Livas v. Myers

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

BRANDON LIVAS, ET AL. CIVIL ACTION NO. 2:20-CV-00422

VERSUS JUDGE TERRY A. DOUGHTY

RODNEY MYERS, ET AL. MAG. JUDGE KATHLEEN KAY

RULING

Petitioners Brandon Livas, Richard Buswell, Dewayne Corbett, Johnny Smith, Carlos

Martin, and Gaines Andrews have filed a Petition for Writ of Habeas Corpus, Injunctive, and

Declaratory Relief against Respondents Rodney Myers (“Warden Myers”), Warden of Oakdale

Federal Correctional Institutions, and Michael Carvajal (“Director Carvajal”), Federal Bureau

of Prisons Director, in their official capacities, pursuant to 28 U.S.C. § 2241. Petitioners, acting

on behalf of themselves and a prospective class and sub-class have since filed an Emergency

Motion for Release of Vulnerable and Low-Risk Prisoners from Oakdale (“Emergency Motion”)

[Doc. No. 9].

On April 15, 2020, in addition to filing a memorandum in opposition to this Emergency

Motion [Doc. No. 13], Respondents filed a Motion to Dismiss [Doc. No. 12]. Respondents move

the Court to dismiss Petitioners’ Petition for Writ of Habeas Corpus, Injunctive, and Declaratory

Relief and Petitioners’ Emergency Motion on two alternative bases: (1) lack of subject-matter

jurisdiction and (2) failure to state a claim as a matter of law.

Because of the expedited nature of the relief sought by Petitioners, on April 16, 2020, the

Court held a status conference with counsel. At that time, the Court ordered Petitioners to

respond to the first basis for the motion, subject-matter jurisdiction, no later than Monday, April

20, 2020.1 Respondents were ordered to file a reply by Tuesday, April 21, 2020.

For the following reasons, Respondents’ Motion to Dismiss is GRANTED IN PART and

DENIED IN PART AS MOOT.

I. BACKGROUND

Three months ago, most people had never heard of COVID-19 or the coronavirus. As of

the date of this Ruling, however, it would be difficult to imagine any person in the United

States—or indeed globally--who has not felt the effects of the global pandemic caused by the

rapid spread of this previously unheard of virus.

COVID-19 is an infectious disease caused by this novel coronavirus. The coronavirus

outbreak, which began in Wuhan, China, and was first confirmed in December 2019, has

expanded globally at an alarming rate. See https://www.nytimes.com/article/coronavirus-

timeline.html (last visited 04/22/2020). According to the Centers for Disease Control (“CDC”),

the “wide range” of symptoms may include fever, cough, shortness of breath or difficulty

breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss

of taste or smell. https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html

(last visited 04/21/2020).

Most people infected with the COVID-19 virus will experience mild to moderate

respiratory illness and recover without requiring special treatment. In some cases,

however, COVID-19 causes severe respiratory issues. Because COVID-19 is a new

disease, there is limited information regarding risk factors for severe disease. At this

1 “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the

court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the

merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

time, based on the available information and clinical expertise, the CDC has issued

guidance that older adults, 65 years of age and older, and people of any age who have

serious underlying medical conditions might be at higher risk for severe illness from

COVID-19. The CDC cautions that persons with these underlying medical conditions,

particularly if not well controlled, are at higher risk:

(1) chronic lung disease or moderate to severe asthma;

(2) serious heart conditions;

(3) the immunocompromised, which can be caused by many 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;

(4) severe obesity (body mass index of 40 or higher)

(5) diabetes;

(6) chronic kidney disease undergoing dialysis;

(7) liver disease.

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html

(last visited 04/21/2020).

Currently, there are no vaccines or proven, effective treatments for COVID-19. The

virus spreads primarily through droplets of saliva or discharge from the nose when an infected

person coughs or sneezes, although there is evidence that persons who are asymptomatic may

infect others. To mitigate the spread of the disease, the CDC and other public health agencies

have recommended social distancing, a requirement that persons remain at least six feet from

each other, to employ good hygiene practices, and to avoid touching your eyes, nose, and mouth

with unwashed hands. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/prevention.html (last visited 04/21/2020).

In the period between January 21, 2020, when the first COVID-19 case was officially

diagnosed in the United States2 and April 21, 2020, there have been 802,583 cases and

44,575 deaths.3 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html

(last visited 04/22/2020).

In Louisiana, as in many states, Governor John Bel Edwards has issued a stay-at-

home order, in an effort to “flatten the curve,” i.e., to prevent the number of cases from

overwhelming the health care systems. There have been 22,258 reported cases in Louisiana and

1,473 deaths. http://ldh.la.gov/Coronavirus/ (last visited 04/22/2020). Among those deaths are

seven (7) prisoners who were housed at the Oakdale correctional facilities.

https://www.kplctv.com/2020/04/16/seventh-inmate-oakdale-federal-prison-dies-coronavirus/.

II. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

Petitioners, represented by attorneys for the American Civil Liberties Union (“ACLU”),

filed the instant lawsuit on April 6, 2020. [Doc. No. 1]. Petitioners seek to represent themselves

and members of a class, comprised of persons presently and in the future residing at Federal

2 https://abcnews.go.com/Health/timeline-coronavirus-started/story?id=69435165 (last

visited 04/21/2020).

3 As the CDC acknowledges, the exact number of COVID-19 illnesses, hospitalizations,

and deaths are unknown, for a variety of reasons, including the fact that some persons have either

been asymptomatic or had only mild illness, there are delays in reporting and testing, not

everyone who is infected gets tested or seeks medical care, and there may be differences in how

states and territories confirm numbers in their jurisdictions. Id.

Correctional Institute (“FCI”) Oakdale I and FCI Oakdale II, which includes the Camp

(collectively “Oakdale”).4

Petitioners assert that they “bring this putative class action pursuant to 28 U.S.C. § 2241

for relief from detention that violates their Eighth Amendment rights under the U.S.

Constitution” and that the “Court has subject matter jurisdiction over these claims pursuant to 28

U.S.C. § 2241 (habeas corpus), 28 U.S.C. § 1651 (All Writs Act), Article I, § 9, cl. 2 of the U.S.

Constitution (Suspension Clause), and 28 U.S.C. § 1331 (federal question jurisdiction).” [Doc.

No. 1, ¶¶ 12-13].

Petitioner Brandon Livas, BOP No. Register 37736034, is detained in the satellite camp

at Oakdale (FCI Oakdale II). He alleges as follows:

He is 35 years old. He is diabetic and suffers from acute pancreatitis. He has no

access to hot water and soap, and he cannot practice social distancing—he lives in

a dorm-style barracks with a bed that is less than three feet away from his nearest

neighbor. As part of his job duties at Oakdale, he is expected to clean about six

prison offices. He is serving a 15-month sentence for fraud that began on

December 2, 2019. He is a first-time, nonviolent offender.

[Doc. No. 1, ¶ 15].

Petitioner Richard Joseph Buswell, BOP Register No. 15618035, is detained at Oakdale

(FCI Oakdale II). He alleges as follows:

He is 51 years old. He has access to communal bars of soap that are filthy; they

are shared by about 125 people at four sinks; those 125 people share six showers

and eight filthy toilets. He suffers from asthma, hypertension, and sleep apnea; he

sleeps with a CPAP device. He is serving a 10-year sentence for conspiracy to

commit securities fraud and an 8-year concurrent sentence for distribution of

synthetic marijuana.

4 FCI Oakdale I has a population of approximately 917. FCI Oakdale II has a population

of approximately 900, including 760 at the prison and 140 at the camp. See

https://www.bop.gov/locations/institutions/oak/; https://www.bop.gov/locations/institutions/oad/.

[Doc. No. 1, ¶ 16].

Petitioner Johnny Smith, BOP Register No. 33172034, is detained at Oakdale (FCI

Oakdale I). He alleges as follows:

He is 49 years old and suffers from hypertension and a thyroid condition.

[Doc. No. 1, ¶ 17].

Petitioner Carlos Lorenzo Martin, BOP Register No. 15029043, is detained at Oakdale

(FCI Oakdale II). He alleges as follows:

He is 35 years old and has compromised lungs due to childhood asthma. He is

housed in a room which sleeps 72 prisoners in bunks arranged in rows, such that

when he sleeps he can reach out and touch the person next to him on either side.

He was convicted of a drug charge and is slated for release in eight months.

[Doc. No. 1, ¶ 18].

Petitioner Dewayne Corbett, BOP Register No. 21703171, is detained at Oakdale (FCI

Oakdale I). He alleges as follows:

He is 58 years old and in chronic care. He has a respiratory disorder involving a

9 4-by-5-millimeter nodule on his lung and is awaiting a CT scan, so he feels he

needs to socially distance but cannot.

[Doc. No. 1, ¶ 19].

Petitioner Gaines Andrews, BOP No. Register 44677379, is detained in the satellite camp

at Oakdale (FCI Oakdale II). He alleges as follows:

He is 39 years old and suffers from asthma. He is the head of maintenance and

frequently makes deliveries to FCI Oakdale I. As part of his job duties at Oakdale,

he is helping construct tent camps in the prison recreation yard along with bunk

houses and showers for prison staff. He pleaded guilty to a single count of

conspiracy to distribute methamphetamine and received a 10-year sentence; he is

scheduled for release on October 28, 2022.

[Doc. No. 1, ¶ 20].

Petitioners allege that all inmates at Oakdale face “a particularly acute threat of illness,

permanent injury, and death.” [Doc. No. 1, ¶ 33]. This is so because it is “virtually impossible

for people who are confined in prisons, jails, and detention centers to engage in the necessary

social distancing and hygiene required to mitigate the risk of transmission.” Id.at ¶ 35.

Petitioners further allege that Respondents’ action or inaction in failing to comply with public

health guidelines of social distancing and personal hygiene, and treating or preventing outbreaks

and deaths related to COVID-19 violate their right to treatment and adequate medical care, and

therefore constitute cruel and unusual punishment. Id. at ¶¶ 75-77.

Accordingly, Petitioners “seek to represent a class of all current and future people in

post-conviction custody at Oakdale (‘Class’), including a subclass of persons who, by reason of

age or medical condition, are particularly vulnerable to injury or death if they were to

contract COVID-19 (‘Medically-Vulnerable Subclass’).” [Doc. No. 1, ¶ 57]. Petitioners

contend that the “‘Medically-Vulnerable’ Subclass is defined as all current and future persons

incarcerated at Oakdale over the age of 50, as well as all current and future persons incarcerated

at Oakdale of any age who experience: chronic lung disease or moderate to severe asthma;

serious heart conditions; conditions that can cause a person to be immunocompromised,

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; severe obesity (defined as a body mass index of 40 or higher);

diabetes; chronic kidney disease or undergoing dialysis; or liver disease.”5 [Doc. No. 1, ¶ 58].

Petitioners contends that they can represent the class because they are “currently housed at

5Petitioners allege that there are approximately 748 inmates in the proposed Medically-

Vulnerable Subclass.

Oakdale” and can represent the subclass “because each Petitioner is over the age of 50 and/or

suffers from one of the conditions listed in the definition of the Subclass above.” [Doc. No. 1, ¶

59].

In their Request for Relief, Petitioners request that the Court order the following:

1. Certification of this Petition as a Class Action;

2. A temporary restraining order, preliminary injunction, permanent injunction,

and/or writ of habeas corpus requiring Defendants to immediately release all

Medically-Vulnerable Subclass Members, with supports to ensure social

distancing and other expert-recommended measures to prevent the spread of

coronavirus;

3. Following immediate release of all Medically-Vulnerable Subclass Members,

a plan, to be immediately submitted to the Court and overseen by a qualified

public health expert pursuant to Fed. R. Evid. 706, which outlines:

i. Specific mitigation efforts, in line with CDC guidelines, to prevent, to

the degree possible, contraction of COVID-19 by all Class Members

not immediately released;

ii. A housing and/or public support plan for any released Class or

Subclass Members for whom testing confirms exposure to or infection

with COVID-19 and who do not readily have a place to self-isolate for

the CDC-recommended period of time (currently 14 days).

4. All further action required to release Class Members outside the Medically-

Vulnerable Subclass to ensure that all remaining persons are incarcerated in

Oakdale under conditions consistent with CDC guidance to prevent the spread

of COVID-19, including requiring that all persons be able to maintain six feet

or more of space between them;

5. If immediate release is not granted on the basis of this Petition alone, then

expedited review of the Petition, including oral argument, via telephonic or

videoconference if necessary6;

6. A declaration that Oakdale’s policies violate the Eighth Amendment right

against cruel and unusual punishment with respect to the Class; and

7. Any further relief this Court deems appropriate.

6To this extent, the Court has already undertaken expedited review.

[Doc. No. 1, ¶ 79].

Respondents move to dismiss the Complaint for lack of subject-matter jurisdiction. They

argue that the Complaint should be dismissed as Petitioners have failed to establish a

jurisdictional basis for the Court to hear this matter. They further argue that the Court is barred

from reviewing Respondents’ decisions regarding classification and placement of inmates.

Further, Petitioners are unable to establish the court’s jurisdiction under either the All

Writs Act, the Suspension Clause, or the general federal question statute.

Petitioners respond that the Court has jurisdiction under 28 U.S.C. §2241, the proper

vehicle for their claims, and that Respondents are not entitled to sovereign immunity.

The arguments on subject-matter jurisdiction are fully briefed.7

III. LAW AND ANALYSIS

A. Standard of Review

“Federal courts must resolve questions of jurisdiction before proceeding to the merits.”

Ashford v. United States, 463 F. App'x 387, 391-92 (5th Cir. 2012) (citing Steel Co. v. Citizens

for a Better Env't, 523 U.S. 83, 101 (1998); USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274,

283 & n.6 (5th Cir. 2011), and Jasper v. FEMA, 414 F. App'x 649, 651 (5th Cir. 2011)). “It is

incumbent on all federal courts to dismiss an action whenever it appears that subject matter

jurisdiction is lacking. This is the first principle of federal jurisdiction.” Stockman v. FEC, 138

F.3d 144, 151 (5th Cir. 1998) (quotation and citation omitted). “The burden of proof for a Rule

12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff

7 Although Respondents also argue that the Complaint fails to state a claim for relief, the

Court has limited briefing to the jurisdiction question.

constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001)(citations omitted).

B. Jurisdiction

Respondents make a facial attack on the sufficiency of the Petitioners’ allegations to

support subject-matter jurisdiction in this case. Thus, the Court accepts those allegations as true

for purposes of this Ruling and considers whether jurisdiction exists.8

In their Complaint, Petitioners assert that this Court has subject-matter jurisdiction over

their claims as a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241; the All Writs

Act, 28 U.S.C. § 1651; the Suspension Clause in Article I, § 9, cl. 2 of the United States

Constitution; and 28 U.S.C. §1331, the general jurisdictional statute. Respondents have

presented arguments as to why the Court lacks subject-matter jurisdiction under each of these

bases. However, in their opposition memorandum, Petitioners concede that “the All Writs Act

and Suspension Clause . . . do not independently grant this Court jurisdiction to hear Petitioners’

claims.”9 [Doc. No. 19, p. 6 n.3]. Rather, Petitioners contends that the All Writs Act and the

8See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981) (“Our first consideration

is the distinction between a “facial attack” and a “factual attack” upon the complaint under Fed.

R. Civ. Proc. 12(b)(1). . . Simply stated, if the defense merely files a Rule 12(b)(1) motion, the

trial court is required merely to look to the sufficiency of the allegations in the complaint because

they are presumed to be true. If those jurisdictional allegations are sufficient the complaint

stands. If a defendant makes a ‘factual attack’ upon the court’s subject matter jurisdiction over

the lawsuit, the defendant submits affidavits, testimony, or other evidentiary materials. In the

latter case a plaintiff is also required to submit facts through some evidentiary method and has

the burden of proving by a preponderance of the evidence that the trial court does have subject

matter jurisdiction.). To be sure, the Court has required Respondents to provide updated

information about the efforts taken at Oakdale to combat the spread of COVID-19, but such

evidence is not necessary for this Ruling. No one disputes, indeed Attorney General Barr’s

memorandum is a concession, that COVID-19 has had serious affects at certain facilities,

including Oakdale.

9While no detailed analysis is required given Petitioners’ concession, it is clear on its fact

that the All Writs Act, 28 U.S.C. § 1651(a), merely allows courts to “issue all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of

Suspension Clause work “alongside 28 U.S.C. §§ 1331 and 2241,” to “describe the combination

of statutory and Constitutional authority under which this Court may order the necessary relief.”

Id. Instead, Petitioners argue that the Court has jurisdiction under § 2241 and that sovereign

immunity does not bar the Court from exercising authority in this case under § 1331.

Given these concessions, the focus of the parties’ memoranda, and the expedited nature

of these proceedings, the Court thus limits its analysis to these arguments.

A. Petition for Writ of Habeas Corpus, 28 U.S.C. §2241

On the face of the Complaint, Petitioners allege that “the government must protect

incarcerated persons from a substantial risk of serious harm to their health and safety.” [Doc.

No. 1, ¶75]. Petitioners further allege that “[t]he Fifth Circuit recognizes that ‘[s]ection 2241 is

the proper habeas remedy if a prisoner challenges the execution of his sentence rather than the

validity of his conviction and sentence.’” Id. at p. 27, n. 104 (citing Carter v. Sawyer, 54 Fed.

App’x. 406 (5th Cir. 2002) (unpublished)) (other citations omitted). As part of their support for

their § 2241 Petition, Petitioners also cite to Fifth Circuit case law providing that “‘sole function’

of habeas is to ‘grant relief from unlawful imprisonment or custody.’” Id. (quoting United States

v. Pierre, 525 F.2d 933, 935-936 (5th Cir. 1976)).

However, Respondents move for dismissal because the Court is jurisdictionally barred

from reviewing the BOP’s discretionary classification and placement of Petitioners under §

2241.

The BOP is charged with the care, custody, and control of incarcerated individuals,

law.” The “All Writs Act does not confer jurisdiction on the federal courts.” See Syngenta Crop

Prot., Inc. v. Henson, 537 U.S. 28, 33, 123 S. Ct. 366, 370 (2002). Likewise, no cause of action

arises under the Suspension Clause itself.

but is not empowered to reduce or modify criminal sentences imposed by courts, or to

unilaterally release inmates. Rather, only the original sentencing courts have the power to

modify or reduce inmates’ sentences. See 18 U.S.C. § 3582. Both the BOP and individual

inmates have the authority to move the sentencing court for a sentence reduction or modification

in certain circumstances, including compassionate release. 18 U.S.C. § 3582(c)(1)(A).

On the other hand, authority and discretion are placed in the BOP to determine

where to confine inmates. See 18 U.S.C. § 3621. Both placement in a Residential Reentry

Center (“RRC”) (more commonly known as a halfway house) and on home confinement are

within the BOP’s discretion. See 18 U.S.C. § 3624(c); 18 U.S.C. § 3621(c) (“Such conditions

may include a community correctional facility” and “[t]he authority under this subsection may

be used to place a prisoner in home confinement.”). Under Section 12003(b)(2) of the

Coronavirus Aid, Relief, and Economic Security (CARES) Act (H.R. 748), enacted on March

27, 2020, if the Attorney General finds that emergency conditions will materially affect the

functioning of the BOP, the Director of the BOP may lengthen the maximum amount of time for

which he is authorized to place a prisoner in home confinement under the first sentence of 18

U.S.C. § 3624(c)(2).

Indeed, both before and after the passage of the CARES Act, the Attorney General

exercised his authority and issued memoranda to the Director of the BOP addressing exactly

these concerns. It is a matter of public record, that the BOP began preparing for the coronavirus

in January 2020 by obtaining guidance from its Health Services Division regarding the disease,

existing outbreaks, and best practices to mitigate transmission. See Federal Bureau of Prisons

COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp. On

March 26, 2020, the Attorney General issued a memorandum to the BOP directing, where

appropriate, that the BOP utilize home confinement “to protect the health and safety of BOP

personnel and the people in our custody.” [Doc. No. 8, Exhibit 2]. The Attorney General

directed the BOP to “prioritize the use of your various statutory authorities to grant home

confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.”

Id. However, the Attorney General noted that many inmates would be safer in BOP facilities due

to the controlled population and access to medical care. Id. The prioritization of home

confinement was conditioned upon careful, individualized determinations made by BOP staff to

include certain discretionary factors such as: (1) age and vulnerability to COVID-19; (2) facility

security level; (3) prison conduct; (4) minimum PATTERN score; (5) demonstrated and

verifiable re-entry plan to prevent recidivism and maximize public safety (lower risk of

contracting COVID-19 upon release, than at BOP facility); and (6) crime of conviction and risk

posed by the inmate to the community. Id.

Additionally, on April 3, 2020, after the passage of the CARES Act, the Attorney General

made a finding of emergency conditions which are materially affecting the function of the BOP.

[Doc. No. 8, Exhibit 3]. This finding allowed the Attorney General to expand the cohort of

inmates who can be considered for home confinement. Id. Thus, all at-risk inmates could now

be considered for home confinement, rather than just inmates who were previously eligible for

transfer (inmates with 10 percent of prison term remaining or 6 months). Id. The Attorney

General also recognized that indiscriminately releasing inmates, “would pose profound risks to

the public from released prisoners engaging in additional criminal activity, potentially including

violence or heinous sex offenses.” Id. As of the date of this Ruling, the BOP has placed 1,440

inmates on home confinement. https://www.bop.gov/coronavirus/(last visited 04/22/2020).

As Respondents point out, decisions made by BOP (or any prison officials) “necessarily

involve balancing limited prison resources with the overriding concern of institution security.”

[Doc. No. 12-1, p. 8]. See 18 U.S.C. § 3621(b) (Statutorily requiring the BOP to consider five

factors: (1) the resources of the facility contemplated; (2) the nature and circumstances of the

offense; (3) the history and characteristics of the prisoner; (4) any statement of the court that

imposed the sentence...; and (5) any pertinent policy statement issued by the Sentencing

Commission pursuant to section 994(a)(2) of title 28). Thus classification and placement of

inmates is committed to the discretion of the BOP and once that discretion is exercised, “a

designation of a place of imprisonment under this subsection is not reviewable by any court.” 18

U.S.C. § 3621(b). Absent a review of whether the BOP has exceeded its statutory authority, the

ultimate outcome of that classification is beyond the purview of the court. See, e.g., McKune v.

Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates is at the

core of prison administrators’ expertise.”); United States v. Yates, No. 15-40063-01-DDC, 2019

WL 1779773, at *4 (D. Kan. Apr. 23, 2019) (“[I]t is BOP—not the courts—who decides

whether home detention is appropriate.”); United States v. Gould, No. 7:05-CR-020-O,

2018 WL 3956941, at *1 (N.D. Tex. Jan. 17, 2018) (“[T]he BOP is in the best position to

determine whether RRC/halfway house placement would be of benefit to [the defendant] and

to society in general.”); Creager v. Chapman, No. 4:09-cv-713, 2010 WL 1062610, at *3

(N.D. Tex. Mar. 22, 2010) (stating that “nothing in the Second Chance Act of 2007, or 18 U.S.C.

§ 3621(b) entitles . . . any prisoner to placement in a residential reentry center”); see also,

Fullenwiley v. Wiley, 1999 WL 33504428, at *1 (N.D.N.Y Oct. 5, 1999) (“[D]iscretionary

decisions by the BOP made pursuant to its authority under § 3621(b) are not subject to judicial

review”); see also 18 U.S.C. § 3625.

Petitioners do not challenge their classification or initial placement at Oakdale, but still

seek “release” under § 2241 because of the extraordinary conditions caused by COVID-19.

They bring this action under § 2241, which is the proper vehicle for challenging “the fact or

length of confinement.” Preiser v. Rodriquez , 411 U.S. 475, 494 (1973). However, the “sole

function” of habeas is to “grant relief from unlawful imprisonment or custody and it cannot be

used properly for any other purpose.” Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir.

1976). In this case, Petitioners do not and cannot contend that their imprisonment or custody

itself is unlawful; they are all convicted of certain crimes, were properly sentenced to serve terms

of imprisonment, and then were assigned by the BOP to serve those terms of imprisonment at

Oakdale.

Citing to the Supreme Court decisions in Preiser, supra; Bell v. Wolfish, 441 U.S. 520,

527 (1979); and Ziglar v. Abbasi, 137 S. Ct. 1843, 1862–63 (2017), Petitioners assert that the

“Supreme Court has left the door open to so-called ‘conditions of confinement’ challenges under

the habeas regime.” [Doc. No. 19, p. 9, n. 6]. However, the availability of habeas relief for

challenges of conditions of confinement was not before any of the cited courts. See Preiser, 411

U.S. at 499-500 (In a case involving the release of a state prisoner by a federal district judge

without requiring him to exhaust his administrative remedies, the Supreme Court stated in dicta:

“When a prisoner is put under additional and unconstitutional restraints during his lawful

custody, it is arguable that habeas corpus will lie to remove the restraints making the custody

illegal. . . . But we need not in this case explore the appropriate limits of habeas corpus as an

alternative remedy to a proper action under §1983. That question is not before us. What is

involved here is the extent to which § 1983 is a permissible alternative to the traditional remedy

of habeas corpus.”); Bell v. Wolfish, 441 U.S. at 527 (In a case brought by pretrial detainees

challenging the constitutionality of numerous conditions of confinement and practices in a

federally operated short-term custodial facility, the Supreme Court stated in dicta that “we leave

to another day the question of the propriety of using a writ of habeas corpus to obtain review of

the conditions of confinement, as distinct from the fact or length of the confinement itself.”)

(citing Preiser, 411 at 499-500); Abbasi, 137 S. Ct. at 1862 (In a Bivens action by alien detainees

held on immigration violations in wake of the September 11, 2001 terrorist attacks, the Supreme

Court stated in dicta that “we have left open the question whether they might be able to challenge

their confinement conditions via a petition for a writ of habeas corpus.”) (citing Bell 441 U.S. at

526, n. 6; Preiser, 411 U.S. at 499).

As recently noted by another court, these cases, “reveal neither a ringing endorsement nor

an outright prohibition.” Money v. Pritzker, ---F.Supp. 3d ---, Nos. 20-cv-2093 & 20-cv-2094,

2020 WL 1820660, at *9 (N.D. Ill. Apr. 10, 2020). Neither party nor this Court found a single

precedential case in the Fifth Circuit interpreting this dicta and allowing conditions of

confinement claims to be brought under § 2241.

Moreover, even if it is theoretically possible to bring conditions of confinement claims

under § 2241 because petitioners seek “release” from confinement, such is not the case here.10 In

10The Court has reviewed the decisions of two sister federal district courts. In United

States v. Brady, 2020 WL 1865486, at *1 (M.D. Pa. Apr. 14, 2020), Brady, who is confined in

Connecticut, filed a pro se motion for release to home confinement in his sentencing court in

Pennsylvania. When the government responded to the complaint as a request for compassionate

release, the court, acting sua sponte, and without briefing from the government, converted the

motion to a petition under § 2241, relying on Preiser.

In another decision, Wilson v. Williams, Civil Action No. 4:20-cv-00794 (N.D. Ohio

April 22, 2020), a federal district judge in the Northern District of Ohio certified the class of

prisoners at the Federal Correctional Institute at Elkton, Ohio. Applying Sixth Circuit case law,

that court determined that § 2241 is the proper vehicle for asserting this type of claim,

acknowledging that claims of the prisoners, almost identical to those in this case, “evade easy

classification.”

actuality, Petitioners do not seek release from custody because they have, for example,

overserved their sentence, but seek to force this Court to order BOP to assign them to home

confinement or to some other lesser form of detention, without regard to the BOP’s own

classification process, because of the unique circumstances caused by the COVID-19 virus.11

See [Petitioners’ Emergency Motion, Doc. No. 9-1 n.3, (“The term ‘release,’ as used throughout

this memorandum, refers to discharge of incarcerated persons from the physical confines of

Oakdale, not necessarily release from custody. Release options may include, but are not limited

to: release to parole or community supervision; transfer furlough (as to another facility, hospital,

or halfway house); or non-transfer furlough, which could entail a released person’s eventual

return to Oakdale once the pandemic is over and the viral health threat is abated. Any releases

would include requirements for testing, care, and social distancing, as informed by the Rule 706

expert that Petitioners have requested.”). Such a designation and/or classification falls squarely

within BOP’s authority and outside the purview of this Court.12 To rule otherwise would make

this Court a de facto “super” warden of Oakdale.

This Court respectfully disagrees with those decisions.

11 While not pertinent to this Ruling, the Court notes that the BOP has also undertaken a

number of other demonstrable steps at Oakdale to improve hygiene and better protect inmates

and staff who remain at the facilities. See [Doc. No. 13-2, affidavit of Dr. Richard Griffin,

Oakdale Medical Director; Doc. No. 14 (detailing steps taken)].

12 The Court is certainly aware and has considered cases cited by Petitioners in other

jurisdictions where courts have permitted petitioners to seek habeas relief based upon COVID-

19. See Vazquez Barrera, 2020 WL 1904497, at *3-4; Malamv. v. Adducci, Case No. 20-10829,

2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020); Money, 2020 WL 1820660, at *8; Mays v.

Dart, No. 20-cv-2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020); Bent v. Barr, No. 19-

cv-6123, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020); Coreas v. Bounds, No. TDC-20-

0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020); Thakkar v. Doll, No. 20-cv-480, 2020

WL 1671563, at *2 (M.D. Pa. Mar. 31, 2020); Amaya-Cruzv. Adducci, No. 1:20-cv-789, 2020

WL 1903123, at *2-3 (N.D. Ohio Apr. 18, 2020); Fofana v. Albence, No. 20-10869, 2020 WL

B. Waiver of Sovereign Immunity under 28 U.S.C. §1331

Petitioners also assert that the Court has jurisdiction over this case pursuant to the general

jurisdictional statute, 28 U.S.C. § 1331. However, Respondents further contend that the Court

lacks subject-matter jurisdiction under § 1331 because the United States has not waived

sovereign immunity.

Section 1331 is a general jurisdictional statute providing the district court with

jurisdiction for “all civil actions arising under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. General jurisdictional statutes do not independently waive the

Government’s sovereign immunity. Taylor v. United States, 2008 WL 4218770, at *3-4

(5th Cir. 2008); Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972); Divine v. United States,

328 F.2d 305 (5th Cir. 1964) (no waiver under 28 U.S.C. § 1343).

Having found that exercise of subject-matter jurisdiction is not otherwise proper in this

matter, the Court cannot rely on the general jurisdictional statute to fill that void.

C. Appropriateness of Dismissal at this Juncture

Finally, the Court is aware that under Federal Rule of Civil Procedure 15(a)(1)(A),

Petitioners “may amend [their] pleading once as a matter of course within . . . 21 days after

serving it.” Both parties have cited to cases relating to the litigation of prison conditions under

1873307, at *6-12 (E.D.Mich. Apr. 15, 2020); Jeferson V.G. v. Decker, No. 20-cv-3644, 2020

WL 1873018, at *5 (D.N.J. Apr. 15, 2020); Valenzuela Arias v. Decker, No. 20-cv-2802, 2020

WL 1847986, at *2-10 (S.D.N.Y. Apr. 10, 2020); Barbecho v. Decker, No. 20-cv-2821,2020 WL

1876328, at *5, *9 (S.D.N.Y. Apr. 15, 2020); see also [Doc. No. 19, pp. 9-11 (collecting cases)].

However, eight of these cases involve immigration detainees and one involves pre-trial

detainees, both categories of persons who are subject to a different review and for whom habeas

relief has routinely been acknowledged as the appropriate vehicle for detainees to challenge their

custody. See Braden v. 30th Judicial Cir. Ct. of Kentucky, 410 U.S. 484, 488 (1973); Chin Yow

v. U.S., 208 U.S. 8, 13 (1908); Zadvydas v. Davis, 533 U.S. 678, 688 (2001).

Prison Litigation Reform Act (“PLRA”), 18 U.S.C. §3626. See Brown v. Plata, 563 U.S. 493

(2011) (addressing Eighth Amendment violations of prison conditions in California state prisons

under the PLRA and its specific requirements, including a 3-judge panel); see also Money, supra

(addressing the safety and well-being of state court prisoners housed by the Illinois Department

of Corrections during the COVID-19 pandemic). However, to the extent that Petitioners would

move to amend their Complaint to assert a claim for injunctive or other prospective relief under

the PLRA," such amendment would be futile where there are no factual allegations that

Petitioners have exhausted their administrative remedies, nor have the other requirements for the

“release” of prisoners been met. See 18 U.S.C. § 3626(a)(2)-(3).

IV. CONCLUSION

For the foregoing reasons, Respondents’ Motion to Dismiss is GRANTED IN PART and

DENIED IN PART AS MOOT. To the extent that Respondents move to dismiss under Federal

Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, the motion is

GRANTED, and Petitioners’ Complaint is DISMISSED WITH PREJUDICE. To the extent that

Respondents moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim, the Court has not reached those arguments, and the motion is DENIED AS MOOT.

MONROE, LOUISIANA, this 22" day of April, 2020.

Ld ate

unifeD TATES DISTRiG7 J

The PLRA defines “the term ‘prison’” to include “any Federal . . . facility that

incarcerates or detains .. . . adults accused of, convicted of, sentenced for, or adjudicated

delinquent for, violations of criminal law.” 18 U.S.C. §3626(g)(5). The “term ‘prospective

relief’ means all relief other than compensatory monetary damages[.|” Jd. at § 3626(g)(6).