Opinion
CIVIL DOCKET NO. 1:19-CV-1026-P
06-02-2020
DAVID RICE, Petitioner v. USA, ET AL., Respondents
JUDGE DRELL
MEMORANDUM ORDER
Before the Court is an untitled letter/motion (ECF No. 16) filed by pro se Petitioner David Rice ("Rice") (#50259-177). Rice is an inmate in the custody of the Federal Bureau of Prisons ("BOP") incarcerated at the Federal Correctional Institution in Pollock, Louisiana ("FCI-Pollock"). Because Rice requests expedited consideration of his habeas Petition (ECF No. 1), the Court construes Rice's letter as a Motion to Expedite.
Rice has not established that he is entitled to expedited consideration of his Petition (ECF No. 1), so his Motion (ECF No. 16) is DENIED.
I. Background
Rice filed a § 2241 Petition challenging his conviction under 28 U.S.C. § 924(c)(1)(A)(iii). ECF No. 1. Respondents filed a Motion to Dismiss, which is pending. ECF No. 12.
Rice recently filed a one-paragraph letter, seeking immediate consideration of his § 2241 Petition based on the outbreak of COVID-19. ECF No. 16. Rice argues that if the Court simply "signs off" on his § 2241 Petition, he will be immediately released. Id.
II. Law and Analysis
The United States Court of Appeals for the Fifth Circuit has stated that "COVID-19 poses risks of harm to all Americans." Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *5 (5th Cir. Apr. 22, 2020). At present, COVID-19 remains medically "incurable" in the sense that "[t]here are no drugs or other therapeutics . . . approved by the . . . [(FDA)] to prevent or treat COVID-19." COVID-19 appears to be highly infectious and transmissible, particularly where people are in close physical proximity with one another.
See CDC Information for Clinicians on Investigational Therapeutics for Patients with COVID-19 , https://www.cdc.gov/coronavirus/2019-ncov/hcp/therapeutic-options.html (last visited June 1, 2020).
See How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019-Basics (last visited June 1, 2020).
Significantly, "older adults [age 65 and older] and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19." Underlying medical conditions may include: (1) chronic lung disease; (2) moderate to severe asthma; (3) serious heart conditions; (4) immunocompromising conditions, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; (5) severe obesity; (6) diabetes; (7) chronic kidney disease undergoing dialysis; and (8) liver disease.
People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited June 1, 2020).
See id.
Rice does not allege there are any cases of COVID-19 at FCI-Pollock, and the BOP has reported no cases at that facility. The Court recognizes the risk to all prisoners posed by COVID-19.
https://www.bop.gov/coronavirus/ (last visited June 1, 2020).
But a petitioner's claims must be distinct in some respect. See Martinez Franco v. Jennings, No. 20-CV-02474-CRB, 2020 WL 1976423, at *3 (N.D. Cal. Apr. 24, 2020) ("Franco does not identify, and the Court has not seen, a case finding that increased likelihood of contracting the virus rendered unconstitutional the detention of a person without underlying medical conditions or some other vulnerability."). The Fifth Circuit has explained that "[t]he 'incidence of diseases or infections, standing alone,' do not 'imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks.'" Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *3 (5th Cir. Apr. 22, 2020) (quoting Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009)). This Court has already concluded the same: "[P]risoners are not entitled to release or transfer based solely on generalized COVID-19 fears and speculation." Riggs v. Louisiana, No. CV 3:20- 0495, 2020 WL 1939168, at *2 (W.D. La. Apr. 22, 2020). Otherwise, the claims of any prisoner or detainee would be equally meritorious - or equally meritless - notwithstanding their individual situations. That result would be untenable.
And so have many others. See, e.g., United States v. Clark, No. CR 17-85-SDD-RLB, 2020 WL 1557397, at *4 (M.D. La. Apr. 1, 2020) ("Defendant cites no authority for the proposition that the fear of contracting a communicable disease warrants a sentence modification."); Saillant v. Hoover, et al., No. 1:20-CV-00609, 2020 WL 1891854, at *5 (M.D. Pa. Apr. 16, 2020) (denying habeas relief in part because the petitioner sought habeas corpus relief merely because he was "detained and subjected to a generalized risk of contracting COVID-19").
Courts have created non-exhaustive lists of factors that may be considered in determining whether to grant habeas relief based on COVID-19 concerns. See Saillant, 2020 WL 1891854, at *4; Vazquez Barrera, 2020 WL 1904497, at *6. And this Court recently compiled a number of factors in determining whether to grant habeas release to ICE detainees. See Dada, et al. v. Witte, et al., 1:20-CV-458, ECF No. 17 at 22-23. Specifically, the Court considered:
(1) whether the petitioner has been diagnosed with COVID-19 or is experiencing symptoms consistent with the disease;See id.
(2) whether the petitioner is among the group of individuals that is at higher risk of contracting COVID-19 as identified by the CDC, due to the petitioner's age or an underlying health condition;
(3) whether the petitioner has been, or has likely been, directly exposed to COVID-19;
(4) the physical space in which the petitioner is detained, and how that physical space affects his risk of contracting COVID-19;
(5) the efforts that detention facility officials have made to prevent or mitigate the spread of, or harm caused by, COVID-19;
(6) any danger to the community, or to the petitioner's immigration proceedings, that may be posed by the petitioner's release; and
(7) any other relevant factors.
Although these factors were compiled to determine whether a detainee should be released due to COVID-19 concerns, some of the factors are relevant to—and should serve as guidance in—determining whether to give one petitioner's habeas claims speedier consideration than another's.
Rice has not been diagnosed with COVID-19 and has not reported any symptoms of the virus. Rice has not alleged that his risk of contracting COVID-19—or his risk of suffering complications from COVID-19, if contracted—is greater than any other prisoner at FCI-Pollock or at any other federal detention center. Rice merely claims that all prisoners face some risk.
Because Rice alleges no underlying health conditions that place him at a higher risk than any other federal petitioner for contracting or suffering complications from COVID-19, there is no basis to expedite consideration of Rice's § 2241 Petition.
III. Conclusion
Because Rice does not identify a particular vulnerability that puts him at greater risk than any other habeas petitioner, IT IS HEREBY ORDERED that the Motion to Expedite (ECF No. 16) consideration of the § 2241 Petition is DENIED.
THUS DONE AND SIGNED in Alexandria, Louisiana, on this 2nd day of June 2020.
/s/_________
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE