Opinion
CIVIL 1:22-CV-00662
04-27-2023
TIMMY WALLACE, Petitioner v. UNITED STATES OF AMERICA, et al., Respondent
REPORT AND RECOMMENDATION
SUSAN E. SCHWAB UNITED STATES MAGISTRATE JUDGE
I. Introduction.
In this 28 U.S.C. § 2241 habeas corpus petition, the petitioner, Timmy Wallace, is challenging his conviction and sentence. This court, however, does not have jurisdiction over such claim. Thus, we recommend that the court dismiss that claim. And we recommend that the court deny Wallace's motion to supplement his habeas petition to add additional claims challenging his conviction and sentence. Wallace also presents and Eighth Amendment claim based on his continuing incarceration in light of the risks of COVID-19 in the prison setting. Wallace has failed, however, to exhaust his administrative remedies as to that claim, and, in any event, that claim fails on the merits. Thus, we recommend that the court dismiss that claim or, in the alternative, deny that claim. We also recommend that the court dismiss the United States as a respondent given that the warden of the prison where Wallace is incarcerated is the only proper respondent.
II. Background and Procedural History.
In 2016, a jury in the United States District Court for the Southern District of New York found Wallace guilty of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Wallace v. United States, No. 15-CR-794 (PKC), 2021 WL 51414, at *1 (S.D.N.Y. Jan. 5, 2021). “The conviction stemmed from a May 25, 2015 traffic stop where Wallace was arrested and a subsequent search of his vehicle that revealed a loaded firearm stashed under the hood.” Id.
The Armed Career Criminal Act (“ACCA”) provides, in pertinent part, that a person who violates 18 U.S.C. § 922(g) and has three prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another, . . . shall be fined under this title and imprisoned not less than fifteen years . . . .” 18 U.S.C.A. § 924(e)(1). After a sentencing hearing, the sentencing court “determined that Wallace had been convicted of at least three prior offenses which constituted ‘serious drug offenses' within the meaning of the ACCA.” United States v. Wallace, 937 F.3d 130, 136 (2d Cir. 2019). In February 2017, Wallace was sentenced “to a mandatory minimum term of imprisonment of 15 years under the [ACCA].” Wallace, 2021 WL 51414, at *1.
Wallace appealed his judgment of conviction arguing “that the District Court erred in denying his motion to suppress the firearm and improperly sentenced him under the ACCA.” Wallace, 937 F.3d at 134 (2d Cir. 2019). Rejecting both arguments, the United States Court of Appeals for the Second Circuit affirmed Wallace's judgment of conviction. Id. at 144. As relevant here, as to Wallace's argument regarding sentencing under the ACCA, the Second Circuit addressed and rejected Wallace's argument that his 1999 New York conviction for attempted criminal sale of a controlled substance under NYPL § 220.39 did not qualify as a predicate offense under the ACCA because it “does not qualify as a ‘serious drug offense.'” Id. at 142-43.
On April 22, 2020, Wallace also filed a motion for compassionate release due to COVID-19. See doc. 15-1 (docket sheet for United States v. Wallace, 1:15-cr-794) at docket number 179. “Based upon [Wallace's] age (39 years), physical and mental conditions, the conditions at USP Big Sandy where [Wallace] [was] incarcerated, the history and characteristics of [Wallace], the danger that he presents to the community if released, and the circumstances that he has served 36% of his sentence,” the sentencing court denied that motion. See id. at minute entry of May 13, 2020.
On August 31, 2020, Wallace filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See id. at docket number 195. In that motion, he asserted that his trial and appellate counsel were ineffective and that “the Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019) voids his conviction because the indictment failed to allege his knowledge of the fact that he was a previously convicted felon, and the government failed to prove this element at trial.” Wallace v. United States, No. 15-CR-794 (PKC), 2021 WL 51414, at *1 (S.D.N.Y. Jan. 5, 2021). On January 5, 2021, the sentencing court denied that motion. Id. at 4-5. And it later denied Wallace's motion for reconsideration. Wallace v. United States, No. 15-CR-794 (PKC), 2021 WL 3215063, at *3 (S.D.N.Y. July 29, 2021). In March 2022, the Second Circuit denied Wallace's motion for a certificate of appealability and dismissed his appeal. Wallace v. United States, No. 21-458, 2022 WL 2662053, at *1 (2d Cir. Mar. 28, 2022).
In the meantime, Wallace moved “pursuant to 18 U.S.C. § 3582(c) and Section 401 of the First Step Act of 2018 . . . for a reduction of his sentence.” United States v. Wallace, No. 15-CR-794 (PKC), 2021 WL 5113409, at *1 (S.D.N.Y. Nov. 2, 2021). The sentencing court denied that motion. Id. at *2. And the Second Circuit denied Wallace's motion for permission to appeal and dismissed his appeal. United States v. Wallace, No. 22-60, 2022 WL 2619809, at *1 (2d Cir. June 17, 2022)
On May 5, 2022, Wallace began this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He contends that he is entitled to a writ of habeas corpus because evidence that was obtained as a result of the search of his vehicle and that was used against him at trial was obtained in violation of the Fourth Amendment. He also contends that his continued confinement in the midst of the COVID-19 pandemic violates the Eighth Amendment. Wallace later moved to supplement his habeas petition to include another Fourth Amendment claim based on the collection of his DNA and to include a claim that he was improperly sentenced under the ACCA.
For the reasons discussed below, we recommend that the court (1) dismiss the United States as a respondent; (2) dismiss in part and deny in part Wallace's habeas petition; and (3) deny Wallace's motion to supplement.
By a separate order, we addressed several other motions filed by Wallace.
III. Discussion.
A. The Proper Respondent.
Wallace names two respondents in his petition: (1) the United States; and (2) E. Bradley, the Warden of the United States Penitentiary Canaan, where Wallace is incarcerated. Pursuant to 28 U.S.C. § 2243, the writ of habeas corpus, or order to show cause, shall be directed to the petitioner's custodian. The warden or superintendent of the prison where the petitioner is held is considered the custodian for purposes of a habeas action. Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004). Because Wallace is incarcerated at USP Canaan, Warden Bradley is the proper respondent. But the United States is not. Thus, we will recommend that the United States be dismissed as a respondent.
B. This court does not have jurisdiction as to Wallace's claims challenging his conviction and sentence.
Wallace challenges his conviction contending that the evidence that was obtained as a result of the search of his vehicle and that was used against him at trial was obtained in violation of the Fourth Amendment. He also contends (in his motion to supplement) that his DNA was taken in violation of the Fourth Amendment. Further, Wallace contends (also in his motion to supplement) that he should not have been sentenced under the ACCA because his 1999 conviction for attempted criminal sale of a controlled substance under New York law, which was one of the three offenses that the sentencing court used to find that he was an armed career criminal, does not qualify as a predicate offense under the ACCA. This court does not, however, have jurisdiction over such claims.
“Usually, federal prisoners must challenge their convictions under § 2255, not § 2241.” Holland v. Warden Canaan USP, 998 F.3d 70, 73 (3d Cir. 2021). “But § 2241 remains open as a backstop.” Id. The saving clause (also sometimes referred to as the safety valve) of 28 U.S.C. § 2255 provides that a court shall not entertain a habeas petition brought by an applicant authorized to apply for relief under § 2255 “if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Thus, “[u]nder § 2255's saving clause, a federal prisoner can file a § 2241 petition when a § 2255 motion would be ‘inadequate or ineffective to test the legality of his detention.'” Holland, 998 F.3d at 73 (quoting § 2255(e)). Although § 2241 remains available to federal prisoners challenging their convictions and sentences in limited circumstances under the savings clause, the circumstances in which the savings clause applies are rare. Gardner v. Warden Lewisburg USP, 845 F.3d 99, 103 (3d Cir. 2017) (“There are situations where the remedy under § 2255 is actually “inadequate or ineffective,” but they are rare.”).
28 U.S.C. § 2255 establishes a one-year statute of limitations applicable to § 2255 motions. 28 U.S.C. § 2255(f). Also, “a federal prisoner may only file a second or successive motion under § 2255 on the basis of ‘newly discovered evidence' or ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.'” Bruce v. Warden Lewisburg USP, 868 F.3d 170, 179 (3d Cir. 2017) (quoting 28 U.S.C. § 2255(h)). A motion under § 2255 is inadequate or ineffective only if “‘some limitation of scope or procedure would prevent a Section 2255 proceeding from affording the prisoner a full hearing and adjudication of his claim of wrongful detention.'” Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971) (quoting United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954)). “Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255.” Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002). “It is the inefficacy of the remedy, not the personal inability to utilize it, that is determinative.” Id. at 538.
The petitioner has the burden of proving that the remedy afforded by § 2255 is inadequate or ineffective. Brown v. Mendez, 167 F.Supp.2d 723, 726 (M.D. Pa. 2001) (Vanaskie, C.J.). And when a petitioner improperly challenges a conviction or sentence under § 2241, the petition must be dismissed for lack of jurisdiction. Gardner, 845 F.3d at 99 (affirming the District Court's order denying Gardner's § 2241 habeas petition for lack of jurisdiction).
As mentioned above, 28 U.S.C. § 2255(h) provides an exception to the bar on second or successive § 2255 motions for cases involving “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. 2255(h). But “[n]o exception exists for new non-constitutional rules, even if that rule was previously unavailable and applies retroactively in cases on collateral review.” Bruce, 868 F.3d at 179. Thus, a federal prisoner may not file a second or successive motion § 2255 motion based on an intervening change in substantive law. See In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997).
In In re Dorsainvil, the Third Circuit addressed the question of when a prisoner may bring a § 2241 habeas petition after being denied leave to file a second or successive § 2255 motion. The Third Circuit held that a federal prisoner barred from filing a second or successive § 2255 motion can resort to a § 2241 habeas petition if the prisoner “had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law” negated. Id. at 251. “[T]he “safety valve” provided under § 2255” and as outlined in Dorsainvil “is extremely narrow and has been held to apply only in unusual situations, such as those in which a prisoner has had no prior opportunity to challenge his conviction for a crime later deemed to be non-criminal by an intervening change in law.” Brown v. United States, 413 Fed.Appx. 514, 516 (3d Cir. 2011); Bruce, 868 F.3d at 180 (stating that it permits access to § 2241 “when there is a change in statutory caselaw that applies retroactively in cases on collateral review” and the prisoner is ‘otherwise barred from challenging the legality of the conviction under § 2255'” (quoting United States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013)). In other words, the situations where the remedy under § 2255 is “inadequate or ineffective” are rare, and “Dorsainvil' s interpretation of § 2255 provides only a ‘narrow exception' to [2255's] ‘presumptive' exclusivity.'” Gardner, 845 F.3d at 103 (quoting Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002)).
The Third “Circuit permits access to § 2241 when two conditions are satisfied: First, a prisoner must assert a ‘claim of “actual innocence” on the theory that “he is being detained for conduct that has subsequently been rendered noncriminal by an intervening Supreme Court decision” and our own precedent construing an intervening Supreme Court decision'-in other words, when there is a change in statutory caselaw that applies retroactively in cases on collateral review.” Bruce, 868 F.3d at 180 (quoting Tyler, 732 F.3d at 246 (quoting Dorsainvil, 119 F.3d at 252)). “And second, the prisoner must be ‘otherwise barred from challenging the legality of the conviction under § 2255.'” Id. (quoting Tyler, 732 F.3d at 246). “Stated differently, the prisoner has ‘had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate. '” Id. (quoting Dorsainvil, 119 F.3d at 251).
Wallace has not demonstrated that § 2255 is an “inadequate or ineffective” remedy under the circumstances presented here. As to his Fourth Amendment claims, pointing to Thompson v. Clark, 142 S.Ct. 1332 (2022), Wallace contends that there has been a change in the law since his § 2255 motion was decided and as such, he should be allowed to proceed under § 2241. “To maintain [a] Fourth Amendment claim under § 1983, a plaintiff . . . must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution.” Id. at 1335 (italics in original). “[F]leshing out what a favorable termination entails,” the Supreme Court in Thompson held that “[t]o demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction.” Id. Thompson dealt with what a civil litigant must show to maintain a claim for damages for malicious prosecution. It did not effect a change to the substantive law under which Wallace was convicted. Thus, Thompson does not assist Wallace.
As to his contention that his 1999 conviction for attempted criminal sale of a controlled substance under New York law does not qualify as a predicate offense under the ACCA, Wallace points to the Third Circuit's decision in United States v. Nasir, 17 F.4th 459, 462 (3d Cir. 2021), as a basis for allowing him to proceed under § 2241. In Nasir, the Third Circuit “conclude[d] that inchoate crimes are not included in the definition of ‘controlled substance offenses' given in section 4B1.2(b) of the sentencing guidelines.” Id. at 472. Relying on Nasir, Wallace suggests that his conviction for attempted criminal sale of controlled substance under New York law is an inchoate crime that does not qualify as a “serious drug offense” under the ACCA.
Nasir does not, however, assist Wallace. Nasir is not a Supreme Court decision-or based on a Supreme Court decision-that rendered the conduct of which Wallace was convicted noncriminal. See Bruce 868 F.3d at 180 (holding that to proceed under § 2241, “a prisoner must assert a claim of actual innocence on the theory that he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision and our own precedent construing an intervening Supreme Court decision-in other words, when there is a change in statutory caselaw that applies retroactively in cases on collateral review” (internal citations and quotation marks omitted)). Further, Nasir dealt with the interpretation of the term “controlled substance offenses” in section 4B1.2(b) of the sentencing guidelines, whereas Wallace contends that his New York offense does not qualify as a “serious drug offense” under the ACCA. Moreover, a sentencing claim under Nasir does not fall within the narrow saving clause of § 2255(e). See Ali v. Sage, No. 1:22-CV-00903, 2022 WL 2751541, at *1-2 (M.D. Pa. June 27, 2022) (Kane, J.) (finding that the petitioner had not shown that § 2255 was inadequate or ineffective and dismissing § 2241 habeas petition based on Nasir for lack of jurisdiction); Trageser v. United States, No. 4:21-CV-01978, 2022 WL 1144842, at *2 (M.D. Pa. Mar. 9, 2022) (Brann, C.J.) (concluding that the petitioner did not meet “the stringent requirements” of the savings clause because “[h]e does not assert that an intervening change in substantive law has made his crime of conviction noncriminal” and dismissing § 2241 habeas petition based on Nasir for lack of jurisdiction).
In sum, because Wallace's Fourth Amendment claims and his claim based on Nasir do not fall within the narrow parameters of the savings clause, this court does not have jurisdiction over such claims. Thus, we recommend that the court dismiss for lack of jurisdiction the Fourth Amendment claim in Wallace's habeas petition. We also recommend that the court deny as futile Wallace's motion to supplement to add another Fourth Amendment claim and a claim based on Nasir.
C. Wallace's Eighth Amendment claim should be dismissed or, in the alternative, denied.
Wallace also raises in his habeas petition a claim that continuing to confine him given the threat of COVID-19 violates the Eighth Amendment. We recommend that the court dismiss this claim because Wallace has not shown that he exhausted his administrative remedies as to this claim. In the alternative, we recommend that the court deny the claim because Wallace has not shown an Eighth Amendment violation.
Before we address this claim, we address the respondents' argument that the Eighth Amendment claim is not a cognizable § 2241 habeas claim. The Third Circuit concluded that “[g]iven the extraordinary circumstances that existed in March 2020 because of the COVID-19 pandemic,” a group of immigration detainees could seek release through a § 2241 habeas petition on the basis that their conditions of confinement were unconstitutional. Hope v. Warden York County Prison, 972 F.3d 310, 324-25 (3d Cir. 2020). But the court noted that it had previously observed that an attack on conditions of confinement is “cognizable in a federal habeas action only in extreme cases.” Id. at 324 (italics in original) (quoting Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978)). And it noted that although it found the claims in that case cognizable in habeas, it was not addressing “whether a § 2241 claim may be asserted in less serious circumstances.” Id. at 325 n. 5. Thus, “[c]onditions of confinement claims are cognizable in federal habeas corpus proceedings ‘only in extreme cases.'” Mell v. Thompson, No. 1:23-CV-98, 2023 WL 1971322, at *2 (M.D. Pa. Feb. 13, 2023) (Conner, J.) (quoting Hope, 972 F.3d at 324).
In Olson v. Warden Schuylkill FCI, No. 21-2436, 2022 WL 260060, at *2 (3d Cir. Jan. 27, 2022), the Third Circuit concluded that the district court possessed habeas jurisdiction under 28 U.S.C. § 2241 to address a claim “seeking release as redress for allegedly Eighth Amendment-violative conditions of confinement” and observing that the court “had the authority to order a change in [the petitioner's] custody if there was a valid basis to do so.” But Olson is an unpublished decision, and, as such, it is not precedential. And courts have differed as to whether Eighth Amendment claims of convicted federal inmates based on the risk of exposure to COVID-19 are cognizable in a § 2241 habeas petition. Compare Davey v. N'Diaye, No. CV 22-2254 (RMB), 2023 WL 2570221, at *8 (D.N.J. Mar. 20, 2023) (Bumb, C.J.) (concluding that the petitioner had “not sufficiently set forth extraordinary circumstances that would justify exercising habeas jurisdiction over Petitioner's claims under§ 2241”), and Barnes v. Jamison, No. 1:22-CV-00049, 2022 WL 245478, at *2 (M.D. Pa. Jan. 25, 2022) (Wilson, J.) (concluding that Eighth Amendment claim based on risk of exposure to COVID-19 is not “a cognizable habeas claim”), with Counterman v. Finley, No. 1:21-CV-00384, 2021 WL 3771884, at *3 (M.D. Pa. Aug. 25, 2021) (Rambo, J.) (addressing Eighth Amendment claim raised in a § 2441 habeas petition and observing that “the United States Court of Appeals for the Third Circuit has held that a habeas petitioner's ‘claim that unconstitutional conditions of confinement . . . require . . . release is cognizable in habeas'” but that “[s]uch a challenge in a federal habeas action, however, is viable ‘only in extreme cases'” (citing Hope, 972 F.3d at 324-25), and Fudge v. Finley, No. 1:21-CV-386, 2021 WL 1992162, at *9 (M.D. Pa. Apr. 28, 2021) (Carlson, M.J.) (report and recommendation recommending denial of an Eighth Amendment claim raised in § 2241 habeas petition on the merits), report and recommendation adopted, 2021 WL 1978426, at *1 (M.D. Pa. May 18, 2021) (Kane, J.).
When there are other reasons to deny such claims, often courts assume without deciding that such claims are cognizable under § 2241 and move directly to the other reasons to deny the claim. See e.g. Washington v. Warden Canaan USP, 858 Fed.Appx. 35, 37 (3d Cir. 2021) (agreeing “with the District Court that, assuming the cognizability of Washington's Eighth Amendment claim, . . . the claim lacks merit because Washington's allegations fail to demonstrate deliberate indifference by USP Canaan (or the BOP more generally)” (citations omitted)); McLain v. Howard, No. 1:20-CV-01535, 2021 WL 2376634, at *4 n.1 (M.D. Pa. June 10, 2021) (Rambo, J.) (noting that “[i]n light of Hope, the Court will assume without deciding that it has jurisdiction under § 2241 to consider a petitioner's Covid-19 conditions of confinement claim”); Robertson v. Warden, No. 1:20-CV-2117, 2021 WL 916253, at *7 n. 8 (M.D. Pa. Mar. 10, 2021) (Wilson, J.) (same). Here, we will do the same. And assuming that Wallace's Eighth Amendment claim is a cognizable habeas claim, the court should nevertheless dismiss the claim because Wallace has not exhausted administrative remedies.
Although there is no statutory exhaustion requirement applicable to habeas petitions brought pursuant to 28 U.S.C. § 2241, the courts have created a rule that prisoners are ordinarily required to exhaust their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241. Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). The basic rationale for the exhaustion requirement is that judicial review may be facilitated by the agency's development of a factual record, that judicial time may be conserved if the agency grants the relief sought, and that administrative autonomy requires that an agency be given an opportunity to correct its own errors. Arias v. United States Parole Comm n, 648 F.2d 196, 199 (3d Cir. 1981). Exhaustion of administrative remedies is not required, however, where administrative procedures are unavailable or incompetent to provide adequate redress or where exhaustion would be futile. Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) (Roth, J., concurring) (exhaustion is not required when petitioner demonstrates that exhaustion is futile). A prisoner also “need not exhaust administrative remedies where the issue presented involves only statutory construction.” Vasquez v. Strada, 684 F.3d 431, 433-34 (3d Cir. 2012).
A multi-tier administrative-remedy process is available to federal prisoners. For a federal prisoner to exhaust administrative remedies, he must comply with the prison administrative-remedy process set forth in the Code of Federal Regulations.
Except for claims for which other administrative procedures have been established, federal inmates may seek “formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a).
Generally, an inmate must first present an issue of concern informally to staff before submitting an Administrative Remedy Request. 28 C.F.R. § 542.13(a). If the attempt at informal resolution is not successful, an inmate must submit a written Administrative Remedy Request, on a form known as a BP-9, to the institution staff member designated to receive such requests within 20 days of the date on which the basis for the request occurred. 28 C.F.R. § 542.14(a), § 542.14(c)(4). The Warden has 20 days to respond to the Administrative Remedy Request, and an inmate who is not satisfied with the Warden's response may appeal to the Regional Director, on a form known as a BP-10, within 20 days of the Warden's response. 28 C.F.R. § 542.15(a), § 542.18. The Regional Director has 30 days to respond, and an inmate who is not satisfied with the Regional Director's response may appeal to the General Counsel, on a form known as a BP-11, within 30 days of the Regional Director's response. 28 C.F.R. § 542.15(a), § 542.18. The General Counsel has 40 days to respond. 28 C.F.R. § 542.18. “Appeal to the General Counsel is the final administrative appeal.” 28 C.F.R. § 542.15(a).
The respondents presented evidence that Wallace filed an administrative remedy in April 2020, seeking home confinement due to the COVID-19 pandemic. Doc. 15-2 (Declaration of Drew O. Inman) at 3, ¶ 10. After that request was denied, Wallace appealed to the regional director, who denied the appeal. Id. Wallace did not, however, appeal the regional director's denial to the general counsel. Id.
Although the respondent's brief, see doc. 15 at 10, and the declaration submitted by Drew O. Inman, see doc. 15-2 at 3, ¶ 10, suggest that Wallace filed this administrative-remedy request while at USP Canaan, the documents submitted by the respondents suggest that Wallace filed this administrative remedy while he was at another facility-“BSY.” see doc. 15-2 at 24. As Wallace asserts that he filed this administrative remedy request while at USP Big Sandy, see doc. 17 at 12, we assume that “BSY” refers to USP Big Sandy.
Wallace does not dispute that he did not file an appeal to the general counsel under 28 C.F.R. § 542.15(a). See doc. 17 (passim). Rather, he asserts that he exhausted administrative remedies because his counsel filed a motion for compassionate release under 18 U.S.C. § 3582. See id. at 12. But Wallace's claim here is an Eighth Amendment claim, not a motion for compassionate releaseunder § 3582. And because Wallace has not shown that he presented his Eighth Amendment claim to the Bureau of Prison through all levels of the administrative- remedy process, he has failed to exhaust administrative remedies. Thus, we will recommend that his Eighth Amendment claim be dismissed.
To the extent that Wallace is seeking compassionate release under 18 U.S.C. § 3582 in this action, such a request is not proper. A motion for compassionate release must “be addressed to the sentencing court.” United States v. Raia, 954 F.3d 594, 596 (3d Cir. 2020).
In the alternative, we recommend that Wallace's Eighth Amendment claim be denied on the merits. “The Eighth Amendment . . . prohibits the infliction of ‘cruel and unusual punishments.'” Glossip v. Gross, 576 U.S. 863, 876 (2015). Eighth Amendment claims have both an objective element and a subjective element. Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018) (“A properly stated Eighth Amendment claim must allege a subjective and objective element.”). “To determine whether prison officials have violated the Eighth Amendment, we apply a two-prong test: (1) the deprivation must be ‘objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities'; and (2) the prison official must have been ‘deliberate[ly] indifferen[t] to inmate health or safety.'” Porter v. Pennsylvania Dept of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
Here, Wallace asserts that due to his imprisonment he cannot effectively practice social distancing. See doc. 1 at 9, 21. But that in and of itself is insufficient to establish an Eighth Amendment violation. See Counterman, 2021 WL 3771884, at *3 (observing that “despite the unique concerns regarding the spread of the COVID-19 virus in confined, prison settings, courts within this circuit have found that the inability to practice social distancing is not, in and of itself, sufficiently serious to implicate a violation of the Eighth Amendment” (internal citations and quotation marks omitted)). Moreover, Wallace is vaccinated. Doc. 1 at 21. And the respondents assert that a booster shot is available to Wallace, an assertion that Wallace does not contest. The respondents further assert that at the time they filed their response, there were no COVID-19 cases at USP Canaan, also an assertion that Wallace does not contest. Given the circumstances, Wallace cannot show deliberate indifference, and his Eighth Amendment claim fails.
IV. Recommendations.
For the foregoing reasons, we recommended that the court dismiss Wallace's claim challenging his conviction and sentence for lack of jurisdiction. And we recommend that the court deny Wallace's motion (doc. 25) to supplement his habeas petition to add additional claims challenging his conviction and sentence. We further recommend that the court dismiss Wallace's Eighth Amendment claim or, in the alternative, deny that claim. We also recommend that the court dismiss the United States as a respondent.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.