Opinion
Case No. 2:20-cv-636
07-13-2020
MACKENNETH ORTIZ, Plaintiff v. LEE ESTOCK, et al., Defendants.
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that this case be dismissed for failure to state a claim upon which relief could be granted.
II. Report
Plaintiff MacKenneth Ortiz, who is a state prisoner incarcerated at SCI Pine Grove, has filed what purports to be a civil rights complaint pursuant to 42 U.S.C. § 1983 in which he challenges the treatment he has received at the prison and requests relief in the form of release because of the COVID-19 pandemic. He names as defendants Lee Estock (the Warden of SCI Pine Grove), Josh Shapiro (the Attorney General of Pennsylvania) and the Pennsylvania Board of Probation and Parole.
Plaintiff submitted his Complaint on May 1, 2020 but did not include either the filing fee or a motion to proceed in forma pauperis ("IFP") so his case was administratively closed. On May 5, 2020, he filed a motion to proceed IFP and his motion was granted. The Complaint was docketed the next day (ECF No. 8).
The Complaint itself is only 3 pages long and states only that Plaintiff seeks "discretionary review, compassionate release." It contains no factual allegations. However, Plaintiff also submitted a motion styled as "Pro Se Emergency Ex Parte Omnibus Motion for Relief Pursuant to 28 U.S.C. § 1983" (ECF No. 10). Subsequently, Plaintiff resubmitted the motion, which was originally handwritten, in typewritten form, indicating that "I have taken the liberty of providing a typed copy of [my] complaint to cure the previous defective complaint." (ECF No. 13 Ex. 1.) Therefore, the Court will construe these filings as part of Plaintiff's Complaint.
Plaintiff, age 49 years, is serving an aggregated term of five to ten years and is not eligible for parole until November 2023. His charges included forgery, theft, tampering with public records and bad checks. In terms of his health, he asserts that while he has been incarcerated, he suffered a severe stroke and was diagnosed with sarcoidosis, for which he has been hospitalized, as well as cirrhosis of the liver, and is awaiting surgical removal of his gallbladder. According to his motions, he also suffers from manic depressive disorder, PTSD, chronic liver disease and asthma.
Plaintiff claims that the prison has failed to provide him with the specialized medical care he requires. He alleges that the Department of Corrections' facilities are not equipped for COVID-19 or any mass epidemic and his medical conditions put him at risk of serious harm if he contracts COVID-19. According to Plaintiff, this is in violation of his rights under the Eighth Amendment, but the sole remedy he seeks is his compassionate release.
With respect to proceedings in forma pauperis, Section 1915 provides that: "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action ... fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). For the reasons that follow, it is recommended that the Complaint be dismissed.
As an initial matter, Plaintiff cannot proceed with this case under § 1983. The Supreme Court has long held that when a prisoner seeks "immediate release or a speedier release from [his] imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500 (1975). See also Hinkley v. Pennsylvania Bd. of Prob. & Parole, 2011 WL 6055413, at *1 (M.D. Pa. Oct. 11, 2011), report and recommendation adopted, 2011 WL 6097739 (M.D. Pa. Dec. 6, 2011) ("a court may not order a prisoner's release into the community in a § 1983 action."); Hensley v. Trempus, 2019 WL 958091, at *2 (W.D. Pa. Jan. 17, 2019), report and recommendation adopted, 2019 WL 951412 (W.D. Pa. Feb. 27, 2019) ("Plaintiff's request for an immediate release from prison is simply not cognizable in an action pursuant to 42 U.S.C. § 1983."); Camacho Lopez v. Lowe. 2020 WL 1689874, at *4 (M.D. Pa. Apr. 9, 2020) (if a prisoner seeks immediate release from custody, the "sole federal remedy" lies in habeas corpus).
Moreover, even if Plaintiff had filed a petition for habeas corpus, he would not present a case for compassionate release merely because of his concerns of contracting COVID-19. As the Court of Appeals has stated, "the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release." United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). Moreover, as Plaintiff is not a federal prisoner, he must proceed under 28 U.S.C. § 2254, and therefore must exhaust all available state court remedies before proceeding to federal court. 28 U.S.C. § 2254(b)(1)(A). Plaintiff does not state that he has sought relief in the state courts and been denied. Therefore, a habeas corpus petition would fail for lack of exhaustion. See Clauso v. Warden, 2020 WL 2764774, at *2 (D.N.J. May 27, 2020).
Conversely, if Plaintiff wishes to challenge his conditions of confinement (for example, by contending that the prison is not providing adequate medical care), he could proceed under § 1983, but release from custody is not an available remedy, as explained above.
Therefore, Plaintiff's Complaint should be dismissed without prejudice to Plaintiff to submit either a habeas corpus petition under § 2254 or a civil rights complaint under § 1983 which seeks relief other than release from custody, if appropriate.
For these reasons, it is respectfully recommended that the Complaint be dismissed for failure to state a claim upon which relief could be granted.
If Plaintiff seeks to challenge this Report and Recommendation, he must seek review by a district judge by filing objections by July 30, 2020. Failure to file timely objections will waive the right of appeal.
Respectfully submitted,
s/Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge Dated: July 13, 2020 cc: MacKenneth Ortiz
NR-8123
SCI Pine Grove
191 Fyock Road
Indiana, PA 15701-6542