from COVID-19, and seeks release from FCI Berlin on bail or home confinement.
Discussion
The warden contends that § 2241 is not an appropriate basis to challenge the conditions of confinement at FCI Berlin based on the risks of COVID-19. Courts are split on whether a petition under § 2241 can challenge the conditions of confinement in prison. See, e.g., Wilson v. Williams, 961 F.3d 829, 837 (6th Cir. 2020) (§ 2241 can be used to seek release from confinement, based on the conditions caused by COVID-19, because that challenges the fact or extent of confinement); Barnes v. Jamison, 22-cv-049, 2022 U.S. Dist. LEXIS 13577 at *5m 2022 WL 245478, at *2 (M.D. Pa. Jan. 25, 2022) (challenge to conditions of confinement cannot be brought in § 2241 petition); Vendetti v. Ortiz, 21-5193(NLH), 2022 U.S. Dist. LEXIS 5068, at *2, 2022 WL 102250, at *1 (D.N.J. Jan. 11, 2022) (conditions of confinement due to COVID-19 may be challenged in a § 2241 petition only under extraordinary circumstances and subject to exhaustion). To the extent such claims are allowed, courts require the petitioner to show that the conditions imposed because of COVID-19 are so extreme that they require the petitioner's immediate release. See, e.g., Hope v. Warden York Cty. Prison, 972 F.3d 310, 324 (3d Cir. 2020).
Mr. Smith's allegations do not come close to meeting that standard. As the warden pointed out, when Mr. Smith filed his petition, COVID-19 had not yet reached FCI Berlin. Currently, the Bureau of Prisons reports that FCI Berlin has no cases of COVID-19 among the prison population, and only eight cases among the staff. See www.bop.gov/cornoavirus/ (last visited May 25, 2022).
Further, FCI Berlin has made vaccinations available to all prisoners. Id. Except in unusual circumstances not alleged here, “the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an extraordinary and compelling reason for immediate release.” United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021). Similarly, even if the Eighth Amendment standard were applied, the conditions at FCI Berlin do not show that the staff is or has been deliberately indifferent to a substantial risk to Smith's health. See Alcorta v. Warden, FCI Berlin, 21-cv-250-PB, 2021 U.S. Dist. LEXIS 185842, at *6-*7, 2021 WL 4444852, at *1-*2 (D.N.H. Sept. 10, 2021). Therefore, the District Judge should dismiss Mr. Smith's amended § 2241 petition (Doc. Nos. 1, 10) as he has failed to assert a claim upon which the relief he seeks, release from prison on bail or home confinement to protect him from COVID-19, might be granted.
Conclusion
For the foregoing reasons, the District Judge should dismiss this action in its entirety. Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed.R.Civ.P. 72(b)(2). The fourteen-day period may be extended upon motion.
Failure to file any objection within the specified time waives the right to appeal the district court's Order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). Only those issues raised in the objection(s) to this Report and Recommendation “‘are subject to review in the district court.'” Id. Additionally, any issues “‘not preserved by such objection are precluded on appeal.'” Id. (citations omitted).