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holding that the Court did not have jurisdiction to grant the furlough for medical treatment
Summary of this case from U.S. v. CarnegliaOpinion
02-CR-140 (ILG).
March 12, 2002
Paul Weinstein, Esq., Paul Schoeman, Esq., Daniel Dorsky, Esq., Assistant U.S. Attorneys.
Gary Greenwald, Esq., Chester, New York.
MEMORANDUM AND ORDER
A superseding indictment was filed on February 16 2002, in which this defendant was named together with seven others. He was charged in Count One with Racketeering (RICO) in violation of 18 U.S.C. § 1962(c); in Count Two with Racketeering Conspiracy in violation of 18 U.S.C. § 1962(d); in Count Three with Extortion Conspiracy in violation of 18 U.S.C. § 1951; in Count Four with Extortion in violation of 18 U.S.C. § 1951: in Counts Six and Seven with Obstruction of Justice in violation of 18 U.S.C. § 1512(b)(1) and 1503 respectively.
On February 15th, 2002, the defendant obtained an Order from this Court directing the "United States Attorney's Office for the Eastern District of New York to show cause... on [February 21st, 2002], . . . why an order should not be issued pursuant to 18 U.S.C. § 3622(a)(3), for the temporary release of the defendant, who is in the custody of the United States Marshals, to Lutheran Medical Center, located in Brooklyn, New York, for diagnostic cardiac testing and in the event that cardiac catheterization is found to be necessary, why the defendant should not immediately be transferred to Mount Sinai Hospital in New York for such testing and any surgical treatment deemed medically necessary, and why thereafter, the defendant should not be transferred to Lutheran Medical Center for the remainder of his incarceration." Annexed to his application for the Order to Show Cause, in addition to his attorney's affidavit, were affidavits from Dr. Bernard M. Wechsler, the defendant's treating cardiologist, reviewing the defendant's past cardiac history and his (Dr. Wechsler's) understanding of the defendant's current cardiac status based upon reports he reviewed regarding his condition prepared at the Federal Medical Center in which he has been confined following his sentence in another case on December 19, 1997.
At the hearing in response to that Order, the Court sua sponte raised the question as to its jurisdiction to grant the relief requested as well as the question as to whether the defendant was in the custody of the Bureau or Prisons or the United States Marshal. The Court also questioned the applicability of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). The Court denied the relief requested pending the determination of those questions.
In the interim, and unbeknownst to the Court, on February 21st, 2002, the defendant was removed to the Westchester Medical Center in Valhalla, New York for testing, and returned to the Metropolitan Detention Center in Brooklyn, New York on March F, 2002. Reports of the tests conducted there were subsequently received and at a telephone conference on March 1st, 2002, the government advised that it retained its own cardiologist to review that report and the medical data submitted by the defendant and awaited his opinion of the defendant's current medical status. On that day, too, the Court received a facsimile copy of the defendant's Memorandum of Law in response to the Court's inquiry regarding jurisdiction and the applicability of the PLRA.
Before addressing the issues thus far raised by the Order to Show Cause and its aftermath, the background leading up to this indictment and the Order to Show Cause is of more than passing relevance.
I. Background
On July 25, 1997, Vincent Gigante was convicted after a jury trial of five criminal charges. They included Racketeering, Racketeering Conspiracy, Extortion Conspiracy, labor payoff conspiracy and conspiracy to murder in aid of racketeering.
Preceding that trial were extensive hearings based upon Gigante's vigorous assertions that he was mentally incompetent to stand trial and too physically vulnerable because of his precarious medical condition to withstand the vigors of an extended trial. The Court ultimately determined that his mental incompetence was feigned and that he was physically capable of standing trial. Those determinations, familiarity with which is assumed, are to be found in United States v. Gigante, 925 F. Supp. 967 (E.D.N.Y. 1996); 1996 WL 497050 (E.D.N.Y. Aug. 28, 1996); 987 F. Supp. 143 (E.D.N.Y. 1997); 989 F. Supp. 436 (E.D.N Y 1998), aff'd, 166 F.3d 75 (2d Cir. 1999).
Following his conviction, Gigante moved pursuant to 18 U.S.C. § 4241 for an order that would declare him to be incompetent to be sentenced and commit him to the custody of the Attorney General for institutionalization and treatment in an appropriate facility. In an extensive opinion in which he reviewed the applicable principles of law, the testimony of eight expert witnesses for the defense, three expert witnesses for the government, the report of the doctors at the Federal Correctional Institution in Butner, North Carolina (to which Gigante had been remanded for mental health evaluation), and of two lay witnesses who were in daily intimate contact with Gigante at Butner, Judge Weinstein concluded that Gigante was "deliberately feigning mental illness to avoid the punishment which he fears" and that he was "competent to be sentenced and to serve an appropriate term in prison. United States v. Gigante, 996 F. Supp. 194, 238 (E.D.N.Y. 1998).
On January 5, 1998, Gigante was sentenced to a term of imprisonment for 12 years to be followed by five years supervised release, a fine of $1,250,000 and a special assessment of $250. Judge Weinstein recommended, in another opinion addressing the sentence he imposed, that Gigante be designated by the Bureau of Prisons to the Federal Correctional Facility in Butner, North Carolina, which was one of six Medical Referral Centers of the Bureau of Prisons. United States v. Gigante, 989 F. Supp. 436, 443 (E.D.N.Y. 1998).
When this indictment was returned, Gigante was detained in the Federal Medical Center in Fort Worth, Texas.
II. Jurisdiction
In his Memorandum of Law, the defendant contends that he is subject to the jurisdiction of the Court because "he was removed from the custody of the Bureau of Prisons, pursuant to a writ, and transported by the U.S. Marshal to the Metropolitan Detention Center, where he was housed." (Def. Mem. at 2.) The premise upon which that statement is made is that he was brought here from Texas pursuant to a writ of habeas corpus ad prosequendum. That writ is used to bring before the Court a prisoner who has been indicted from the place where he is detained. Given that premise, the defendant then relies upon the hoary case of Barth v. Clise, 79 U.S. 400 (1870). In that case, the plaintiff sued one Brinkman to recover a large sum of money owed by him. The Court granted the plaintiffs application to issue a writ ne exeat against Brinkman. The writ was given to the defendant Clise, the county sheriff. for execution. Clise then arrested Brinkrnan who was held in custody in lieu of posting bail. The Court ten issued a writ of habeas corpus, directed to the Sheriff, commanding him to bring Brinkman before the Court, which Clise did. During the argument on the writ, Clise put Brinkman in the charge of his lawyer and left. Before the argument was concluded Brinkrnan escaped. The judge refused to proceed in the absence of Brinkman and the proceeding was terminated. The plaintiff sued Clise for Brinkman' s escape and judgment was rendered for Clise. In affirming tat judgment the Supreme Court decided that upon the return of a writ ci habeas corpus the safekeeping of the prisoner is entirely under the control and direction of the Court to which the return is made. That interpretation of the habeas statute has been followed ever since. See, e.g., Rivera v. Santirocco, 814 F.2d 859, 862 (2d Cir. 1987. upon which the defendant also relies and, relying upon that interpretation and his underlying premise. concludes that his safekeeping is entirely under the control of the Court and thus empowers the Court to issue the Orders he seeks.
The writ ne exeat republica, no longer widely used. was a writ ordering the person to whom it is addressed not to leave the jurisdiction of the Court and was issued to insure the satisfaction of a claim against the defendant. BlacWs Law Dicionary 1054 (P ed. 1999).
His premise is flawed, and the conclusion based upon it is necessarily also flawed. To begin with, this Court never issued a writ of habeas corpus ad prosequendum, nor was such a writ necessary to have the defendant brought here from the Federal Medical Center in Texas. In In re Extradition of Michele Sindona, 584 F. Supp. 1437 (E.D.N.Y. 1984), this Court had occasion to consider in some detail "the course followed by Congress in granting judicial power to issue writs of habeas corpus in general and the writ of habeas corpus ad proseguendum in particular." It was clear that the writ was used to bring a defendant who was in the custody of another sovereign to trial before the Court that issued the writ. The cases upon which the defendant relies reflect that traditional use of the writ. The transfer of a defendant from one federal facility to another does not require the issuance of a writ ad prosequendum. As was the case in Sindona, the defendant was brought here pursuant to a request by the Assistant United States Attorney directed to the Warden of the Fort Worth federal correctional facility that he be produced in this district on February 6, 2002. A copy of that request is appended.
28 U.S.C. § 510 authorizes the Attorney General to delegate the performance of any of his functions to officers or employees of the Department of Justice.
The custody of Gigante, therefore, not being entirely in the control of the Court, in whose custody is he?
In his Order to Show Cause, the defendant assumes that he is in the custody of the United States Marshal. That assumption appears justified by 18 U.S.C. § 4086, which provides that "United States Marshals shall provide for the safekeeping of any person arrested, or held under authority of any enactment of Congress pending commitment to an institution." See also, to same effect, 28 C.F.R. § 0.111(k).
It must also be noted that 18 U.S.C. § 4042(a)(2) provides that "The Bureau of Prisons, under the direction of the Attorney General, shall provide . . . for the safekeeping, care and subsistence of all persons charged with or convicted of offenses against the United States or held as witnesses or otherwise." (emphases added).
A literal reading of those statutes would suggest that each is applicable to this defendant who is both a convicted prisoner within the meaning of § 4042 and a "person pending commitment to an institution" as a defendant currently under indictment within the meaning of § 4086.
Resort to the Code of Federal Regulations provides guidance to the reconcihation of those statutes. 28 C.F.R. § 551.101 captioned "Definitions" provides:
(a) Pretrial inmate. For purpose of this rule, "pretrial inmate" means a person who is legally detained but for whom the Bureau of Prisons has not received notification of conviction. Thus, "pretrial inmate" ordinarily includes a person awaiting trial, being tried, or awaiting a verdict.
Gigante is a "pretrial inmate" as a defendant named in the pending indictment and would thus be in the "safekeeping" of the United States Marshal pursuant to § 4086. 28 C.F.R. § 551.101(a)(3) and (b). however, provide:
(3) Concurrent federal and state sentences. For purpose of this rule, an inmate in a status described in paragraph (a) ... of this section and who is at the same time serving a state or federal sentence is not considered a pretrial inmate.
(b) Convicted Inmate. For purposes of this rule, an individual a court has found guilty of an offense punishable by law.
Gigante is a convicted inmate serving a federal sentence and is, therefore, not a pretrial inmate. It follows then, that Gigante is in the custody of the Bureau of Prisons which is charged by § 4042(a)(2) with providing for his safekeeping and care as a person convicted of an offense or otherwise held.
A. 18 U.S.C. § 3622(a)(3)
As has been indicated above, the defendant's Order to Show Cause predicates the relief he seeks upon 18 U.S.C. § 3622(a)(3), which provides in relevant part:
The Bureau of Prisons may release a prisoner from the place of his imprisonment for a limited period if such release appears to be consistent with the purpose for which the sentence was imposed . . ., if such release otherwise appears to be consistent with the public interest and if there is reasonable cause to believe that a prisoner will honor the trust to be imposed in him, by authorizing him, under prescribed conditions, to ----
(a) visit a designated place for a period not to exceed thirty days, and then return to the same or another facility, for the purpose of —
* * *
(3) obtaining medical treatment not otherwise available,* * *
(emphases added).
Even a cursory reading of the statute readily reveals its inapplicability to this defendant. His request to be confined to Lutheran Medical Center "for the remainder of his incarceration" would exceed the thirty day limitation imposed by the statute. In addition, that portion of the statute which requires "reasonable cause to believe that a prisoner will honor the trust to be imposed in him" signals its inapplicability to this defendant as well, and is complemented by 28 C.F.R. Subpart C — Furloughs. § 570.30 et seq. 28 C.F.R. § 570.31 is captioned "Definitions" and in relevant part provides as follows:
(a) A furlough is an authorized absence from an institution by an inmate who is not under escort of a staff member, U.S. Marshal, or state or federal agents....
That Regulation thus explicates that segment of § 3622 requiring a reasonable belief that a prisoner "will honor the trust to be imposed in him." See also 28 C.F.R. § 570.36.
A furlough being unavailable to this defendant and 18 U.S.C. § 3622 being inapplicable, United States v. Premachandra, 78 F.3d 589 (Table), 1996 WL 102567. at *1 (8t Cir. Mar. 8, 1996) ("We agree with the district court that 18 U.S.C. § 3622 vests authority to grant medical furloughs with the Bureau of Prisons (BOP), not the federal courts."), the Regulation which is applicable is 28 C.F.R. § 570.41, Medical Escorted Trips:
(a) Medical escorted trips are intended to provide an inmate with medical treatment not available within the institution. There are two types of medical escorted trips.
(1) Emergency medical escorted trip —
An escorted trip occurring as the result of an unexpected life-threatening medical situation requiring immediate medical treatment not available at the institution. The required treatment may be on either an in-patient or out-patient basis.
(2) Non-emergency medical escorted trip —
A pre-planned escorted trip for the purpose of providing an inmate with medical treatment ordinarily not available at the institution. The required treatment may be on either an inpatient or out-patient basis.
(b) The Clinical Director or designee is responsible for determining whether a medical escorted trip is appropriate.
(c) Escorted trip procedures — out-patient medical treatment.
A recommendation for an inmate to receive a medical escorted trip is prepared by medical staff, forwarded through the appropriate staff for screening and clearance, and then submitted to the Warden for review. The Warden may approve an inmate for out-patient medical escorted trip.
(d) Escorted trip procedures — in-patient medical treatment.
A recommendation for an inmate to receive a medical escorted trip is prepared by medical staff, forwarded through the appropriate staff for screening and clearance, and then submitted to the Warden. The Warden may approve an inmate for an in-patient medical escorted trip.
A corollary to § 570.41 is § 570.44 which provides in substance that escorted inmates "will be within constant and immediate visual supervision of escorting staff at all times. Restraints may be applied . . . after considering te purpose of the escorted trip and the degree of supervision required by the inmate. Except for escorted trips for a medical emergency, an inmate going on an escorted trip must agree in writing to the conditions of the escorted trip."
The foregoing thus establishes, in this Court's view, that the defendant Gigante is in the custody, and under the control of the Bureau of Prisons (BOP) and not this Court and thus it is the BOP that is charged with providing for his safekeeping and care. 18 U.S.C. § 4042(a)(2), as supplemented by 28 C.F.R. § 570.41.
It is also clear that the Clinical Director of the BOP, or his designee, bears the responsibility for determining whether a medical escort trip is appropriate.
An exploration of the distinction to be drawn between "custody" and "in personam jurisdiction" and the purposes for which such a distinction may be significant need not be embarked upon. As the discussion that follows reveals, this Court does not, in any event, have subject-matter jurisdiction.
B. The Prisoner Litigation Reform Act (PLRA) 42 U.S.C. § 1997e
42 U.S.C. § 1997e captioned "Suits by Prisoners" provides as follows:
(a) Applicability of administrative remedies.
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.
(emphasis added). In two recent cases, Booth v. Churner, 121 S.Ct. 1819 (2001), and Porter v. Nussle, No. 00-853, 2002 WL 261683 (U.S. Feb. 26, 2002). the Supreme Court addressed the reach of that statute.
In Booth, an inmate of a Pennsylvania State Correctional Institution sued corrections officers at that institution pursuant to 42 U.S.C. § 1983, alleging that they violated his Eighth Amendment right to be free from cruel and unusual punishment by assaulting him, bruising his wrists with handcuffs, throwing cleaning material in his face and denying him medical attention. Booth failed to exhaust the administrative process provided by the Pennsylvania Department of Corrections, which led the district court to dismiss his complaint under § 1997e(a). The Court of Appeals for the Third Circuit affirmed. Booth contended that the statute was not applicable because the monetary relief he sought was not available through the administrative process. In affirming the judgment of the Court of Appeals, the Supreme Court held that "we think that Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures. Cf. McCarthy, supra, at 144, 112 S.Ct. 1081 ("Where Congress specifically mandates, exhaustion is required.")." 121 S.Ct. at 1825.
Approximately nine months later, Porter v. Nussle was decided. Nussle, a Connecticut State prisoner, without filing an inmate grievance, began an action against corrections officers who, he claimed, severely beat him in violation of his Eighth Amendment right to be free from cruel and inhuman treatment. The Court of Appeals for the Second Circuit in Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), reversed the district court's dismissal on exhaustion grounds, holding that § 1997e(a) applies only to conditions affecting prisoners generally and not single incidents that affect only particular prisoners. The Supreme Court reversed, deciding that "[tihe current exhaustion provision differs markedly from its predecessor. Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory. . . . All 'available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 'plain, speedy and effective.' . . . Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a pre-requisite to suit. . . . And unlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all 'action[s] . . . brought with respect to prison conditions' whether under § 1983 or 'any other Federal law.'" 2002 WL 261683, at *6. The Court concluded by holding "that the PLEA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force orsomeotherwrong." Id. at *10.
The Court also had occasion to observe that "[tihe PLEA exhaustion provision is captioned 'Suits by prisoners,' see § 1997e; this unqualified heading scarcely aids the argument that Congress meant to bi[-]sect the universe of prisoner suits." 2002 WL 261683, at *7. Then, quoting Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998), the Court added "[t]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute." This Court is driven to conclude that § 1997e(a) is plainly applicable, and the Order the defendant seeks must be denied him pending the exhaustion of administrative remedies.
The defendant, in a letter response dated March 1, 2002, addressed to the Courfs question regarding the applicability of the PLRA, writes that "[i]t is my view that this case [Porter v. Nussle] does not apply to Mr. Gigante's situation because he has not initiated an action for violation of his rights. . . . Since Mr. Gigante is not seeking to institute a civil suit he is not required to seek an administrative remedy, and therefore. that statute does no: apply." His view of this judicial proceeding he instituted with his Order to Show Cause is disingenuous, to say the least. If he is not claiming a "right" to receive a level of medical care to which he believes he is entitled and that the Bureau of Prisons is obliged to provide. precisely what, and against whom, is his grievance? If, indeed, he is not claiming "a violation of his rights," precisely what is he seeking to vindicate and upon what authority does he ask the Court to vindicate it? If taken at his word that he is not claiming a "violation of his rights," then it would follow that he is asking the Court to micro-manage the Bureau of Prisons by way of an Order the Court has no authority to issue.
The disingenuousness of his view is made explicitly manifest by his Memorandum of Law in Support of his Order to Show Cause. On page one of that Memorandum he argues: "It is submitted that the failure to transfer Mr. Gigante to a hospital, and keep him at the Metropolitan Detention Center, would constitute a violation of his Eighth Amendment rights under the United States Constitution." He continues on page two with a citation to Estelle v. Gamble, 429 U.S. 97, 104 (1976), from which he quotes that the "deliberate indifference to serious medical needs of prisoners constitutes "unnecessary and wanton infliction of pain' prescribed by the Eighth Amendment."
That he has instituted a suit by a prisoner specifically aimed at by 42 U.S.C. § 1997e(a) can hardly be denied.
C. The All Writs Act — 28 U.S.C. § 1651
In an effort to assuage the Court's doubt as to its power to issue the Order he seeks, the defendant invokes the All Writs Act, 28 U.S.C. § 1651, which provides in pertiment part that:
The Supreme Court and all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
The teaching of Pennsylvania Bureau of Corrections v. United States Marshal Service, 474 U.S. 34, 43 (1985), confirms that the All Writs Act is inappropriately invoked here:
The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvement or less appropriate.
Suffice it to say that 42 U.S.C. § 1997e(a) specifically addressed the particular issue at hand, and it is that statute, and not the All Writs Act that is controlling.
For all of the reasons discussed above, the Order the defendant seeks will not issue. The denial of the Order sought is deemed to be compelled by the PLEA and is not a reflection of the Court's insensitivity or indifference to the need for relief any defendant in the custody of the Bureau of Prisons may appropriately require. It will be assumed that such relief will be provided by the BOP whenever an objective evaluation of the relevant data dictates the necessity for it.
SO ORDERED.