Opinion
20 Civ. 5318 (KMK)(PED)
04-22-2021
ROBERT TASHBOOK, Petitioner, v. WARDEN JAMES PETRUCCI, Respondent.
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
TO THE HONORABLE KENNETH M. KARAS, United States District Judge:
I. INTRODUCTION
On or about July 1, 2020, pro se petitioner Robert Tashbook filed the instant habeas petition seeking to be released “either from prison or from the restrictive conditions [he is] being housed under.” Dkt. #1. Petitioner, a federal inmate currently housed by the Federal Bureau of Prisons (“BOP”) at FCI Otisville, alleges he was placed in quarantine on June 16, 2020 based upon a suspicion that he had been exposed to Covid-19. Id. According to petitioner, he and his cellmate tested negative, and staff confirmed that no one in petitioner's housing unit or in his work crew tested positive for the virus. Id. Nonetheless, petitioner alleges, he remains in quarantine with no release date. Id. Petitioner asserts that the conditions on the quarantine unit are “akin to solitary confinement” in that he is denied access to educational, recreational and religious programming. Id. Petitioner also alleges that his job in food services was given to another inmate. Id.
Because petitioner is clearly challenging the manner in which his sentence is being executed (with respect to conditions of confinement) rather than his underlying conviction, his habeas petition is governed by 28 U.S.C. § 2241. See Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (“A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction.”). See also Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“This court has long interpreted § 2241 as applying to challenges to the execution of a federal sentence, “including such matters as the administration of parole, . . . prison disciplinary actions, prison transfers, type of detention and prison conditions.”) (citation omitted).
On September 9, 2020, respondent filed an opposition wherein he argues that the instant petition should be denied because: (1) petitioner has been released to the general population and, therefore, the petition is moot; and (2) petitioner failed to exhaust administrative remedies. Dkt. #12. This matter is before me pursuant to an Order of Reference dated July 27, 2020. Dkt. #6. For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.
II. MOOTNESS
“To satisfy the Constitution's case-or-controversy requirement, a party must, at each stage of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision.” Janakievski v. Exec. Dir., Rochester Psych. Ctr., 955 F.3d 314, 319 (2d Cir. 2020). “If, as a result of changed circumstances, a case that presented an actual redressable injury at the time it was filed ceases to involve such an injury, it ceases to fall within a federal court's Article III subject matter jurisdiction and must be dismissed for mootness.” Id.
Respondent asserts that petitioner was released from the Quarantine Unit on July 17, 2020 and, since then, has been housed in the general population. Dkt. #12, at 5. Thus, respondent contends, the instant petition is moot because petitioner is no longer subjected to the complained-of conditions on the Quarantine Unit. Id. at 6-7. In reply, petitioner argues that this Court should not dismiss his case as moot under two exceptions to mootness: (1) the “capable of repetition, yet evading review” exception, and (2) the voluntary cessation exception. Dkt. No. 19 at 3-7.
All citations to docket entries herein reflect ECF pagination.
As respondent notes, petitioner has not proffered any basis for his alternative request to be released from prison; he challenges only the conditions-not the fact-of his confinement.
A dispute qualifies for the “capable of repetition, yet evading review” exception only “if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1540, 200 L.Ed.2d 792 (2018) (quotation marks and citation omitted). With respect to the first prong, petitioner alleges that he was released from quarantine nine days after he filed the instant action. Dkt. #36 at 4. With respect to the second prong, petitioner asserts: (1) Assistant Warden for Operations (Ms. Elmore), in the presence of the Chief Psychologist (Dr. Davis), told petitioner he “was still subject to an extended stay in the Quarantine Unit at any time and for any reason”; (2) inmates and staff at FCI Otisville are still testing positive for Covid-19; and (3) as a result, petitioner is reasonably likely to be subjected to quarantine again. Id. at 6-7. Under the circumstances, in light of the ongoing Covid-19 pandemic, it appears reasonably likely that petitioner could again be quarantined and subsequently released therefrom-perhaps multiple times-without an opportunity to fully litigate his contention that the BOP's quarantine policy, on its face and/or as applied, is unconstitutional.
For the same reason, under the voluntary cessation exception, petitioner's release from quarantine does not moot his claim. “The voluntary cessation of allegedly illegal activities will usually render a case moot if the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 603 (2d Cir. 2016) (quotation marks and citation omitted). “A defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Id. at 603-04 (emphasis in original) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 190 (2000)). Here, defendant has not met his “formidable burden” of showing that it is “absolutely clear” that petitioner would not be subjected to Covid-19 quarantine again.
Accordingly, I conclude and respectfully recommend that petitioner's claim is not moot under either the “capable of repetition, yet evading review” exception or the voluntary cessation exception.
Petitioner also asserts that a live case-or-controversy exists because he continues to suffer collateral injuries (including the loss of his food service job). Dkt. #36, at 3. Respondent avers that petitioner did not lose his food service position, and proffers the Declaration of Robert Scheffler (Executive Assistant/Camp Administrator at FCI Otisville) in support of this assertion. Dkt. #12, at 5; Dkt. #14, ¶ 8. However, it is unnecessary to resolve this factual dispute for purposes of determining the mootness issue because petitioner's claim is ripe pursuant to the exceptions discussed above.
III. EXHAUSTION
A petitioner seeking relief pursuant to § 2241 must exhaust his or her administrative remedies. See Carmona, 243 F.3d at 634. “Although not required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), section 2241 exhaustion is the analogue of the exhaustion of state remedies requirement for a state prisoner seeking federal habeas review, and the results governing failure to take this path should be the same.” Goodall v. Von Blanckensee, No. 17 Civ. 3615, 2019 WL 8165002, at *4 (S.D.N.Y. July 19, 2019) (quotation marks and citations omitted), report and recommendation adopted, 2020 WL 1082565 (S.D.N.Y. Mar. 5, 2020).Accordingly, federal inmates who seek to challenge the conditions of their confinement must first utilize the BOP's Administrative Remedy Program (“the Program”). See Chi v. Fernandez, No. 18 Civ. 1212, 2019 WL 6894837, at *5 (N.D.N.Y. Dec. 18, 2019); see also Rosenthal v. Killian, 667 F.Supp.2d 364, 366 (S.D.N.Y. 2009) (citing 28 C.F.R. §§ 542.10-542.19). Exhaustion requires completion of the Program's four steps. See Rosenthal, 667 F.Supp.2d at 366. First, the inmate must attempt to informally resolve the issue by raising it with prison staff. 28 C, F, R, § 542.13(a). Second, if the issue is not resolved informally, the inmate must submit “a formal written Administrative Remedy Request on the appropriate form (BP-9)” to the designated staff member at the facility. Id. § 542.14(a). Third, if the formal request is denied by the Warden, the inmate must appeal to the appropriate BOP Regional Director. Id. § 542.15(a). Fourth, the inmate must appeal an unfavorable decision at the regional level to the BOP's General Counsel. Id.
Copies of all unpublished cases available only in electronic form cited in this Report and Recommendation have been mailed to petitioner. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
“When . . . legitimate circumstances beyond the prisoner's control preclude him from fully pursuing his administrative remedies, ” failure to exhaust may be excused by a showing of “cause and prejudice.” Carmona, 243 F.3d at 634. “Generally, cause can be shown when: (1) ‘available remedies provide no genuine opportunity for adequate relief'; (2) ‘irreparable injury may occur without immediate judicial relief'; (3) ‘administrative appeal would be futile'; and (4) ‘in certain instances a plaintiff has raised a substantial constitutional question.'” Hodge v. United States (BOP), No. 20 Civ. 10474, 2021 WL 738707, at *3 (S.D.N.Y. Feb. 24, 2021) (quoting Guitard v. U.S. Sec'y of Navy, 967 F.2d 737, 741 (2d Cir. 1992)).
Here, respondent contends that the instant petition should be dismissed on the ground that petitioner failed to exhaust his administrative remedies. Dkt. #12, at 5-6. Petitioner admits that he did not fully exhaust via the Program, but argues: (1) the exhaustion requirement has been waived in Covid-19 cases because of the irreparable harm which may occur absent immediate judicial relief; (2) administrative appeal would be futile; and (3) administrative remedies were unavailable. Dkt. #36, at 7-9.
As to petitioner's allegation of irreparable harm, “[w]here a delay poses a serious threat to the inmate's health and safety, the court may waive the exhaustion requirement.” Dov v. Bureau of Prisons, No. 20 Civ. 4343, 2020 WL 3869107, at *5 (S.D.N.Y. July 9, 2020). Indeed, as petitioner suggests, at least one court has excused prisoners from exhausting § 2241 claims alleging that the fact of their confinement in prison during the Covid-19 pandemic amounts to an Eighth Amendment violation because their medical histories place them in grave danger. See Martinez-Brooks v. Easter, 459 F.Supp.3d 411, 433-34, 437-38 (D. Conn. 2020). Here, however, as stated above, petitioner challenges only the conditions-not the fact-of his confinement. He complains that he was unjustifiably confined to the quarantine unit, where he was denied access to educational, recreational and religious programs, and that he lost his food services position as a result of his time in quarantine. More to the point, petitioner does not allege that the fact of his confinement violates his constitutional rights because the current health conditions at the facility expose him to a high risk of contracting Covid-19. In other words, petitioner does not demonstrate that he would likely suffer irreparable harm (i.e. a serious threat to his health and safety) if he were required to exhaust his administrative remedies before seeking relief in this Court.
Petitioner also alleges that administrative appeal would be futile because: (1) when he entered quarantine on June 23rd, he met with Warden Petrucci who promised petitioner that he would be released by June 29th; (2) on June 29th, during a suicide risk assessment, administrators (including Mr. Schreffler) assured petitioner that he would promptly be retested and released upon confirmation of a negative test - certainly no later than July 6th; and (3) despite representations to the contrary, petitioner was not released at the time he filed the instant action on July 1st. Dkt. #36, at 8. Thus, petitioner argues: “It would be absurd to suggest that I needed to file a BP-9 appeal to the Warden through Admin. Remedy Coordinator Mr. Schreffler when they were the people who reneged on their promises.” Id. To be sure, petitioner's conversation with the Warden constituted fulfillment of the Program's step one requirement (an attempt at informal resolution). However, petitioner proffers no evidence that the Warden was aware that petitioner had not been released on June 29th. Thus, a formal written appeal to the Warden (as required at the Program's step two) would have given him an opportunity to rectify the situation. Nonetheless, petitioner argues that he had no obligation to file a step two formal written appeal because the Warden granted him relief at step one but reneged on his promise. Dkt. #36, at 7-8. Petitioner is correct, to a point: “Where prison regulations fail to provide a remedy for implementation failures, prisoners who receive a favorable outcome to their initial grievance that remains unimplemented have fully exhausted their available remedies.” Dickinson v. York, 828 Fed.Appx. 780, 784 (2d Cir. 2020) (quoting Ruggiero v. County of Orange, 467 F.3d 170, 176 (2d Cir. 2006)). However, there is a reasonable likelihood that petitioner will again be quarantined pursuant to Covid-19 protocols at FCI Otisville. And it is for this reason that petitioner's claim is not moot. Yet, petitioner never challenged FCI Otisville's quarantine policy and protocols via the BOP's Program. In other words, a formal grievance would have allowed prison officials to reconsider their Covid-19 quarantine policy. Thus, plaintiff did have available administrative remedies and was required to exhaust them. See Ruggiero, 467 F.3d at 177.
Finally, petitioner argues that administrative remedies were unavailable because prison staff acknowledged his request for grievance forms but failed to provide them. However, “a denial of grievance forms does not, in itself, make administrative remedies unavailable.” Gottesfeld v. Anderson, No. 18 Civ. 10836, 2020 WL 1082590, at *8 (S.D.N.Y. Mar. 6, 2020) (quotation marks and citation omitted). More specifically, “ [a] correctional facility's failure to make grievance forms available does not relieve a prisoner from the obligation to undertake reasonable efforts to properly exhaust.” Id. (quotation marks and citation omitted); cf. Cruz v. Lee, No. 14 Civ. 4870, 2016 WL 1060330, at *5 (S.D.N.Y. Mar. 15, 2016) (failure to exhaust was excused where plaintiff had been denied access to grievance procedures but made reasonable efforts to exhaust by writing a letter to his counselor, speaking to a mental health professional and writing to the Superintendent); O'Connor v. Featherston, No. 01 Civ. 3251, 2002 WL 818085, at *2-3 (S.D.N.Y. Apr. 29, 2002) (reasonable attempt to exhaust found where plaintiff, whose requests for forms had been denied, wrote letters, filed and appealed a FOIA request and made several other inquiries). Here, petitioner proffers no evidence that he undertook “reasonable efforts” to administratively grieve his claim. Therefore, his “failure to exhaust cannot be excused on the basis that remedies were unavailable to him.” Evans v. Aramark Food, No. 14 Civ. 6469, 2016 WL 1746060, at *3 (S.D.N.Y. Apr. 28, 2016).
Accordingly, I conclude and respectfully recommend that petitioner failed to exhaust his administrative remedies.
IV. CONCLUSION
For the reasons set forth above, I conclude-and respectfully recommend that Your Honor should conclude-that the instant petition for a writ of habeas corpus should be denied in its entirety. Further, because the Petition was brought under 28 U.S.C. § 2241, a certificate of appealability is not required for petitioner to appeal the denial of his Petition. See Drax v. Reno, 338 F.3d 98, 106 n.12 (2d Cir. 2003) (holding that the Antiterrorism and Effective Death Penalty Act's certificate of appealability requirement does not apply to § 2241 petitions). However, to the extent one is required, I recommend that no certificate of appealability be issued because reasonable jurists would not find it debatable that petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kenneth M. Karas at the Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Karas.