Opinion
Civil Action 3:20-CV-01389
06-15-2021
BRANDON MICHAEL COBURN, Petitioner, v. STEPHEN SPAULDING, Warden of FPC-Lewisburg, Respondent.
MANNION, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK Chief United States Magistrate Judge
This is a pro se habeas corpus action arising under 28 U.S.C. § 2241, initiated upon the filing of the original Petition in this matter by Petitioner Brandon Michael Coburn (“Coburn”) on August 7, 2020. (Doc. 1). In his Petition, Coburn alleges that (1) the Bureau of Prisons (“BOP”) violated section 706 of the Administrative Procedure Act (“APA”) when they denied his request for home confinement, “as other inmates, similarly situated, have been released”; (2) the BOP violated the United States Constitution by “depriving Petitioner of liberty interests without due process of law”; and (3) the BOP's inaction towards Petitioner's request is in violation of the Equal Protection Clause. (Doc. 1, at 7-8). Petitioner requests waiver of the exhaustion requirement outlined by the Prison Litigation Reform Act (“PLRA”). (Doc. 1, at 4). Coburn is currently incarcerated at Lewisburg Federal Prison Camp (“FPC-Lewisburg”) and seeks an order dictating that the remainder of his sentence be completed on home confinement. (Doc. 1, at 8). Respondent Stephen Spaulding, the Warden of FPC-Lewisburg, responded to the Petition on September 29, 2020, and Coburn filed a Traverse on October 9, 2020. (Doc. 10; Doc. 12). Accordingly, Coburn's Petition is ripe for review and disposition.
For the following reasons, it is recommended that Coburn's Petition be denied and DISMISSED WITH PREJUDICE.
I. Background
On August 9, 2017, the United States District Court for the Western District of New York sentenced Coburn to a 108-month term of imprisonment relating to the distribution of fentanyl. (Doc. 2, at 8; Doc. 10, at 7). Coburn initiated the present action by filing his Petition on August 7, 2020, upon Respondent's denial of Coburn's request for home confinement by means of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). (Doc. 1). On September 29, 2020, Respondent filed his Response. (Doc. 10). Petitioner filed his Traverse on October 9, 2020. (Doc. 12). In addition, Petitioner filed a Motion for Immediate Action on December 28, 2020, along with multiple notices, a declaration, and a supplement.(Doc. 13; Doc. 14; Doc. 15; Doc. 16; Doc. 18; Doc. 19).
On December 28, 2020, Coburn filed a Motion for Immediat[e] Action. (Doc. 16). Because Coburn had failed to exhaust his administrative remedies at the time, immediate action was not appropriate. See Cordaro v. Finley, 3:10-CR-75, 2020 WL 2084960, at *1, *6-7 (Apr. 30, 2020) (petition challenging the BOP's decision to deny him home confinement was dismissed without prejudice due to Petitioner's failure to exhaust his administrative remedies); see also Furando v. Ortiz, Civ. Action No. 20-3739(RMB), 2020 WL 1922357, at *3-4 (D.N.J. Apr. 21, 2020). The Court recommends that Petitioner's Motion for Immediat[e] Action be denied for lack of exhaustion. (Doc. 16).
In his Petition, Coburn first requests that the requirement that he exhaust his administrative remedies set forth by the PLRA be waived because COVID-19 is present at FPC-Lewisburg, FPC-Lewisburg's attempts “to mitigate the spread of the virus” are insufficient, and Petitioner believes “the BOP is intentionally ‘stalling'” his appeals. (Doc. 1, at 4; Doc. 2, at 19-22). Second, Coburn alleges that the BOP violated APA § 706 when they denied his request for home confinement because other inmates that were in a similar situation as Coburn were released and the severity of Coburn's cerebrovascular disorder as it pertains to COVID-19 was overlooked by the warden. (Doc. 1, at 6-7; Doc. 2, at 30). Third, Coburn argues that the BOP is depriving him “of liberty interests without due process of law” because the prison conditions do not comply with the COVID-19 recommendations by the Centers for Disease Control and Prevention (“CDC”), which result in a deprivation of Coburn's liberty. (Doc. 1, at 7; Doc. 2, at 36-37). Fourth, Coburn states that the BOP treated him “differently from other similarly situated inmates intentionally and without rational basis as a ‘class of one'” in violation of the Equal Protection clause. (Doc. 1, at 7; Doc. 2, at 41). Respondent argues that Coburn has failed to exhaust his administrative remedies, that the decision to deny Coburn home confinement lies exclusively with the BOP and is not subject to judicial review, that the BOP's decision to deny Coburn home confinement is adequately supported, and the BOP's decision to deny Coburn home confinement “does not amount to a constitutional violation.” (Doc. 10, at 1-2). Coburn seeks an order dictating that the remainder of his sentence be completed on home confinement. (Doc. 1, at 8).
II. Discussion
“Federal Courts are courts of limited jurisdiction, ” possessing “only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994). 28 U.S.C. § 2241 grants this Court jurisdiction to hear habeas corpus petitions. Habeas corpus review under § 2241 “allows a federal prisoner to challenge the 'execution' of his sentence.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). A habeas corpus petition may be brought by a prisoner who seeks to challenge either the fact or duration of his confinement in prison. Preiser v. Rodriguez, 411 U.S. 475 (1973), Telford v. Hepting, 980 F.2d 745, 748 (3d Cir.), cert. denied, 510 U.S. 920 (1993). Federal habeas relief is available only “where the deprivation of rights is such that it necessarily impacts the fact or length of detention.” Learner v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002). In the instant habeas petition, Coburn claims that the BOP wrongfully denied his request for home confinement in violation of his Due Process rights under the United States Constitution, APA § 706, and the Equal Protection Clause. (Doc. 1, at 6-7).
A. Exhaustion of Administrative Remedies as Required by the PLRA
Coburn requests that the Court waive his requirement to exhaust his administrative remedies “due to the exceptional circumstances and to prevent irreparable harm.” (Doc. 12, at 8). Respondent states that Coburn must exhaust his administrative remedies and that Coburn's request to waive this requirement is meritless. (Doc. 10, at 9, 11).
“Although 28 U.S.C. § 2241 contains no statutory exhaustion requirement, a federal prisoner may not ordinarily bring a § 2241 petition, challenging the execution of his sentence, until he has exhausted all available administrative remedies.” Kmet v. Ortiz, Civ. No. 19-9185 (RBK), 2020 WL 1685648, at *3 (D.N.J. Apr. 7, 2020) (citing Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000)) (denying Petitioner's claims due to his failure to exhaust administrative remedies when Petitioner filed a final appeal a month after the filing of his Petition). The PLRA “mandates that an inmate exhaust ‘such administrative remedies as are available' before bringing suit to challenge prison conditions.” Gardner v. Wetzel, 1:18-cv-2285, 2020 WL 1244372, at *3 (M.D. Pa. Mar. 16, 2020) (quoting Ross v. Blake, 136 S.Ct. 1850, 1856 (2016)); see also Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (“[I]t is beyond the power of this court - or any other - to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.”). The United States Court of Appeals for the Third Circuit has consistently held that inmates must exhaust procedural remedies before bringing a federal habeas claim. Speight v. Minor, 245 Fed.Appx. 213, 215 (3d Cir. 2007) (not precedential); Callwood, 230 F.3d at 634; Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). In Moscato, the Third Circuit explained that exhaustion serves three valuable purposes: “(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.” 98 F.3d at 761-62.
Coburn therefore needed to satisfy the procedural requirements of the BOP's administrative remedy program in order to properly exhaust the claims in his Petition. See Moscato, 98 F.3d at 761 (“[A] procedural default in the administrative process bars judicial review because ‘the reasons for requiring that prisoners challenging disciplinary actions exhaust their administrative remedies are analogous to the reasons for requiring that they exhaust their judicial remedies before challenging their convictions....'”) (quoting Sanchez v. Miller, 792 F.2d 694, 698 (7th Cir. 1986)). Although Coburn has now completed the administrative review process outlined by the BOP, “a prisoner may not fulfill the PLRA's exhaustion requirement by exhausting administrative remedies after the filing of the complaint in federal court.” (Doc. 18); Oriakhi v. United States, 165 Fed.Appx. 991, 993 (3d Cir. 2006) (citing Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003) (“the district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred”)); see also Jenkins v. Dancha, 723 Fed.Appx. 174, 175 (3d Cir. 2018). Coburn concedes that he had failed to exhaust his administrative remedies before filing his petition. (Doc. 12, at 8).
An inmate's failure to exhaust administrative remedies may be excused where the inmate can show that there was no opportunity to obtain adequate redress or that exhaustion would be futile. See Azzara v. Martinez, Civ. Action No. 4:CV-11-1363, 2014 WL 2180163, at *6 (M.D. Pa. May 23, 2014); see also Spencer v. Martinez, Civ. No. 4:CV-09-0932, 2009 WL 4544744, at *2 (M.D. Pa. Nov. 30, 2009). Here, Coburn has been provided the opportunity to obtain adequate redress in that he was able to complete the administrative review process and filed all of his appeals with the BOP. (Doc. 2, at 17-24; Doc. 2-1, at 12-13, 31, 52-53; Doc. 18; Doc. 20, at 6-7, 8, 9-10, 11). To the extent that Coburn did not receive responses to his appeals, § 542.18 dictates that he “may consider the absence of a response to be a denial at that level” and proceed to the next appeal level. Therefore, Coburn has failed to demonstrate that he was unable to obtain adequate redress through the administrative remedies process. Additionally, the Third Circuit has affirmed that when the BOP acts “within its statutory authority condition[ing] pre-release transfer upon” certain statutory requirements, a Petitioner cannot demonstrate that his failure to exhaust should be excused, based on futility. Murray v. Grondolsky, 369 Fed.Appx. 318, 319-20 (3d Cir. 2010). Specifically, “[t]he plain text of the CARES Act grants additional discretion to the Attorney General; it does not require the BOP to release all at-risk, non-violent inmates.” Defoggi v. United States, Civ. No. 20-3889 (NHL), 2020 WL 2899495, at *5 (D.N.J. June 3, 2020). As discussed infra, Coburn cannot demonstrate that the BOP has abused its discretion in failing to provide him release on home confinement because the BOP abided by statutory authority. Coburn has not demonstrated a reason why his failure to exhaust his administrative remedies should be excused and it is recommended that his claims be denied. See Defoggi, 2020 WL 2899495, at *6 (“[T]he BOP's interpretation of the CARES Act is reasonable as applied to Petitioner . . . Petitioner has not shown cause and prejudice because there was no cause for failing to exhaust and no prejudice because BOP did not abuse its discretion.”)
B. Petitioner's Challenge to the BOP's denial of Petitioner's Request for Home Confinement under the CARES Act
Further, to the extent that Coburn challenges the BOP's denial of his request for home confinement under the CARES Act, the Court does not have the authority to review such a request. See Cordaro v. Finley, No. 3:10-CR-75, 2020 WL 2084960, at *1, *6-7 (Apr. 30, 2020). Respondent argues that Coburn's Petition should be dismissed “because [the] BOP's home confinement determinations are not subject to judicial review.” (Doc. 10, at 12). Petitioner states that although “the Court cannot grant home confinement . . . it has jurisdiction to review an agency decision when it is unconstitutional and/or an abuse of discretion” and can then “release [Petitioner] from prison . . . [subject to] supervised release.” (Doc. 12, at 15). “Congress sought to address the spread of the coronavirus in prisons by permitting BOP to expand the use of home confinement under [18 U.S.C. § 3624(c)(2)]” through the CARES Act. Furando v. Ortiz, Civ. Action No. 20-3739(RMB), 2020 WL 3264161, at *2 (D.N.J. June 17, 2020) (citing Pub. L. No. 116-36, § 12003(b)(2)). “Upon direction of the Attorney General, Section 12003(b)(2) of the CARES Act temporarily suspends the limitation of home confinement to the shorter of 10 percent of the inmate's sentence or 6 months.” Furando, 2020 WL 1922357, at *2. “Thus, the CARES Act provides that if the Attorney General finds that emergency conditions will materially affect the functioning of the BOP, as he did on April 3, 2020, the BOP Director may increase the maximum amount of time that a prisoner may spend in home confinement under the first sentence of 18 U.S.C. § 3624(c)(2).” Cordaro, 2020 WL 2084960, at *7; see also Furando, 2020 WL 1922357, at *2; United States v. Cruz, 455 F.Supp.3d 154, 159 (M.D. Pa. 2020). 18 U.S.C. § 3621(b) states that “[t]he Bureau of Prisons shall designate the place of the prisoner's imprisonment.” See also Woodall, 432 F.3d at 239 (“Under 18 U.S.C. § 3621(b), the BOP is vested with authority to determine the location of an inmate's imprisonment”). Additionally, 18 U.S.C. § 3624(c)(2) dictates prerelease custody of a prisoner to home confinement extending the authority “to place a prisoner in home confinement” to the Bureau of Prisons. See also Cruz, 455 F.Supp.3d at 159. Therefore, the “determination of which inmates qualify for home confinement under the CARES Act is with the BOP Director. . . . Thus, ‘[c]ourts . . . do not have power to grant relief under Section 12003 of the CARES Act.'” Cruz, 455 F.Supp.3d at 159 (quoting United States v. Coker, 2020 WL 1877800, *1 (E.D. Tenn. April 15, 2020)); see also Cordaro, 2020 WL 2084960, at *7; United States v. Read-Forbes, 2020 WL 1888856, at *5 (D. Kan. Apr. 16, 2020); United States v. Engleson, 2020 WL 1821797, at *1 (S.D.N.Y. Apr. 10, 2020); United States v. Hembry, 2020 WL 1821930, at *2 (N.D. Cal. Apr. 10, 2020); United States v. Carter, 2020 WL 1808288, at *2 (S.D. Ind. Apr. 9, 2020); United States v. Garza, 2020 WL 1485782, at *1 (S.D. Cal. Mar. 27, 2020))).
Here, the Court lacks the power to release Coburn on home confinement under the CARES Act. See United States v. Stroman, No. 3:14-CR-270, 2020 WL 4448056, at *5 (M.D. Pa. Aug. 3, 2020) (“[Petitioner's] motion will be dismissed to the extent it is under the CARES Act since the court does not have the authority to grant [Petitioner] relief under the Act”); see also United States v. Banks, No. 2:15-CR-00168, 2020 WL 4820199, at *2 (W.D. Pa. July 30, 2020) (“[A] district court does not have authority under the CARES Act to order the BOP to alter a defendant's location of confinement-that determination remains with the BOP” (internal quotations omitted)). “[S]ince the authority to make this determination lies with the BOP Director and not the court” the Court recommends dismissal of Coburn's claims as they seek to challenge the BOP's decision under the CARES Act. See Cordaro, 2020 WL 2084960, at *8.
C. Petitioner's Challenge to the BOP's Denial of Petitioner's Request for Home Confinement under 28 U.S.C. § 2241
Petitioner “seeks immediate release from custody at [FPC-Lewisburg to home confinemen]t since he believes his health is in imminent risk at the prison . . ., which ‘is unequivocally a habeas remedy.'” See Cordaro, 2020 WL 2084960, at *4 (citing United States v. Serfass, Crim. No. 3:15-39, 2020 WL 1874126, at *2 (M.D. Pa. Apr. 15, 2020). “[The] execution of a petitioner's sentence is broadly defined by the Third Circuit to include such matters as administration of parole, sentence computation, prison disciplinary proceedings, prison transfers, and even conditions generally.” Serfass, 2020 WL 1874126, at *2 (citing Woodall, 432 F.3d at 241-44 (internal quotations omitted)). Here, Coburn challenges the execution of his sentence “since [he] requests the court alter its terms and . . . immediately release [him] to home confinement.” Serfass, 2020 WL 1874126, at *2. Respondent avers that “the BOP's determination was within its legal, statutory, and regulatory authority and supported by [facts].” (Doc. 10, at 15).
Although the Court cannot review Coburn's challenge to the BOP's decision under the CARES Act, the Court may assess “whether the BOP abused its discretion.” Vasquez v. Strada, 684 F.3d 431, 434 (3d Cir. 2012) (citing Barden v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981); Furando, 2020 WL 3264161, at *3; see also Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990) (“If this designation impacts the fact or duration of a prisoner's sentence, the BOP's decision is subject to judicial review for abuse of discretion”); United States v. Allen, 124 F. App'x. 719, 721 (3d Cir. 2005); Rush v. Shartle, Civ. No. 13-4788 (NLH), 2015 WL 5567307, at *7 (D.N.J. Sep. 22, 2015) (citing Keohane, 921 F.2d at 480-83 (“The decision of the BOP is subject to judicial review only for abuse of discretion”).
The Court will review the BOP's decision for abuse of discretion in denying Petitioner's request for home confinement based on Petitioner's amount of time served. See Vasquez, 684 F.3d at 434. “The test is not whether a reviewing court would weigh the factors differently. The writ may issue only where an error is fundamental and carries a serious potential for a miscarriage of justice.” Eccleston v. United States, 390 Fed.Appx. 62, 65 (3d Cir. 2010). An incorrect determination by the BOP regarding an inmate's “eligibility for early release . . . carries a potential for a miscarriage of justice that can be corrected through habeas corpus.” Reeves v. Federal Bureau of Prisons, Civ. No. 13-1795 (JBS), 2014 WL 673019, at *1 (D.N.J. Feb. 21, 2014) (citing Murray v. Carrier, 477 U.S. 478, 495 (1986); Keohane, 921 F.2d at 479).
The Third Circuit has held that the BOP's review of statutory factors and ultimate denial of a Petitioner's appeal is a valid “exercise of discretion.” Eccleston, 390 Fed.Appx. at 65; see also Pickett v. Warden McKean FCI, 726 Fed.Appx. 104, 107 (3d Cir. 2018); Wilson v. Strada, 474 Fed.Appx. 46, 48 (3d Cir. 2012). “[T]he CARES Act does not mandate home confinement for any class of inmate.” Stroman, 2020 WL 4448056, at *7 (internal quotation omitted). Additionally, “nothing in the Act grants individual prisoners the right to serve the remainder of their sentence in home confinement.” Gottstein v. Finley, 3:20-CV-0935, 2020 WL 3078028, at *7 (M.D. Pa. June 10, 2020) (quoting United States v. Soliz, Crim. No. 2:16-190-3, 2020 WL 2500127, at *4 (S.D. Tex. May 14, 2020)).
Here, Coburn requested “transfer to home confinement” through the CARES Act with an included release plan on June 25, 2020. (Doc. 2, at 17; Doc. 2-1, at 8). On June 29, 2020, the BOP denied Coburn's request on the grounds that he had “not reached 50% of time served.” (Doc. 2, at 17; Doc. 2-1, at 7). After receiving his denial, Coburn filed various appeals through request for administrative remedy forms and was denied each time due to his failure to meet all of the criteria required for transfer to home confinement, specifically because he had failed to complete 50% of his time served and has more than 18 months remaining on his sentence. (Doc. 2, at 17-24; Doc. 2-1, at 12-13, 31, 52-53; Doc. 20, at 6-7, 8, 9-10, 11). As of April 28, 2021, Petitioner has served about 46% of his sentence. (Doc. 10, at 7). On August 18, 2021, Petitioner will have served half of his statutory good conduct time term. Per the Memorandum regarding home confinement produced by the Department of Justice on May 8, 2020 (“Memorandum”), inmates who have “served 50% or more of their sentence, or have 18 months or less remaining on their sentence and have served 25% or more of their sentence” are given priority for home confinement although the “factors are subject to deviation in certain circumstances.” (Doc. 2-1, at 4; Doc. 10-7, at 11).
Although Coburn may have met other factors within the Memorandum, the BOP determined that he was not a priority candidate for home confinement based on the amount of time he had served. (Doc. 2-1, at 7). This determination is in accordance with the Memorandum. (Doc. 2-1, at 4; Doc. 10-7, at 11); see also Defoggi, Civ. No. 20-3889, 2020 WL 2899495, at *6 (D.N.J. June 3, 2020) (noting that a prisoner who had only served 28% of his sentence made him “ineligible for transfer under the CARES Act”). The BOP's determination evidences that Coburn “was considered for [home confinement] placement, ” accordingly there is “no reason to upset the findings of the BOP [because] . . . it is clear that Petitioner was properly considered, and thus no constitutional violation occurred.” See Mennen v. Zickefoose, Civ. Action No. 11-1794 (JBS), 2012 WL 113645, at *3 (D.N.J. Jan. 13, 2012); Senior v. Zickefoose, Civ. Action No. 12-0127 (RBK), 2013 WL 875973, at *3 (D.N.J. Mar. 7, 2013); Roccaforte v. Shartle, Civ. No. 13-5660, 2014 WL 3499999, at *3 (D.N.J. July 14, 2012). Additionally, through Coburn's appeals, the BOP reaffirmed its decision. It stated multiple times that his appeal for home confinement was denied due to his lack of appropriate time served. (Doc. 2-1, at 12-13, 31, 52; Doc. 20, at 6-12). Because the BOP “gave [Coburn] an individual review” of the factors set forth by the Memorandum expanding 18 U.S.C. § 3624(c)(2), the Court finds “no abuse of discretion in the way that the [temporarily revised 18 U.S.C. § 3624(c)(2)] factors were balanced.” See Vasquez, 684 F.3d at 434.
D. Petitioner's Challenge to the BOP's Denial of Petitioner's Request for Home Confinement under APA § 706
In his Petition, Coburn alleges that the BOP violated his rights through section 706 of the APA. Respondent contends that decisions regarding home confinement by the BOP are “excluded from juridical review” and that the BOP did not abuse its discretion in denying Coburn's request for home confinement. (Doc. 10, at 15-16).
Coburn argues that the BOP violated section 706 of the APA when denying his request for home confinement because “[t]he Warden entirely failed to consider an important aspect of the problem and offered an explanation for his decision that runs counter to the evidence before him.” (Doc. 1, at 6-7). Respondent contends that the BOP did not abuse its discretion by relying on factors outlined by the Attorney General “such as length of the inmate's remaining sentence.” (Doc. 10, at 16). Additionally, Respondent notes that “decisions made under 18 U.S.C. §§3621-3624 are not subject to review under the [APA].” (Doc. 10, at 16). 18 U.S.C. § 3625 states that “[t]he provisions of section[n] . . . 706 of title 5, United States Code [the APA], do[es] not apply to the making of any determination, decision, or order under [Subchapter C - Imprisonment, including § 3621 and § 3624].” See Gilmore v. Quay, No. 4:20-CV-01292, 2021 WL 880430, at *4 (M.D. Pa. Mar. 9, 2020) (“[B]ecause the BOP's placement decisions, including determination regarding . . . home confinement placement, are expressly insulated from judicial review, the provisions of the . . . APA do not apply”); see also Woods v. Bureau of Prisons, No. 0:20-115-KKC, 2020 WL 5919671, at *2 (E.D. Ky. Oct. 6, 2020). “[T]he plain language of [18 U.S.C. § 3625] specifies that the judicial review provisions of the APA, 5 U.S.C. §§ 701-706, do not apply to ‘any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624 . . . . To find that prisoners can bring habeas petitions under 28 U.S.C. § 2241 to challenge the BOP's discretionary determinations made pursuant to 18 U.S.C. §3621 would be inconsistent with the language of 18 U.S.C. § 3625.” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). Therefore, the Court is not permitted to review the BOP's decision under section 706 of the APA and Coburn's challenges under this provision cannot stand.
E. Constitutional Claims
“[T]he mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP's statutory role, and its extensive and professional efforts to curtail the virus's spread.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (citing generally Fed. Bureau of Prisons, COVID-19 Action Plan (Mar. 13, 2020, 3:09 PM)). In his Petition, Coburn alleges that the BOP violated his rights to due process of law and through the Equal Protection Clause. (Doc. 1, at 6-7). Respondent contends that the BOP did not abuse its discretion in determining that Coburn did not qualify for home confinement because they relied on the factors set forth in the two home confinement orders from the Attorney General and thus did not violate Coburn's rights. (Doc. 10, at 15-16).
1. Due Process
Coburn states that the BOP deprived him of liberty interests without due process of law because his sentence now imposes a “significant hardship in relation to the ordinary incidents of prison life, exceeding the [nature of his] sentence.” (Doc. 1, at 7). Respondent argues that no liberty interests were created because release under 18 U.S.C. § 3624 (c) “is not explicitly mandatory.” (Doc. 10, at 16).
Although Coburn's claims may not be reviewable under the APA, the Third Circuit has explained that “judicial review remains available for allegations that the BOP action violates the United States Constitution . . . or is contrary to established federal law.” Dababneh v. Warden Loretto FCI, 792 Fed.Appx. 149, 151 (3d Cir. 2019) (citing Webster v. Doe, 486 U.S. 592, 603-04, (1988); Neal v. United States, 516 U.S. 284, 295 (1996)). This Court has recognized the “broad administrative and discretionary authority” that is possessed by prison officials as it pertains to their institutions and the “narrow range of protected liberty interest” possessed by lawful incarcerated individuals. Gambino v. Gerlinski, 96 F.Supp.2d 456, 458 (M.D. Pa. 2000). “[I]t is well established that prisoners have no constitutional right to placement in any particular prison, custody classification or housing assignment.” Hicks v. Warden, No. 3:CV-16-2476, 2017 WL 4269407, at *3 (M.D. Pa. Sept. 26, 2017) (citing Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Sheehan v. Beyer, 51 F.3d 1170, 1174 (3d Cir. 1995)). “[A]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.” Gambino, 96 F.Supp.2d at 458 (quoting Hewitt v. Helms, 459 U.S. 460, 467-68 (1983)). Additionally, “[i]n order for a statute to confer a liberty interest it must be ‘explicitly mandatory' and provide for ‘specified substantive predicates' which dictate a substantive result.” Gambino, 96 F.Supp.2d at 459 (quoting Hewitt, 459 U.S. at 471-72). Coburn states that he is “being deprived liberty interest, without due process of law” due to the BOP's denial of his CARES Act release request paired with the recent surge of coronavirus on the compound and the worsening prison conditions. (Doc. 2, at 36). However, an inmate does not possess a “protectable liberty interest” under the CARES Act regarding release on home confinement. See Dababneh, 792 Fed.Appx. at 151; see also Stroman, 2020 WL 4448056, at *7 (“[T]he CARES Act does not mandate home confinement for any class of inmate”) (internal quotation omitted); Gottstein, 2020 WL 3078028, at *7 (“[N]othing in the Act grants individual prisoners the right to serve the remainder of their sentence in home confinement”). Therefore, Coburn's claim that he has been deprived liberty interests in violation of the Due Process Clause because he was not granted home confinement cannot stand because the CARES Act does not provide a liberty interest for inmates. See Dababneh, 792 Fed.Appx. at 151. Coburn also argues that due to COVID-19, the “[c]urrent prison conditions are a violation of procedural due process as they ‘exceed [] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” (Doc. 2, at 36) (citation omitted). “[D]etermining whether prison conditions pose a substantial risk of serious harm from COVID-19, or any other risk, must be determined ‘after accounting for the protective measures [the BOP] has taken.'” Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323, 350 (S.D.N.Y. 2020) (quoting Chunn v. Edge, 465 F.Supp.3d 168, 200 (E.D.N.Y. 2020) (quoting Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020)). However, Coburn's condition does not meet “the extraordinary conditions of confinement . . . in which habeas relief might be available” in that he has not alleged that he is suffering from COVID-19 nor that he is receiving inadequate medical treatment for the virus. See Camacho Lopez v. Lowe, 452 F.Supp.3d 150, 160 (M.D. Pa. 2020) (“[T]he extraordinary conditions of confinement . . . where the petitioner tested positive for and had been hospitalized by a potentially deadly pandemic virus and claims that officials cannot properly treat him . . . constitute the extreme case in which habeas relief might be available”). Additionally, to the extent Coburn challenges the conditions of his confinement at FPC-Lewisburg due to its COVID-19 restrictions, such a complaint is best raised “pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bur. Of Narcotics, 403 U.S. 388 (1971).” See Agedah v. United States Dept. of Sec., Civ. Action No. 3:20-CV-00868, 2020 WL 5607670, at *1, n.1 (M.D. Pa, July 27, 2020) (“[T]he proper avenue of relief for any claims regarding [Petitioner's] conditions of confinement is a suit pursuant to Bivens”). Therefore, Coburn's due process claims are not proper under the CARES Act or in the form of a habeas petition.
2. Equal Protection
Finally, Coburn contends that the BOP's failure to grant him home confinement violates the Equal Protection Clause in that Coburn is being treated differently than others who are similarly situated, “intentionally and without rational basis as a ‘class of one.'” (Doc. 1, at 7). Respondent states that Coburn has failed to demonstrate differential treatment because he “has not presented any evidence or argument beyond a threadbare assertion that he is being treated differently than any similarly situated inmate at Lewisburg Camp, or even USP Lewisburg as a whole.” (Doc. 10, at 17).
The Equal Protection Clause of the Fourteenth Amendment protects prisoners from being “treated differently from persons who are similarly situated.” See Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). When stating an equal protection claim, a petitioner must first show that he has been treated differently from similarly situated individuals. See City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). A petitioner may bring an equal protection claim under two legal theories. Margetta v. Ferguson, No. 1:17-CV-0037, 2018 WL 1430936, *3 (M.D. Pa. Mar. 22, 2018). In a traditional case, a petitioner asserts a respondent treated him differently from other similarly situated individuals because of his membership in an identifiable or protected class, such as race, religion, sex, or national origin. Mack v. Warden Loretto FCI, 839 F.3d 286, 305 n.112 (3d Cir. 2016). In a “class of one” claim, a petitioner does not allege discrimination based on membership in a protected class or particular group, but rather, asserts a respondent treated him differently from others similarly situated for arbitrary or irrational reasons. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Phillips v. City of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008). Here, Coburn asserts a “class of one” equal protection claim: that he was treated differently from other similarly situated individuals when he was denied home confinement based on his time served. (Doc. 1, at 7; Doc. 2, at 41).
“The Third Circuit has held that the [petitioner] must present evidence of purposeful discrimination to successfully present an equal protection claim; an inference of purposeful discrimination arising from non-identical [treatment] is not sufficient.” Talley v. Wetzel, No. 3:15-CV-01698, 2020 WL 5648169, at *9 (M.D. Pa. Jan. 29, 2020), report and recommendation adopted, No. 3:15-CV-01698, 2020 WL 5645919 (M.D. Pa. Sept. 22, 2020) (quoting Millard v. Hufford, 415 Fed.Appx. 348, 350 (3d Cir. 2011). A petitioner asserting a “class of one” claim must also show that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Willowbrook, 528 U.S. at 564. “A claimant alleging a violation of the right to equal protection has the burden to prove ‘the existence of purposeful discrimination.'” Ryan v. Scism, 474 Fed.Appx. 49, 52 (3d Cir. 2012) (quoting McCleskey v. Kemp, 481 U.S. 279, 292 (1987)). “This requires that [Coburn] prove that he received different treatment from that received by other individuals similarly situated and that BOP acted with discriminatory purpose.” Ryan, 474 Fed.Appx. at 52; see also McCleskey, 481 U.S. at 292; Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 196 (3d Cir.2009). Here, Coburn provides the names of two inmates, who were not detained at FPC-Lewisburg, who were released to home confinement and had not met the time served requirement at the time of their release. (Doc. 12, at 30). Coburn has not provided evidence that these inmates were detained at FPC-Lewisburg nor has he provided evidence as to how they are similarly situated to himself beyond stating that “[t]hey may meet all other criteria for release, but so do I.” (Doc. 12, at 30); see Ryan, 474 Fed.Appx. at 52. Coburn states that “[t]here are also inmates here at Lewisburg [who have not reached 50% time served] that have filled out the appropriate paperwork to be released, although they have not yet received a date to go home” and provides the name of an inmate at FPC-Lewisburg who was released to home confinement that did not meet the time served requirement. (Doc. 12, at 30; Doc. 15, at 1). Although these inmates may be similarly situated to Coburn, Coburn fails to demonstrate a discriminatory motive on the part of the BOP. See Ryan, 474 Fed.Appx. at 52; McCleskey, 481 U.S. at 292; Chambers, 587 F.3d at 196. Further, Coburn's request “was [denied] in conformity with the [CARES Act]. . . . [Coburn] therefore fails to show that [the denial of his request] was motivated with a discriminatory purpose.” See Hall v. Zickefoose, 448 Fed.Appx. 184, 187 (3d Cir. 2011); see also Ryan, 474 Fed.Appx. at 52; Faruq v. McCollum, Civ. Action No. 11-5987 (JBS), 2013 WL 3283942, at *6 (D.N.J. June 25, 2013) (“Plaintiff cannot show that the BOP's decision was the result of purposeful discrimination where it was consistent with [the regulation]”).
Moreover, this Court has held “that state action involving ‘discretionary decision making based on a vast array of subjective, individualized assessments' does not violate Equal Protection ‘when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.'” Capozzi v. PA Bd. Prob. & Parole, Civ. Action No. 3:17-CV-2102, 2019 WL 4309069, at *7 (M.D. Pa. July 29, 2019) (citing Engquist v. Or. Dep't of Agric., 553 U.S. 591, 603 (2008)). Therefore, Coburn's equal protection claim pertaining to his disparate treatment based on the guidelines set forth in the Memorandum and the subjective power provided to the BOP by the Memorandum to forego the time served requirement cannot stand.
III. Recommendation
Based on the foregoing, it is respectfully recommended that Coburn's Petition (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE and that the Clerk of Court be directed to CLOSE THIS CASE. Additionally, it is recommended that Petitioner's Motion for Immediat[e] Action (Doc. 16) be DENIED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 15, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
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.