Opinion
Civil Action 1:20-cv-01908-CMA-SKC
12-01-2020
STEPHEN PLATO MCRAE, Petitioner, v. MICHAEL CARVAJAL, et al. Respondents.
RECOMMENDATION RE: PLAINTIFF'S PETITION FOR WRIT OF HABEAS CORPUS 28 U.S.C. § 2241 [#1]
S. KATO CREWS, UNITED STATES MAGISTRATE JUDGE
Petitioner Stephen Plato McRae (“McRae”) is an inmate at the Federal Correctional Institution (“FCI”) in Florence, Colorado. According to McRae, he has multiple comorbidities that put him at a heightened risk for complications from COVID-19. These conditions include chronic obstructive pulmonary disease, congestive heart failure, a compromised liver, and hardening arteries. [#1.] McRae contends the Bureau of Prisons (“BOP”) and its officials have failed to take adequate measures to protect him from the dangers of the COVID-19 pandemic. He alleges the Respondents have failed to, among other things, implement proper cleaning, testing, and screening protocols; provide proper personal protective equipment; or arrange for appropriate social distancing among inmates. [Id.]
The Court uses “[#__]” to refer to specific docket entries in CM/ECF.
In his Petition for Writ of Habeas Corpus 28 U.S.C. § 2241 (“Petition”), McRae seeks injunctive relief in the form of increased health monitoring, testing, and contact tracing; medically appropriate quarantine, isolation, and treatment for inmates and staff who test positive; improved cleaning protocols for the facility and increased distribution of hygiene products; and an independent monitor to oversee BOP's compliance with any court orders. [Id. at pp. 13-14.] He also seeks release from FCI with conditions or, alternatively, transfer to another BOP facility. [Id.] Respondents, who are all named in their official capacities (collectively “BOP”), argue BOP is taking reasonable measures to address the pandemic and McRae'e claims for relief are not cognizable. Having reviewed the parties' respective positions, the evidence, and the relevant law, the Court concludes a hearing on this matter is unnecessary. For the following reasons, the Court RECOMMENDS McRae's Petition be DENIED.
McRae proceeds pro se; thus, the Court liberally construes his pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the Court does not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se plaintiffs must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
A. Habeas Corpus 28 U.S.C. § 2241
Habeas Corpus review under Section 2241 is available if a prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Fundamental to McRae's petition is the principle that “a petition for writ of habeas corpus is only available to challenge the fact or duration of confinement-not the conditions of confinement.” Basri v. Barr, 2020 WL 5036063, at *2, __ F.Supp.3d__ (D. Colo. 2020). If a petitioner is not claiming his confinement is illegal under any circumstance, but rather argues it is illegal under the present conditions, his vehicle for relief is an action pursuant to 42 U.S.C. § 1983 (claims against state actors) or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (claims against federal actors). Id. (citing Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011)).
The Tenth Circuit has “endorsed this position, ” and in Palma-Salazar v. Davis, 677 F.3d 1031 (10th Cir. 2012) held:
In this circuit, a prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus. In contrast, a prisoner who challenges the conditions of his confinement must do so through a civil rights action.Id. at 1035; see also Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011) (“It is well-settled law that prisoners who wish to challenge only the conditions of their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits ... not through federal habeas proceedings.”).
In his Reply, McRae argues this Court should follow those cases permitting prisoners to assert conditions of confinement claims pursuant to Section 2241. [#36 at pp.16-18.] He contends, given his serious medical conditions, habeas corpus is the only avenue fast enough to sufficiently address his concerns. [Id.] The Court does not agree. Rather, as District Judge Daniel D. Domenico recognized in Basri, “it is not just the remedy that determines whether one is asserting a habeas corpus or a conditions-of-confinement claim; the difference is that a habeas claim is one that asserts detention under any circumstances is illegal.” Basri, 2020 WL 5036063, at *3 (emphasis in original).
In this case, McRae does not argue the very fact of detaining him, whatever the circumstances, is unconstitutional. Rather, his Petition is replete with allegations regarding the current conditions of his confinement and argues these conditions render his confinement unconstitutional in violation of the Eighth Amendment. The inverse of this thinking, however, would be absent the current conditions, McRae would have no basis for his claim. Under Tenth Circuit precedent this is not properly brought under Section 2241. Palma-Salazar, 677 F.3d at 1035; Standifer, 653 F.3d at 1280. That McRae believes a habeas claim is the fastest way to ensure his safety is beside the point. The appropriate avenue for his claim is a civil rights action filed pursuant to Bivens. Boyce v. Ashcroft, 251 F.3d 911, 918 (10th Cir.2001), judgment vacated on rehearing, 268 F.3d 953 (10th Cir. 2001). Therefore, to the extent McRae seek relief pursuant to 28 U.S.C. § 2241, the Court RECOMMENDS the petition be DENIED.
B. Preliminary Injunction
Because the Court is not bound by a pro se litigant's labels, McRae's filing could also be construed as a motion for preliminary injunction. See Castro v. United States, 540 U.S. 375, 381 (2003) (noting that it is appropriate for federal courts to ignore the legal labels attached to a pro se party's claims “to create a better correspondence between the substance of [the party's claims] and [the] underlying legal basis”). To be sure, the primary relief McRae seeks is injunctive; thus, the Court explores whether relief would be appropriate under such a rubric.
Respondents first contend McRae's Petition should be denied because he has failed to exhaust his administrative remedies. McRae admits as much, stating he did not exhaust his claims because he is likely to suffer irreparable injury and, in any event, the administrative remedy process would be futile and would not afford all measures of relief requested. [#1 at pp.11-12.] He also contends he has asked for BP-8 forms repeatedly but his requests have been ignored. The Court need not resolve this dispute because- even assuming McRae exhausted his remedies-injunctive relief is not warranted.
McRae presumably contends his attempts at exhausting his administrative remedies have been “thwarted” by prison staff. See Ross v. Blake, ___ U.S. __, 136 S.Ct. 1850, 1860 (2016). The Court notes BOP has provided evidence showing McRae consistently receives BP-8 forms when requested. [#21-5.]
1. Legal Standard
Injunctive relief is an extraordinary remedy which should only be granted when the moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). Granting such “drastic relief” is the exception rather than the rule. United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989); GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). In the Tenth Circuit, a party requesting injunctive relief must clearly establish the following: (1) the party will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and, (4) there is a substantial likelihood of success on the merits. Id.
If the injunction sought is of a “disfavored” type, the moving party must make an especially “strong showing” that the likelihood of success and balance of harms factors weigh in its favor. Free the Nipple-Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 797 (10th Cir. 2019). A disfavored preliminary injunction is one that: (1) mandates action (rather than prohibiting it); (2) changes the status quo; or (3) grants all the relief that the moving party could expect from a successful trial.
2. Analysis
McRae contends the alleged deficiencies in BOP's COVID-19 response constitute cruel and unusual punishment. Under the Eighth Amendment, “prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.'” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
An Eighth Amendment claim includes both objective and subjective components. Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective component asks whether the deprivation of a basic human need is sufficiently serious. Id. To make out a conditions-of-confinement claim, the deprivation must be extreme. Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Id. (internal citations and quotation marks omitted).
The subjective component asks whether the prison official acted with a sufficiently culpable state of mind. Wilson, 501 U.S. at 298. This follows from the principle that “‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297). The “deliberate indifference” subjective standard applies to claims of inhumane conditions of confinement. Wilson, 501 U.S. at 303-04. A finding of deliberate indifference requires a showing that the defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Under this standard, “the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id.
The Court assumes the objective component is met, and that BOP knows of the risks of COVID-19. See Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020) (“There is no doubt that infectious diseases generally and COVID-19 specifically can pose a risk of serious and fatal harm to prison inmates.”). Nevertheless, McRae has not demonstrated the Respondents have disregarded that risk. Rather, the evidence shows an extensive effort to combat this disease and protect the prisoners' health and safety.
There is no question that the BOP was aware of and understood the potential risk of serious harm to inmates through exposure to COVID-19. As of the date of this Order, eighty-four inmates and fourteen staff members at FCI tested positive for COVID-19. See www.bop.gov/coronavirus (last visited December 1, 2020). “We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious.” Hope v. Pelzer, 536 U.S. 730, 738 (2002). To be sure, the BOP acknowledged the risk from COVID-19 and implemented an eight-phase “Action Plan, ” in an effort to address the spread of the virus. [See #21-1 at ¶¶8-22 Declaration of Health Services Administrator Himlie.] And the Federal Correctional Complex in Florence, which includes FCI, specifically recognized the risk and implemented its own steps to prevent the introduction of COVID-19 into any of its facilities.
Ms. Himlie is the Health Services Administrator for FCI and the three other federal prisons located in Florence Colorado. [#21-1.] Ms. Himlie oversees the health services operations at each of the Florence prisons.
The key question is whether BOP “responded reasonably to the risk.” Farmer v. Brennan, 511 U.S. at 844. The answer is yes. On a nationwide basis, BOP has
implemented screening requirements for inmates and staff; temporarily suspended social visits, legal visits, inmate transfers, official travel, and contractor access; updated its quarantine and isolation procedures; and instituted a ‘modified operations' plan, which directs BOP facilities to adjust their daily operations in a manner that permits inmates to engage in physical distancing while in common areas, such as during mealtimes and recreation.[#21 at pp.2-3 (citing #21-1 at ¶¶10-13).] In addition, on April 1, 2020, BOP ordered “all inmates to remain ‘secured in their assigned cells/quarters,' with the exception of ‘limited group gathering' for specific purposes such as laundry and showers, in order to decrease the spread of the disease.” [Id. at p.3 (citing #21-1at ¶17).]
At FCI, the following measures have been taken regarding inmates: (1) providing inmates and staff with regular updates regarding the virus and BOP's response, including education regarding safety measures inmates and staff should take to stay healthy; (2) issuing face coverings to all inmates; (3) screening and quarantining new inmates for 14 days regardless of whether the inmate displays symptoms; (4) requiring medical staff to be present in each housing unit daily; (5) conducting enhanced screening for inmates with ongoing work details, such as food services, orderlies, and general maintenance; (6) screening all inmates for temperature and symptoms daily when a positive tests occurs; (7) immediately evaluating of any inmate presenting COVID-19 symptoms to determine whether testing or isolation is appropriate and whether any other inmate who had contact with the symptomatic inmate should be quarantined; (8) creating designated quarantine and isolation units; and (7) testing inmates based on CDC guidance, including looking to the nature and severity of symptoms, an inmate's potential exposure to COVID-19 and risk profile, and whether an inmate has a work detail that requires contact with other inmates or staff. [#21 at pp.3-6 (citing #21-1at ¶¶27-36).]
With respect to staff and visitors, FCI screens all staff member and visitors entering the facility, including temperature checks, disclosing any symptoms, and responding to questions designed to evaluate health risks. Staff are given the authority to deny entry to anyone reporting symptoms or with a temperature above 100.4 degrees. [Id. at p.6 (citing #21-1 at ¶¶37-39).] FCI has also limited its in-person meetings, capped the number of attendees at such meetings, implemented video-conferencing in place of in-person meetings, and limited the number of staff entering more than one institution. [Id. at p.7 (citing #21-1 at ¶43).]
As to sanitation and personal hygiene, FCI: (1) provides all inmates access to sinks, water, and soap at all times; (2) provides new soap weekly and at no charge to inmates with insufficient funds; (3) cleans all common areas in inmate housing daily (and typically multiple times per day) with a disinfectant that kills COVID-19; (4) provides this disinfectant to the inmates for use in their cells; (5) cleans all common areas outside of inmate living areas with the same disinfectant multiple time per day; (6) disinfects shared staff equipment such as keys and radios whenever the equipment is checked out or returned; and (7) provides personal protective equipment to staff in quarantined areas, isolation units, and screening sites. [Id. at pp.7-8 (citing 21-1 at ¶¶46-48).]
Other courts around the country have found similar actions taken in response to COVID-19 enough to preclude a finding of deliberate indifference. See e.g., Valentine, 956 F.3d at 802 (prison officials took measures recommended by the CDC and the plaintiffs offered no evidence they subjectively believed those actions were inadequate); Swain v. Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (neither the resultant harm in COVID-19 infections or the inability to achieve social distancing constituted a state of mind more blameworthy than negligence); Money v. Pritzker, Nos. 20-cv-2093, 20-cv-2094, 453 F.Supp.3d 1103, __, 2020 WL 1820660, at *18 (N.D. Ill. Apr. 10, 2020) (plaintiffs did not have a chance of success on this claim because the prison officials had come forth with a lengthy list of actions they had taken to try and protect inmates from COVID-19 and “the record simply [did] not support any suggestion that [the defendants] ha[d] turned the kind of blind eye and deaf ear to a known problem that would indicate ‘total unconcern' for the inmates' welfare” (citing Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012))).
The Court rejects McRae's argument that the amount of testing being done is an Eighth Amendment violation. An inmate's disagreement with the testing and treatment he receives does not rise to the level of a constitutional violation. Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968) (“The prisoner's right is to medical care-not to the type or scope of medical care which he personally desires.”) And McRae has not provided sufficient evidence (apart from his own statements) to support his contentions that BOP's screening has “fallen to zero, ” officers rarely wear gloves, and door handles are rarely cleaned. [#36 at pp.7-12.] Nor is there evidence BOP believed its actions to be inadequate. Rather, given the specific steps taken, the Court concludes BOP has responded reasonably to the risk presented by COVID-19, and therefore, McRae has failed to demonstrate a reasonable likelihood of success on the merits of an Eighth Amendment deliberate indifference claim.
The Court's conclusions in this regard are dispositive because a Court cannot issue a preliminary injunction where the movant presents no reasonable likelihood of success on the merits of his claim. Consequently, the Court does not address the remaining prongs of the preliminary injunction framework.
For the foregoing reasons, the Court RECOMMENDS McRae's Petition for Habeas Corpus be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, and waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).