# GOODCHILD v. ORTIZ

> District Court, D. New Jersey · September 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10271839

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10271839

## How later opinions describe it (automated extraction)

- noting “the Petitioners’ quest for nothing short of release appeared to leave little room for a remedy short of the most extreme one[.]”
- noting the district court, in addressing conditions of confinement, failed to consider recent efforts in the prison to reduce spread of COVID-19
- noting the district court failed to address the CDC guidance for detention facilities

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
PETER GOODCHILD, ` :
ELIEZER SOTO CONCEPCION, :
JOAN ABREU-FELIZ and : CIVIL ACTION NO. 21-790 (RMB)
MICHAEL WINANS, individually :
and on behalf of all others :
similarly situated, : OPINION (REDACTED)
:
Petitioners :
:
v. :
:
DAVID E. ORTIZ, :
:
Respondent :
_________________________ :
Appearances:
Peter Goodchild
Eliezer Soto Concepcion
Joan Abreu-Feliz
Michael Winans
Fort Dix Federal Correctional Institution
P.O. Box 2000
Joint Base MDL, NJ 08640
Petitioners pro se
John T. Stinson, Jr.
Jane Dattilo
John Andrew Ruymann
Assistant United States Attorneys
United States Department of Justice
Office of the U.S. Attorney
401 Market Street
P.O. Box 2098
Camden, New Jersey 08101
Attorneys for Respondent
Bumb, United States District Judge:
This matter comes before the Court upon Petitioners Peter Goodchild, Eliezer Soto-
Concepcion, Joan Abreu-Feliz, and Michael Winans’ (collectively “Petitioners”) petition
for writ of habeas corpus under 28 U.S.C. § 22411 (Pet., Dkt. No. 1), filed as a putative class

action. Respondent filed an answer to the petition (Answer, Dkt. No. 7), and Petitioners
filed a reply brief. (Reply Brief, Dkt. No. 17.) On May 4, 2021, Petitioners filed an
emergency supplement to the petition (“Petrs’ Emergency Suppl. Pet.,” Dkt. No. 22), and
Respondent filed supplemental briefing in opposition to habeas relief under 28 U.S.C. §
2241. (“Respt’s Suppl. Brief,” Dkt. No. 24.) For the reasons discussed below, the Court will
dismiss the petition in part for lack of jurisdiction2 and deny the petition in part on the
merits.

1 Petitioners also assert jurisdiction under 28 U.S.C. § 1331, 29 U.S.C. § 794, 28 U.S.C. §
1651 (All Writs Act), the Suspension Clause of the United States Constitution, and 28
U.S.C. § 2201 (Declaratory Judgment Act). (Pet., Dkt. No. 1 at 4.) The Court addresses
jurisdiction under 28 U.S.C. § 1331 in Section IV(B) below. Petitioners do not allege the
elements of a cause of action under 28 U.S.C. § 794, which requires a plaintiff to allege
“that he is a qualified individual with a disability, who was precluded from participating in a
program, service, or activity, or otherwise was subject to discrimination, by reason of his
disability.” Furgess v. Pennsylvania Dep't of Corr., 933 F.3d 285, 288–89 (3d Cir. 2019).
Neither the Declaratory Judgment Act nor the Suspension Clause of the United States
Constitution provides an independent basis for jurisdiction. See Allen v. DeBello, 861 F.3d
433, 444 (3d Cir. 2017) (Declaratory Judgment Act); see Boumediene v. Bush, 553 U.S. 723,
831–32 (2008) (“The Suspension Clause of the Constitution provides: ‘The Privilege of the
Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it”) (citing Art. I, § 9, cl. 2.) Finally, ‘[t]he All Writs
Act does not itself confer any subject matter jurisdiction, but rather only allows a federal
court to issue writs ‘in aid of’ its existing jurisdiction.” United States v. Apple MacPro
Computer, 851 F.3d 238, 244 (3d Cir. 2017).
2 A court may dismiss an action for lack of subject-matter jurisdiction at “any time[.]” Fed.
R. Civ. P. 12(h)(3).
I. PETITIONERS’ CLAIMS
Petitioners Peter Goodchild (“Goodchild”), Eliezer Soto-Concepcion (“Soto-
Concepcion”), Joan Abreu-Feliz (“Abreu-Feliz”) and Michael Winans (“Winans”) are
federal prisoners who are confined in the minimum security camp (“the Camp”) within the

Federal Correctional Institution in Fort Dix, New Jersey (“FCI Fort Dix”) who were
present during outbreaks of COVID-19 in the facility in 2020 and 2021. (Pet, Dkt. No. 1.) In
summary of the petition, reply brief, and emergency supplemental petition, Petitioners
allege that Respondent was deliberately indifferent to their health because maintaining six
feet social distance was impossible in the Camp, inmates did not have enough soap or
masks during the first outbreak, BOP did not use all available buildings to provide for social
distancing of inmates, outdoor recreation was suspended even though being outdoors was
the safest environment to avoid transmission of the virus, lack of testing and timely
quarantining of COVID-19 positive inmates allowed the virus to spread, all nonemergent
medical care was delayed and emergency care was not readily available, infected inmates

were transferred from FCI Elkton to FCI Fort Dix and caused a second wave of infections
in the low security compound, staff violated PPE and mask mandates, and delays or
mistakes caused by understaffing over the holidays in December 2020 and January 2021,
caused another wave of infections in the Camp.
Petitioners seek to represent a class of similarly situated individuals in the Camp who
are at heightened risk, based on their ages and/or medical conditions, to a severe case of the
virus or death, and that release from confinement under 28 U.S.C. § 2241 is the only remedy
to the Eighth Amendment violation caused by Defendants’ deliberate indifference to the
spread of COVID-19 in the Camp.3 They further allege that the arbitrary decision to release
to home confinement only those inmates who served at least fifty percent of their sentences,
or have eighteen months or less remaining on their sentences and have served more than
25% of their sentences, constitutes deliberate indifference to their health, and relies on an

unreasonable statutory interpretation of the CARES Act. In addition, Petitioners seek
declaratory judgment that their Eighth Amendment right to be free of cruel and unusual
punishment was violated by their conditions of confinement,4 and they seek appointment of
a special master5 to determine the number of inmates the Camp can accommodate with
social distancing in place to protect against the spread of the virus. Finally, they seek to
enlarge their custody to home confinement pending final resolution of their claims.
II. THE ANSWER
Respondent, in its Answer, challenges subject matter jurisdiction under 28 U.S.C. §
2241, and alternatively argues that Petitioners’ claims fail on the merits. Respondent
presented a counterstatement of facts rather than admitting or denying each allegation in the

petition, (Answer, Dkt. No. 7) and submitted a number of BOP documents that
demonstrate the actions taken by the BOP to prevent spread of COVID-19 in BOP facilities,

3 The petition is similar to a case filed in the United States District Court for the Central
District of California, Torres v. Milusnic, 472 F. Supp. 3d 713 (C.D. Cal. 2020). Another
court within the Central District of California declined to follow the ruling in Torres that
habeas jurisdiction was appropriate. Bruno v. Warden, No. CV 20-6390 JFW, 2021 WL
2323941, at *5 (C.D. Cal. May 14, 2021), report and recommendation adopted, No. CV 20-
6390 JFW (PVC), 2021 WL 2313657 (C.D. Cal. June 7, 2021).

4 See 28 U.S.C. § 2201.

5 Petitioners invoke 28 U.S.C. § 1331 for jurisdiction.
summarized here. In their reply brief, Petitioners do not contest the existence of these
policies, but allege inadequacies and violation of the policies. (Reply Brief, Dkt. No. 16.)
The BOP action plan to reduce transmission of COVID-19 in BOP facilities provides:
Phase 1: In January 2020, the Bureau established a task force to
begin strategic planning for COVID-19, and to build on the
Bureau’s already existing procedures for pandemics.

Phase 2: On March 13, 2020, the agency issued directives
suspending social and legal visits, curtailing movement,
cancelling staff travel and training, limiting access for contractors
and volunteers, and established enhanced screening for staff and
inmates for locations with sustained community transmission
and at all medical centers.

All facilities were placed on modified operations to maximize
social distancing in our facilities, as much as practicable. This
modification includes staggered meal times and staggered
recreation times, for example, in order to limit congregate
gatherings.

Additionally, the Bureau established quarantine and isolation
procedures to mitigate the spread of COVID-19.

Phase 3: On March 18, 2020, the Bureau implemented an action
plan for Bureau locations that perform administrative services,
which followed DOJ, OMB and OPM guidance for maximizing
telework. Additionally, as part of the Pandemic Influenza
contingency plan, all cleaning, sanitation, and medical supplies
have been inventoried. Ample supplies are on hand and ready to
be distributed or moved to any facility as deemed necessary. As
we continue to respond, the Bureau has placed additional orders
for these supplies, in case of a protracted event.6

Phase 4: On March 26, 2020, the BOP implemented revised
preventative measures for all institutions. The agency updated its
quarantine and isolation procedures to require all newly
admitted inmates to BOP, whether in a sustained community
transition area or not, be assessed using a screening tool and

6 Available at
https://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_COVID19_upd
ate.pdf (last visited Aug. 26, 2021).
temperature check. This includes all new intakes, detainees,
commitments, writ returns from judicial proceedings, and parole
violators, regardless of their method of arrival. Asymptomatic
inmates are placed in quarantine for a minimum of 14 days or
until cleared by medical staff. Symptomatic inmates are placed
in isolation until they test negative for COVID-19 or are cleared
by medical staff as meeting CDC criteria for release from
isolation.7

Between Phases 3 and 4 of the BOP Action Plan, the CDC, on March 23, 2020,
issued “Interim Guidance on Management of Coronavirus Disease 2019 in Correctional
and Detention Facilities … based on what is currently known about the transmission and
severity of coronavirus disease 2019 (COVID-19) as of March 23, 2020.” (Declaration of
Adam Sassaman (“Sassaman Decl.”) Attachment 2, Dkt. No. 8-3 at 68-94.) This guidance
includes “detailed recommendations on the following topics related to COVID-19 in
correctional and detention settings:”
• Operational and communications preparations for
COVID-19

• Enhanced cleaning/ disinfecting and hygiene practices

• Social distancing strategies to increase space between
individuals in the facility8

7 Background on Phases 1-4, available at
https://www.bop.gov/resources/news/20200331_COVID19_action_plan_5.jsp (last visited
Aug. 26, 2021).

8 The CDC recommended, in part:

Implement social distancing strategies to increase the physical space between incarcerated/
detained persons (ideally 6 feet between all individuals, regardless of the presence of
symptoms). Strategies will need to be tailored to the individual space in the facility and the
needs of the population and staff. Not all strategies will be feasible in all facilities.
. . .
Housing:
• How to limit transmission from visitors

• Infection control, including recommended personal
protective equipment (PPE) and potential alternatives
during PPE shortages
• Verbal screening and temperature check protocols for
incoming incarcerated/detained individuals, staff, and
visitors

• Medical isolation of confirmed and suspected cases and
quarantine of contacts, including considerations for
cohorting9 when individual spaces are limited

• Healthcare evaluation for suspected cases, including
testing for COVID-19

• Clinical care for confirmed and suspected cases

• Considerations for persons at higher risk of severe
disease from COVID-19

(Sassaman Decl., Attachment 2, Dkt. No. 8-3 at 71.) The CDC continues to update this
guidance.10Adam Sassaman, the Safety and Occupational Health Administrator at FCI Fort

• If space allows, reassign bunks to provide more space between individuals, ideally 6
feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned
to a new occupant.)

• Arrange bunks so that individuals sleep head to foot to increase the distance between
them

• Rearrange scheduled movements to minimize mixing of individuals from different
housing areas

(Sassaman Decl., Attachment 2, Dkt. No. 8-3 at 79.)

9 “Cohorting refers to housing inmates together rather than in single cells.” (Turner-Foster
Decl., Ex. 1, Dkt. No. 8-1 at 11.)

10 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities, available at https://www.cdc.gov/coronavirus/2019-
Dix, assisted “in implementing the March 23, 2020 CDC Guidance on Management of
COVID-19 in Correctional and Detention Facilities, as well as the updated guidance
disseminated to BOP by the Centers for Disease Control and Prevention….” (Id. ¶ 5, Dkt.
No. 8-3.) On April 3, 2020, FCI Fort Dix management approved and disseminated updated

COVID-19 cleaning and disinfection procedures drafted by Sassaman, instructed staff to train
inmate orderlies on implementation and incorporated these procedures into the housekeeping
plan. (Sassaman Decl. ¶¶ 21, 22 and Attachments 4 and 5, Dkt. No. 8-3 at 101-113.)11
Phase 5 of the BOP Action Plan, effective April 1, 2020, provides:
In response to a growing number of quarantine and isolation
cases in our facilities, the BOP will take the following actions
immediately to further mitigate the exposure and spread of
COVID-19.
• For a 14-day period, inmates in every institution will be
secured in their assigned cells/quarters to decrease the
spread of the virus. This modification to our action plan
is based on health concerns, not disruptive inmate
behavior.

• During this time, to the extent practicable, inmates
should still have access to programs and services that are
offered under normal operating procedures, such as
mental health treatment and education.

• In addition, the Bureau is coordinating with the United
States Marshals Service (USMS) to significantly
decrease incoming movement during this time.

• After 14 days, this decision will be reevaluated and a
decision made as to whether or not to return to modified
operations.

ncov/community/correction-detention/guidance-correctional-detention.html (last visited
Aug. 27, 2021).

11 Page citations to docketed filings refer to the page assigned by the Court’s electronic case
management filing system, CM/ECF.
• Limited group gathering will be afforded to the extent
practical to facilitate commissary, laundry, showers,
telephone, and Trust Fund Limited Inmate Computer
System (TRULINCS) access.12On June 19, 2020, the
BOP issued Version 2.1 of “COVID-19 Guidance For
Inmates Who Are Transferring or Releasing From a
BOP Facility”

(Reiser Decl., Ex. 1, Dkt. No. 8-2 at 14-18.)
A brief summary of the detailed quarantine guidance provides:
Whenever possible, specific inmates who will be transferring or
releasing from BOP custody need to be identified at least 21 days
prior to their movement date.

• An inmate who is currently in or meets the criteria for
COVID-19 medical isolation should not be transferred
or released from BOP custody unless absolutely
necessary (e.g. immediate release).

• Personal Protective Equipment (PPE) appropriate for
each setting should be worn by staff in accordance with
established procedures for isolation, quarantine, testing,
and transport.

• Direct travel to the receiving facility or location without
mixing with other inmate populations should be
accomplished whenever possible.

A roster of inmates who are in quarantine that includes cell
assignment, date of placement in quarantine and projected end
date of quarantine, date of placement in that specific cell along
with cellmate or members of a cohort, and designated facility
may be helpful in managing this type of quarantine.

All inmates who are transferring to another
location/correctional jurisdiction or are releasing from BOP
custody will be managed in one of the following three
categories: 1) quarantine with symptom screens, temperature

12 Available at
https://www.bop.gov/resources/news/20200331_COVID19_action_plan_5.jsp (last
visited).
checks, and a test in / test out strategy for inmates who have
not previously tested positive for COVID-19, 2) testing of
previously COVID-19 positive inmate cases who have since
recovered and have been released from isolation, 3) Immediate
releases. Consultation with the Regional Medical Director,
Regional Health Services Administrator, and Regional
Infection Prevention Consultant is recommended for
management of inmates who are not in one of these three
categories.

(Reiser Decl., Ex. 1, Dkt. No. 8-2 at 14-18.)

Phases 6 through 8 extended Phase 5 of the BOP Action Plan to include enhanced
modified operations until July 31, 2020.13 Phase Nine of the BOP Action plan, instituted on
August 5, 2020, provided guidance in access to counsel/legal materials, programming,
compliance reviews, court trips and intakes.14

13 Phase Six available at
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEw
jN4dWC2b_yAhWDF1kFHbgcDXAQFnoECAMQAQ&url=https%3A%2F%2Fwww.bop
.gov%2Fresources%2Fnews%2Fpdfs%2F20200414_press_release_action_plan_6.pdf&usg=
AOvVaw1EC5Ktih9D9KOImL02ik71 (last visited Aug. 26, 2021).

Phase Seven available at
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=
8&ved=2ahUKEwjIioKt2b_yAhUUGFkFHVCCBn4QFnoECAkQAw&url=https%3A%2F
%2Fwww.bop.gov%2Fresources%2Fnews%2F20200520_COVID-
19_phase_seven.jsp&usg=AOvVaw3yRKruzfeaocuB8KDwUmah (last visited Aug. 26,
2021).

Phase 8 available at
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=
8&ved=2ahUKEwjg-
dbE2b_yAhUUUzUKHalfDfkQFnoECAQQAQ&url=https%3A%2F%2Fwww.bop.gov%2
Ffoia%2Fdocs%2F%2FCOVIDPhase8June30.pdf&usg=AOvVaw34rFceciguVGe2yVzgsfN
W (last visited Aug. 26, 2021).

14 Phase 9 available at https://www.bop.gov/foia/docs/COVIDphase9_08052020.pdf.
(last visited Aug. 26, 2021).
On August 7, 2020, the BOP issued version 2.0 of the “BOP Quarantine Guidance:
New Admits, Contacts Of COVID-19, and Pending Release.” Primary features of the
guidance include:
The following inmates should be placed in quarantine:

• Close contacts of a suspected or confirmed case of
COVID-19 – Exposure quarantine

• New admissions to a BOP facility – Intake quarantine

• Inmates returning from the community to a BOP facility
(e.g. an extended time in an emergency department or
crowded waiting area, residing overnight in the
community or alternative setting including
hospitalization, furlough, writ return, etc.…)

Intake quarantine

• Inmates being released back into the community
(residential reentry center, home confinement, or
full-term release), prior to their release

Release/transfer quarantine

• Inmates being transferred to another BOP facility or
correctional jurisdiction

Exception to quarantine requirements:

• Inmates previously diagnosed with COVID-19 do not
need to be quarantined within 90 days of their initial
symptom onset (symptomatic cases) or initial COVID-
19 positive test (asymptomatic cases) if they have met
the current CDC release from isolation criteria.

DURATION OF QUARANTINE is 14 days.

Each type of quarantine utilizes a test in/test out strategy.

RECOMMENDED PPE FOR STAFF interacting with
asymptomatic inmates in quarantine:

• FACE COVERINGS or MASKS FOR INMATES:
• inmates in Exposure Quarantine should be screened at
least once daily for COVID-19 symptoms and signs to
include a temperature reading. Twice daily screening is
preferred when feasible.

• MEALS: Meals should be provided to quarantined
individuals in their quarantine spaces.

• RESTRICTIONS ON MOVEMENT: To the extent
possible, quarantined inmates should be restricted from
being transferred, having visits, or mixing with the
general population.

(Turner-Foster Decl., Ex. 1, Dkt. No. 8-1 at 10-18.)

The BOP provided PPE guidance:
• Staff assigned to work in a quarantine or isolated area will
obtain their PPE from the Lieutenant’s office. Staff will
don and doff their PPE at the entrance of their assigned
post.

• The appropriate PPE for staff working in an isolation area
includes an N-95 mask, face shield/goggles, a gown and
gloves.

• The appropriate PPE for staff working in quarantine areas
is a surgical mask, face shield/goggles, a gown and
gloves.

• SHU staff should don the appropriate PPE for quarantine
areas when:

• Entering the cell of an inmate on quarantine

• When escorting an inmate on quarantine to and
from showers

• Note: As staff move from one cell to the next in the SHU,
the only PPE that must be doffed and replaced are your
gloves. If PPE becomes soiled, then doff all PPE.

• Staff and inmates in all other areas of the institution
should wear surgical masks.
(Id., Ex. 2, Dkt. No. 8-1 at 20.)
On January 22, 2021, the BOP provided vaccine guidance. (Id., Ex. 5, Dkt. No. 8-1
at 25-57.) The guidance created priority levels for staff and inmates to be offered the vaccine.
(Id.)
III. SUPPLEMENTAL BRIEFING
A. Petitioners’ Emergency Supplemental Petition
Petitioners filed an emergency supplemental petition in April 2021, because inmates
were suddenly crowded into the A-wing of the Camp. (Petrs’ Emergency Suppl. Pet., Dkt.
No. 22.) Petitioners assert there was no reason to crowd 153 inmates into one wing, sharing

only six showers. They allege that less than 50% of staff had been vaccinated and less than
30% of inmates had received both doses of the vaccine. Petitioners renewed their request for
the Court to order the BOP to release all those in the Camp who are eligible for release to
home confinement under the CARES Act, absent the time-served requirement imposed by
the BOP in contradiction to the Attorney General’s guidance.
B. Respondent’s Response to Petitioners’ Emergency Supplemental Petition
In response to Petitioners’ emergency supplemental petition, Respondent describes
the latest conditions in the Camp, including the reason for movement of inmates into the A-
wing on April 28, 2021. The BOP policy that resulted in the movement of inmates on April

28, 2021, “Module 6 Inmate Movement” was implemented on November 3, 2020. (Respt’s
Suppl. Brief, Dkt. No. 24; Supplemental Declaration of James Reiser (“Suppl. Reiser
Decl.”) ¶ 6, Dkt. No. 24-1; Ex. 1, Dkt. No. 24-2 at 2-12.) Pursuant to Module 6, on April
28, 2021, the B-wing was designated “as a quarantine cohort used for minimum-security
voluntary-surrender inmates and transfer quarantine and inmates transferring into the
institution.” (Id. ¶¶ 13-16.) The arriving inmates, who tested negative and were
asymptomatic, would enter this quarantine and would eventually test out. (Id. ¶ 9(b)). On
May 19, 2021, the B-wing cohort concluded, and it was expected that the Camp would soon
revert back to approximately 45% capacity in each wing. (Id. ¶¶ 13-16.) At that time, there

were no infections in the A-wing, and the vaccine had been offered to all eligible inmates
and staff. (Id. ¶¶ 17-21.) In April 2021, legal and social visits and outdoor recreation
resumed, with restrictions including physical distancing, sanitation, COVID-19 screening
and mask requirements. (Suppl. Reiser Decl. ¶¶ 28-34, Dkt. No. 24-1; Exs. 8 and 9, Dkt.
No. 24-2 at 27-33.) As of May 2021, of the four petitioners,
(Id. ¶¶ 23-26.)
Respondent argues that the vaccine obviates the need for home confinement.
(Respt’s Suppl. Brief, Dkt. No. 24 at 11.) Furthermore, Respondent contends this Court
lacks jurisdiction to consider Petitioners’ CARES Act claims, which Respondent asserts falls
under the Administrative Procedures Act (“APA”), where judicial review is unavailable for

decisions committed to agency discretion under 5 U.S.C. § 701(a)(2). (Id. at 12-13.)
IV. FINDINGS OF FACT
As noted, Respondent, rather than admit or deny each allegation in the petition,
presented a statement of counterfacts, identifying certain allegations that are in dispute.
Petitioners also identified disputed facts in their reply brief. “In reviewing a factual attack
[on jurisdiction], the court may consider evidence outside the pleadings.” Gould Elecs. Inc.
v. United States, 220 F.3d 169, 176 (3d Cir. 2000), holding modified by Simon v. United
States, 341 F.3d 193 (3d Cir. 2003) (citation omitted). The plaintiff must be permitted to
respond with evidence supporting jurisdiction. Id. at 177 (citing International Ass'n of
Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d at 712). “The court
may then determine jurisdiction by weighing the evidence presented by the parties.” Id. If
the Court must determine disputed material facts to determine jurisdiction, a trial is
required. Id.

The Court makes the following finding of facts that are material to the jurisdictional
question of whether the circumstances in the FCI Fort Dix Camp violated the Eighth
Amendment and are so extraordinary that the Court should extend habeas jurisdiction over
a conditions of confinement claim. The Court also identifies those facts disputed by the
parties that are not material to the determination of jurisdiction, because even if Petitioners’
allegations are accepted as true, the Court would not find extraordinary circumstances that
require habeas jurisdiction.
A. Facilities in the FCI Fort Dix Minimum Security Camp
Petitioners’ claims are based on the undisputed fact that while housed in the Fort
Dix minimum security camp (“the Camp”), they are unable to maintain six feet social

distance, as recommended by the CDC as a best practice to avoid transmission of COVID-
19. (Pet., Dkt. No. 1 at 7.) The Camp has two open-air dormitories, A-wing and B-wing,
each holding approximately 100 bunks, positioned two deep, for a capacity of
approximately 200 inmates, typically sleeping head to head. (Id. at 7-8; Declaration of
Nicolleta Turner- Foster, M.D.15 (“Turner-Foster Decl.”) ¶ 3, Dkt. No. 8-1; Declaration of
James Reiser16 (“Reiser Decl.”) ¶ 5, Dkt. No. 8-2.) Both dormitory-style wings of the Camp

15 Dr. Turner-Foster is the Clinical Director at FCI Fort Dix. (Turner-Foster Decl., ¶ 1.)

16 James Reiser is a Case Management Coordinator at FCI Fort Dix, whose office provides
coordination and oversight of many programs with FCI Fort Dix. (Reiser Decl., ¶¶ 1, 2.)
have communal bathrooms with six urinals, ten toilets, sixteen sinks, and eight showers,
directly adjacent to the next. (Pet., Dkt. No. 1 at 7.) Many of these were not functioning
during the lockdown, and were only repaired after Petitioners filed this action. (Id.; see also
Reply Brief, Dkt. No. 16 at 5-8.) The common areas of the Camp include a recreation area,

two TV/computer rooms, a chapel, two laundry rooms, and the cafeteria/kitchen. (Pet.,
Dkt. No. 1 at 7.) The administrative area of the building has six offices and there is a small
two-room medical office. (Id. at 8.) Contractor access at FCI Fort Dix was restricted during
the lockdown to those performing essential services or performing necessary maintenance
on essential services. (Reiser Decl., ¶ 3e, Dkt. No. 8-2.)
B. The First COVID-19 Outbreak at FCI Fort Dix and the BOP’s Response
Petitioners describe the first wave of COVID-19 in the Camp as the period from
March 13, 2020 through September 27, 2020. (Pet., Dkt. No. 1 at 8.) During this wave, 58
Camp inmates tested positive, and they all recovered. (Id.; Turner-Foster Decl., ¶ 5, Dkt.
No. 8-1.) Specifically, fourteen inmates tested positive in the B-wing on April 29, and nine

inmates tested positive in the A-wing on May 5, 2020. (Pet., Dkt. No. 1 at 10-11.) This was
the only mass testing done at the Camp during the first wave. (Id. at 11.)
Petitioners complain that the following conditions during the first wave of COVID-
19 in the Camp put them at risk. “Town Hall” meetings concerning the virus were held
indoors with 115 inmates and 20 staff in one room. (Id. at 8.) An inmate who reported to
sick call with COVID-19 symptoms on a weekend was told to return to his bunk until
Monday. (Pet., Dkt. No. 1 at 9.) Between April 6, 2020 and January 2021, Camp inmates
received only four disposable masks and 5 cloth masks. (Id.) Inmates were not permitted
outside until May 19, 2020, although poorly ventilated indoor spaces were known to spread
the virus. (Id. at 11.) In March and April 2020, inmates in the Camp did not have enough
soap, although this is disputed by Respondent. (Id. at 9-11.) COVID-19 positive inmates
who were quarantined were subject to a “revolving door” where each newly admitted
COVID-19 positive inmate reset the time for all in quarantine, including those who should

already have been released. (Id. at 10.) On May 25, 2020, senior staff and correctional
officers stopped wearing PPE and wore only masks, and temperature checks of inmates
were performed only on alternating days. (Id. at 11.) Only four tests were performed on the
population of almost 3,000 inmates at FCI Fort Dix between May 5 and September 28,
2020. (Id. at 12.)
Respondent describes the actions taken by the BOP to stop the spread of COVID-19
during the timeframe Petitioners have labeled the first wave. See supra Section II.A.
Inmates are quarantined when: (1) symptoms warrant; (2) an inmate newly arrives to FCI
Fort Dix; (3) an inmate is to be released from FCI Fort Dix to the community; or (4) an
inmate is transferring to or from another institution. (Sassaman Decl. ¶ 33, Dkt. No. 8-3.)

Inmates from the quarantine unit are not ordinarily permitted to leave the unit and have
their food delivered to them, and to the extent practicable, staff members also limit going
between the quarantine unit and the general population in order to avoid possible
contamination; furthermore, staff entering the quarantine or isolation units must wear PPE.
(Turner-Foster Decl. ¶ 9, Dkt. No. 8-1; Ex. 2, Dkt. No. 8-1 at 19-20.) This includes an N-95
mask, face shield/goggles, a gown and gloves. (Id.) The Health Services Division began
screening staff for COVID-19 symptoms as of March 16, 2020. (Sassaman Decl. ¶ 11, Dkt.
No. 8-3.)
New cleaning protocols and social distancing measures were put in place and
updated between March 13, 2020 through May 19, 2020. According to Respondent, FCI
Fort Dix has always maintained an adequate stock of sanitation supplies. (Id. ¶¶ 31, 32.)
None of the petitioners lodged any grievance regarding a lack of soap or cleaning supplies at

the Camp. (Dobovich Decl. ¶¶ 5-6, Dkt. No. 8.) When quarantine of the Camp ended on
May 19, 2020, a contractor was brought in to commercially disinfect and sanitize the Camp,
including inmate sleeping areas, bathrooms, Food Service areas, and all other common
areas. (Sassaman Decl. ¶ 29, Dkt. No. 8-3.) At this point, FCI Fort Dix was subject to Phase
7 of the BOP Action Plan.17
C. The Second COVID-19 Outbreak at FCI Fort Dix and the BOP’s Response
After the BOP transferred inmates from FCI Elkton who had been exposed to
COVID-19, there was a second wave of COVID-19 in the low security compound at FCI
Fort Dix from September 28, 2020 through October 29, 2020. (Pet. Dkt. No. 1 at 12-14.) No
Camp inmates were infected. (Id.) Four buses carrying a total of 298 inmates, 17 of whom

were positive for the virus, arrived at Fort Dix. (Id. at 13.) After disembarking, the infected
inmates were put in isolation in Unit 5703; those who tested negative were placed on a
quarantine floor in the same building. (Id.) Every bus was treated identically. (Id.) Within a
few weeks of the arrival of the Elkton inmates, 345 Fort Dix inmates in the low security
compound tested positive for COVID-19. (Id. at 12.) Of those infected, after all 231 inmates
in Unit 5812 were tested in October 2020, 218 inmates were positive for COVID-19. (Pet.
Dkt. No. 1 at 13.) Two orderlies who worked in Receiving and Discharge, where all the

17 Phase Seven available at https://www.bop.gov/resources/news/20200520_COVID-
19_phase_seven.jsp (last visited Aug. 26, 2021).
arriving men from Elkton were processed, lived in Unit 5812. (Id. at 14.) After 94% of the
inmates of that single unit tested positive, the BOP did not test the entire facility. (Id.)
Warden Ortiz instituted additional safeguards in October 2020. (Reiser Decl. ¶ 12,
Dkt. No. 8-2.) He cancelled all visiting and limited general population inmate movement to

obtaining grab and go meals, attending scheduled medical appointments, attending GED
classes and attending scheduled outdoor recreation. (Id. ¶¶ 12-15, Dkt. No. 8-2.) A minimal
number of inmates were permitted to work in Food Services, Commissary and Laundry.
(Id.) Inmates in quarantine or isolation did not leave their units. (Id.)
During the week of November 16, 2020, FCI Fort Dix commenced COVID-19
testing for asymptomatic staff, onsite and on a voluntary basis. (Turner-Foster Decl., Ex. 3,
Dkt. No. 8-1 at 21-22.) Symptomatic staff were prohibited from coming to work. (Id. ¶ 22,
Dkt. No. 8-1.) Warden Ortiz obtained a movement moratorium for BOP inmate transfers
from October 23 through November 23, 2020, and additional moratoriums between
December 2020 and February 17, 2021. (Reiser Decl. ¶¶ 13, 14, Dkt. No. 8-2.)

D. The Third COVID-19 outbreak at FCI Fort Dix and the BOP’s response
A third outbreak of COVID-19 occurred in the Camp beginning in December 2020.
(Pet., Dkt. No. 1 at 14-17.) Petitioners theorize that the third wave must have been caused
either by transfer of sick inmates or failures of staff to follow PPE requirements, exacerbated
by the failure to rapidly test and quarantine everyone exposed, particularly over the winter
holidays. (Id. at 14-18.) Petitioners also blame the BOP for failing to expand the use of
home confinement under the CARES Act prior to the third wave. (Id. at 18.) Instead, BOP
released only 98 out of 2800 men at Fort Dix in ten months. (Pet., Dkt. No. 1 at 18.) BOP
prioritized for release inmates who had served longer portions of their sentence, and denied
release to otherwise eligible inmates who had served shorter percentages of their sentences,
even after there was no longer any need for prioritization because all inmates had been
reviewed for release. (Id.)
During the third wave of the COVID-19 outbreak, the Camp population on

December 22, 2020, was 131 inmates, 73 in A-wing and 58 in B-wing. (Reiser Decl. ¶ 5,
Dkt. No. 8-2.) Petitioners allege that one of the kitchen workers became ill on December 22,
2020. (Pet., Dkt. No. 1 at 15.) On December 23, 2020, the correctional officer in charge of
the kitchen, who was known by inmates not to wear PPE, called out sick. (Id.) He tested
positive for COVID-19. (Id.) During this outbreak, one inmate used TRU LINCS, the
internal email system, to send Associate Warden Smith an email about his concern over a
sick inmate in his dorm. (Id.) Another inmate reported to sick call with symptoms and was
told to come back the next day. (Id.) Due to staff shortages, the correctional officers had to
work 12-hour shifts. (Id.) Outdoor recreation was cancelled. (Id. at 16.) All men from the
A-wing were tested for COVID-19 on December 28, 2020. (Id. at 16-17.) Staff did not share

the test results immediately or move the sick men to quarantine; they waited until after the
holiday weekend. (Id.) On Monday, January 4, 2021, 31 of the 66 men in the A-wing were
informed that they were infected. (Id.) They were moved that morning. (Id.)
Petitioners allege that none of the B-wing inmates were checked for fevers, although
the same two sick men had prepared their food, and there had been commingling between
the wings leading up to the A-wing lockdown. (Id.) On January 5, 2021, six inmates from B-
wing who were slated to be moved were rapid tested and confirmed positive. (Id.) The next
day, the remainder of B-wing was rapid tested and Petitioners were unaware of the results at
the time of filing the petition. (Pet., Dkt. No. 1 at 17.)
Respondent describes the “third wave” from the BOP perspective. On or about
December 24, 2020, three inmates from the Camp’s A-wing complained of COVID-19
symptoms. (Turner-Foster Decl. ¶ 6, Dkt. No. 8-1.) Because they were symptomatic, the
inmates were rapid tested using the Abbott machine. (Id.) Their rapid tests were positive,

and the inmates were moved to isolation cells in the medical building of the low security
compound for isolation. (Id.) Based on the discovery of positive inmates in A-wing, on
December 24, 2020, the remainder of A-wing inmates were placed on exposure quarantine.
(Id. ¶ 7.) All exposure quarantine inmates are tested for COVID-19 using send-out
laboratory tests [which accounts for the delay in test results and inmate transfers]. (Id. ¶ 10.)
Before the housing unit is released from exposure status, all inmates are tested again. (Id.)
As a result of the exposure quarantine testing, a total of thirty-two additional inmates from
the Camp’s A-wing tested positive. (Id.)
(Id. and Declaration of John Stinson18
(“Stinson Decl.”) Ex. B, Dkt. No. 4-2.)

The positive inmates were all placed in isolation, while the negative inmates
remained in an exposure quarantine. (Id. ¶ 11.) Based on the positive cases in the A-wing,
Dr. Turner Foster advised the administration to lock the doors between the A-wing and B-
wing. (Id.) On or about January 5, 2021, two inmates from the Camp’s B-wing reported
COVID-19 symptoms. (Id. ¶ 12.) They were rapid tested and confirmed positive. (Id.)
Similar to the A-wing, the inmates who tested negative were placed in exposure quarantine
and were tested using send-out laboratory tests. (Turner-Foster Decl. ¶ 12, Dkt. No. 8-1.) As
a result of the laboratory tests, an additional 25 B-wing inmates tested positive. (Id.) Thus,

18 Petitioners’ medical records were filed under seal. (Stinson Decl., Dkt. No. 4.)
the Camp saw a total of 62 positive inmates in December 2020 and January 2021. (Id. ¶ 13.)
Based on this number of infections, and the need for inmates who were not sick to remain in
exposure quarantine, the BOP designated the B-wing as an isolation unit for positive
inmates, and the A-wing became the exposure quarantine for negative inmates. (Id. ¶ 13,

Dkt. No. 8-1.) Using medical safety protocols, BOP implemented this reorganization. (Id.)
According to Dr. Turner-Foster but disputed by Petitioners, all inmates in isolation
quarantine have their vitals assessed daily, and inmates in exposure quarantine are screened
for COVID-19 symptoms and have their temperature taken daily. (Id. ¶ 14.) If an inmate
required additional medical care or treatment, it would be addressed at that time. (Id.)
Petitioners contest that these policies were enforced during the third wave of COVID at FCI
Fort Dix. (Reply Brief, Dkt. No. 16 at 3, 4, 7, 10-12.)
On or about January 15, 2021, sixty-one inmates from the Camp were deemed
recovered from COVID-19, in accordance with the CDC guidelines. (Id. ¶ 15.) The
recovered inmates remained separated from the A-wing. (Id.) Staff were required to wear a

mask that covers their mouths and noses. (Id.) On January 22, 2021, a Camp inmate who
had transferred to an outside hospital earlier in the month passed away. (Id. ¶ 16.) This was
the first COVID-19 related-death from FCI Fort Dix. (Id.) On January 29, 2021, all A-wing
quarantined inmates’ test results were negative, and the A-wing was removed from exposure
quarantine. (Id. ¶ 17.) The B-wing was slated to return to normal operation on February 5,
2021, after a full isolation and recovery period. (Id.) The A-wing and B-wings were still
instructed to remain separated. (Id.) As of February 2, 2021, FCI Fort Dix had a total of 175
COVID-19 positive inmates, all in the low security facility. (Turner-Foster Decl. ¶ 18, Dkt.
No. 8-1.) A COVID-19 positive inmate is defined as an inmate who has tested positive and
has not yet recovered. (Id.)
Dr. Turner Foster described a testing policy to test every inmate in quarantine,
whether in intake quarantine, release quarantine, or exposure quarantine. (Id. ¶ 19, Dkt.

No. 8-1.) As of February 2, 2021 [the date of Dr. Turner-Foster’s declaration], every general
population inmate housed in the following housing units had been tested under exposure
quarantine [after a symptomatic inmate was confirmed positive]: Units 5802, 5812, 5841,
and 5852 (West Compound); Units 5702, 5703, 5711, 5751, 5741, and 5752; and the Camp.
(Id. ¶ 20.) The only general population unit where every inmate had not been tested was
Unit 5811, because no inmates assigned to that unit met the testing categories (i.e.,
symptomatic, transfers, etc.) (Id.) In all quarantine units, the inmates are medically
monitored daily and tested for COVID-19. (Id.)
As of February 2, 2021, 107 staff members had contracted COVID-19 and 104 had
recovered. (Id. ¶ 21.) FCI Fort Dix received the first Pfizer COVID-19 vaccines on January

19, 2021. (Id. ¶ 23.) In accordance with the BOP Clinical Practice Guideline, staff were
vaccinated on January 19 and 20, 2021. (Id.; Ex. 5, Dkt. No. 8-1 at 25-57.) Prior to that a
number of staff, including all those in the medical department, received their first
vaccination through outside sources. (Id. ¶ 24.) After staff received the vaccine, FCI Fort
Dix had 182 remaining vaccines. (Id. ¶ 25.) Inmates that met CDC priority level one
(inmate healthcare workers) and CDC priority level two inmates in Units 5811 and 5802
were offered the vaccine. (Id.) Two Camp inmates were vaccinated with remaining
vaccines. (Turner-Foster Decl. ¶ 26, Dkt. No. 8-1.)
(Id.)
In response to Petitioners allegations that transferred inmates were recklessly
introduced into the COVID-19 outbreak in the Camp between December 29, 2020, and
January 5, 2021, Respondent submits that seven inmates were transferred to the Camp in
accordance with quarantine guidance. (Reiser Decl. ¶ 7, Dkt. No. 8-2.) At that time, there

were no COVID cases in the B-wing, and four inmates who transferred in between
December 29, 2020, and January 2, 2021, had been quarantined prior to transfer. (Id.)
However, the Court notes the B-wing inmates had not been tested until several inmates
were symptomatic on January 5, 2021, in accordance with the policy. (Turner-Foster Decl.
¶ 12, Dkt. No. 8-1.) On January 5, 2021, the A-wing became a quarantine unit for inmates
who had been exposed but tested negative, and this allowed for the transfer of two new
incoming inmates and one inmate released from the SHU. (Reiser Decl. ¶ 8, Dkt. No. 8-2.)
These inmates tested into exposure quarantine with a negative test and out of quarantine
with a negative test, as do all inmates under the COVID quarantine guidance procedure.
(Id.)

E. Post-Petition Changes at FCI Fort Dix
Petitioners filed a reply brief, received on March 18, 2021. (Reply Brief, Dkt. No.
16.) They assert that this case is not just about the conditions in FCI Fort Dix, it is about the
BOP’s misinterpretation and misapplication of the CARES Act. (Id. at 2.) Petitioners,
however, reallege that the conditions are so extreme as to violate the Eighth Amendment
and that the following occurred after submission of their petition. (Id.)
As to the third wave of COVID-19 at FCI Fort Dix, Petitioners allege, based on what
appears to be a fax transmission, that Dr. Turner-Foster received the COVID-19 test results
for the A-wing from Quest Diagnostics on December 31, 2020, but it wasn’t until January 4,
2021, that the sick inmates were removed to Unit 5851. (Reply Brief, Dkt 16 at 3 and Ex. 1,
Dkt No. 17 at 2-3.) Further, according to Petitioners, the sick men were allowed to speak to
quarantined men who were awaiting transfer to the Camp. (Id. at 3.) After the first week in
isolation, only the men with severe symptoms continued to receive twice daily medical

checks. (Id.) B-wing test results were returned on January 11, 2021, and 23 inmates were
positive. (Id. at 4.) Thus, the B-wing became the recovery quarantine and the A-wing
became exposure quarantine. (Id.) The sick inmates remained in B-wing, together with
those transferred back from Unit 5851. (Id.) An error was soon discovered that five positive
inmates had been transferred to the A-wing, where they spent 24 hours before transfer back
to the B-wing. (Id.)
On January 20, 2021, the number of sick inmates at FCI Fort Dix was 797. (Id.)
When the corrections officer who had previously worked in the kitchen returned from sick
leave on January 20, 2021, he continued not to wear a mask. (Id.) Also on that day, four
inmates were vaccinated. (Id.)

. (Id.) On
January 23, 2021, a series of inspections began in the Camp, and the broken faucets were
replaced for the first time in a year, and new washing machines were delivered. (Id. at 5.)
On February 1, 2021, 175 of 192 inmates in Unit 5703 in the low security facility
tested positive. (Id. at 6.) Also in February 2021, the Camp barbershop opened and A-wing
inmates cut hair for all Camp inmates. (Id.) More hand sanitizers were installed and
superficial maintenance measures, like covering mold, were taken before the new warden
did an inspection on February 12, 2021. (Reply Brief, Dkt. No. 16 at 7.) Unit 5851, where
fifteen men had lived for one month, had only one shower, one telephone, one sink and one
toilet. (Id.) On February 25, 2021, the number of COVID-19 positive inmates increased to
197. (Id.) On February 27, 2021, the Camp lockdown ended. (Id.)
On March 4, 2021, at a town hall meeting, inmates were strongly encouraged to take
the vaccine. (Id. at 9.) Petitioners allege that only one third of the staff had been vaccinated.

(Id.) Respondent explained that those numbers did not include staff who were vaccinated
offsite, but Respondent did not indicate how many more were vaccinated. (Suppl. Reiser
Decl. ¶ 18, Dkt. No. 24-1.) Petitioners also complained of the lack of medical care for Camp
inmates, alleging that Dr. Turner-Foster visited the Camp barely once a month, chronic care
protocols were delayed by more than a year, and basic care was “a fantasy.” (Id. at 18.) In
response to the original petition, Dr. Turner-Foster stated:
[a] Registered Nurse runs sick call sign-up at the Camp
Monday through Friday. The Nurse triages the complaints, and
any priority cases are discussed with the Nurse Practitioner or
me, as the assigned Camp physician. All other routine sick call
appointments are scheduled for a later date. This procedure is
separate from daily checks required of inmates on exposure
quarantine and isolation….

(Turner-Foster Decl. ¶ 4, Dkt. No. 8-1.)

F. The Petitioners’ Characteristics
1. Goodchild
Based on the submissions of the parties, and taking judicial notice19 of the dockets in
Petitioners’ sentencing courts, the Court makes the following findings of fact concerning

19 Federal Rule of Evidence 201(b)(2) provides “[t]he court may judicially notice a fact that
is not subject to reasonable dispute because it: … can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” See e.g. S. Cross Overseas
Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (“we
may take judicial notice of another court's opinion—not for the truth of the facts recited
therein, but for the existence of the opinion, which is not subject to reasonable dispute over
its authenticity.”)
Petitioners’ characteristics, relevant to their claims for relief. Goodchild, at the time of filing
the petition, was a 58-year-old
(Pet, Dkt. No. 1 at 2; Stinson Decl., Ex. A, Dkt. No. 4-1.) He is serving a 102-month sentence
for a non-violent crime, a 2019 conviction on forty-eight counts of wire fraud, ten counts of

money laundering, a count of aggravated identity theft, and six counts of tax fraud. (Id. at 2;
Declaration of Corrie Dobovich (“Dobovich Decl.”), Ex. 1, Dkt. No. 8 at 8-9); United States
v. Goodchild, 17-cr-00549-GAM (E.D. Pa. Oct. 21, 2019) (ECF No. 94).20

The
parties dispute whether Goodchild received daily medical screenings and temperature checks
while in exposure quarantine between December 24, 2020, and January 26, 2021. (Turner-
Foster Decl. ¶ 14; Reply Brief, Dkt. No. 16 at 10; Ex. 3, Dkt. No. 17 at 9-13.)
Respondent submits that since Goodchild arrived in BOP custody, he has not

pursued any administrative remedies, nor has he submitted any requests for compassionate
release to the BOP. (Dobovich Decl. ¶ 5, Dkt. No. 8; Reiser Decl. ¶ 19, Dkt. No. 8-2.)
Goodchild, however, submitted to the Court copies of the following: (1) a letter to Warden
Ortiz dated April 17, 2020, seeking release to home confinement due to his increased health
risks to infection with COVID-19, and across this letter was written “you have served 3.8%
of your sentence, your release date is 3-27-2022,” which Goodchild alleges was written by
his case manager; (2) a typed, undated note “Please see your Case Manager regarding your

20 Available at www.pacer.gov.
eligibility for Home Confinement under the CARES Act.”; (3) a letter dated April 29, 2020,
from Goodchild to Warden Ortiz, seeking release under the CARES Act; (4) a letter dated
May 14, 2020, from Goodchild to Warden Ortiz, seeking compassionate release under 18
U.S.C. § 3582(c)(1)(a)(i); and (5) an “Inmate Request to Staff Response” dated May 22,

2020, directing Goodchild to specify one of the circumstances for compassionate release
under BOP Program Statement 5050.50 that would permit his compassionate release.
(Reply Brief, Ex. 4, Dkt. No. 17 at 14-31.) Goodchild also submitted a handwritten note
that says “Are you serious?” which he alleges was Case Manager Wright’s response to his
request for release to home confinement. (Id., Dkt. No. 17 at 15.) Goodchild did not seek a
reduction in sentence under the First Step Act in his sentencing court. See United States v.
Goodchild, 17-cr-00549-GAM (E.D. Pa.)21
2. Soto-Concepcion
Soto-Concepcion was a 38-year-old man at the time of filing the petition,

(Pet., Dkt. No. 1 at 2; Stinson Decl., Ex. B., Dkt. No. 4-2.) His
imprisonment arose out of his participation in a large drug-trafficking operation. See United
States v. Soto-Concepcion, 15-cr-00181-JEJ (M.D. Pa.) (Dkt. No. 1.)22 He pled guilty and
on November 17, 2017, he was sentenced to a 144-month term of imprisonment. See id.
(Dkt. No. 650.) Assuming that Soto-Concepcion receives all available good time credit, his
projected release date is September 5, 2025. (Dobovich Decl., Ex. 3, Dkt. No. 8 at 20.)

21 Available at www.pacer.gov.
22 Available at www.pacer.gov.
Respondent contends Soto-Concepcion has a “Low” PATTERN score, but
Petitioners submit that this calculation is wrong, his PATTERN score is “Minimum,”
making him eligible for home confinement under the CARES Act. (Reiser Decl. ¶ 22, Ex.
11, Dkt. No. 8-2 at 56-60; Reply Brief, Dkt. No. 16 at 10; Ex. 5, Dkt. No. 17 at 44-45.)

Because Petitioners’ calculation of Soto-Concepcion’s PATTERN score was submitted with
their reply brief, Respondent did not have an opportunity to explain why it differs from the
BOP’s calculation.

On December 24, 2020, he was placed in
exposure quarantine after other A-wing inmates tested positive. (Turner-Foster Decl. ¶ ¶ 7,
10, Dkt. No. 8-1; Stinson Decl., Ex. B at 4-2.)

(Turner-Foster Decl. ¶ 14; Stinson

Decl., Ex. B, Dkt. No. 4-2.)
Respondent maintains that Soto-Concepcion has never submitted an administrative
remedy request during his time at FCI Fort Dix (Dobovich Decl. ¶ 5, Dkt. No. 8; Ex. 3,
Dkt. No. 8 at 16-20), but Petitioners correctly note that James Reiser, in his declaration in
support of Respondent’s Answer, stated "Eliezer Soto-Concepcion … submitted a request
[to Warden Ortiz and others] on or about April 13, 2020….” (Reiser Decl. ¶ 17, Dkt. No. 8-
2.) This was a request for reduction in sentence pursuant to the First Step Act, 18 U.S.C. §
3582(c)(1)(A). (Id., Ex. 9, Dkt. No. 8-2 at 47-52.) Warden Ortiz denied the request on May
25, 2020, stating, in part:
[m]edical staff at FCI Fort Dix advised, based upon the
guidelines for the Center for Disease Control and Prevention,
you are at higher risk for severe COVID-19 illness due to your
medical issues. However, your medical issues are properly
managed by medication and your overall medical condition is
stable. Furthermore, you do not have a terminal illness and you
are both, fully ambulatory and capable of carrying out your
institutional daily life activities without assistance.
(Reiser Decl., Ex. 9, Dkt. No. 8-2 at 52.) On January 4, 2021, Soto-Concepcion filed a
motion for reduction in sentence with his sentencing court. United States v. Soto-
Concepcion, 15-cr-00181-JEJ (M.D. Pa.) ( Dkt. No. 928). Petitioner was appointed counsel,
and his motion remains pending as of August 26, 2021. Id. (Dkt. No. 961.)
3. Abreu-Feliz
Abreu-Feliz alleges that, at the time of filing the petition, he was a 38-year-old
(Pet., Dkt. No. 1
at 3.)
(Stinson Decl., Ex. C, Dkt. No. 4-3.) Abreu-Feliz is serving a ten-year sentence for
trafficking heroin and methamphetamine. (Dobovich Decl., Ex. 2, Dkt. No. 8 at 11-15.)
Assuming he receives all good conduct time, he is scheduled for release on September 30,
2023. (Id.) He has served more than 58% of his sentence and has a “Low” PATTERN score
that precludes his eligibility for release to home confinement under the CARES Act. (Reiser
Decl. ¶ 23, Dkt. No. 8-2 at 61-63.)
. (Stinson Decl., Ex. C, Dkt. No. 4-3.)

(Turner-Foster Decl. ¶ 26; Stinson Decl., Ex. C,
Dkt. No. 4-3.)
. (Id., see also Reply Brief, Dkt No. 16 at 4, 30-31.)

(Suppl. Reiser Decl. ¶ 23, Dkt. No. 24-1; Ex. 4, Dkt. No. 25 at 1-3.)
Abreu-Feliz submitted a written request for compassionate release to Warden Ortiz

in May 2020. (Reiser Decl. ¶ 18, Dkt. No. 8-2; Exs. 9 and 10, Dkt. No. 8-2 at 47-55.)
Respondent denied this request because Abreu-Feliz failed to include a release plan. (Id.) He
never resubmitted his request with a release plan. (Id.) On June 3, 2020, Abreu-Feliz filed
his first motion for compassionate release/RIS with his sentencing court. United States v.
Abreu-Feliz, 15-cr-00211-EGS-1 (E.D. Pa.) (Dkt. No. 226). His sentencing court denied
relief. Id. (Dkt. No. 232). On January 5, 2021, Abreu-Feliz filed a second compassionate
release/RIS motion with his sentencing court. Id. (Dkt. No. 234). On June 14, 2021, his
sentencing court denied relief. Id., (Dkt. No. 256).
4. Winans
Winans was a 38 year-old-man at the time the petition was filed,

(Pet., Dkt. No. 1 at 3; Stinson Decl., Ex. D, Dkt No. 4-
4.) He is serving a 165-month term of imprisonment for wire fraud, imposed on February
27, 2013. (Dobovich Decl., Ex. 4, Dkt. No. 8 at 25.) Assuming he receives all good conduct
time, he is scheduled for release on February 8, 2025, and has served more than 56% of his
sentence. (Id.; Reply Brief, Dkt. No. 16 at 24.) Winans has a minimum PATTERN score.
(Reiser Decl. ¶ 24, Dkt. No. 8-2. )

(Answer, Dkt. No. 7 at 16; Stinson Decl., Ex. D,
Dkt. No. 4-4.) Winans never submitted a qualifying administrative remedy request seeking
transfer to home confinement. (Reiser Decl. ¶ 19, Dkt. No. 8-2; Dobovich Decl. ¶ 6, Ex. 4,
Dkt. No. 8 at 21-23.) His only attempt to seek such relief was rejected as procedurally
improper, and he never corrected the error. (Dobovich Decl. ¶ 6, Dkt. No. 8.) Instead, he

tried to bypass the Warden and submit his home confinement request to the Northeast
Regional Office, but it was rejected as improper. (Id.) Petitioners submit that Winans filed
an administrative remedy request on December 24, 2020, and never received a response.
(Reply Brief, Dkt. No. 16 at 12.) Winans filed a compassionate release/RIS motion with his
sentencing court on May 12, 2021. United States v. Winans, 12-cr-20598-SFC (E.D. Mich.,
Dkt. No. 46.) The motion was denied by Order dated July 20, 2021. Id. (Dkt. No. 55).
V. DISCUSSION
A. Habeas Jurisdiction Under 28 U.S.C. § 2241
Petitioners assert jurisdiction under 28 U.S.C. § 2241 for two types of claims; first,
conditions of confinement in the FCI Fort Dix Camp violate the Eighth Amendment, and

the only adequate remedy is release; and second, that the BOP misinterpreted the CARES
Act by denying their early release to home confinement based on percentage of time-served.
“The plaintiff has the burden of persuasion to convince the court it has jurisdiction.” Gould,
220 F.3d at 178 (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.
1991)). “A claim may be dismissed under Rule 12(b)(1) only if it ‘clearly appears to be
immaterial and made solely for the purpose of obtaining jurisdiction’” Id. (internal
quotations omitted in Gould).23

23 In habeas cases, the Federal Rules of Civil Procedure are applicable when they do not
conflict with the habeas statutes or rules. Mayle v. Felix, 545 U.S. 644, 654 (2005).
1. Eighth Amendment conditions of confinement claim
a. The parties’ arguments
In support of their petition, Petitioners argue that Respondent has been deliberately
indifferent to their health by confining them in a locked dormitory with other inmates

infected with COVID-19, despite Respondent’s ability to release them to home confinement
under the CARES Act. (Pet., Dkt. No. 1 at 21-23.) Petitioners contend that their immediate
release is the only remedy for the Eighth Amendment violation because Respondent’s
mitigation policies have failed, and, therefore, habeas jurisdiction is appropriate. (Id. at 23.)
Specifically, they argue
[d]ue to the conditions at Fort Dix Camp, Petitioners are not able
to take steps to protect themselves - such as social distancing,
using hand sanitizer, washing their hands regularly, and
disinfecting their surroundings - and the government has not
provided adequate protections. Covid-19 has rapidly spread
through the Camp twice so far, making the ability to protect
oneself even more impossible.
(Pet., Dkt. No. 1 at 24.) Based on the alleged extreme risk from COVID-19 based on
Petitioners’ ages and medical conditions, they seek enlargement of custody pending
determination of their claims. (Id. at 25.)
Respondent maintains that jurisdiction under § 2241 is appropriate only when a
petitioner challenges the fact or duration of custody. (Answer, Dkt. No. 7 at 38-39.)
Recognizing that the Supreme Court has left open the possibility of habeas jurisdiction over
a conditions of confinement claim, and the Third Circuit has found jurisdiction over such a
claim by civil immigration detainees subjected to the risk of COVID-19 infection,
Respondent contends that such jurisdiction should not extend to convicted prisoners,
primarily because they have other avenues for relief, such as reduction of sentence under the
First Step Act, and release to home confinement under the CARES Act. (Id. at 40-43.)
Further, Respondent contends that habeas relief is not appropriate because injunctive relief
could alter Petitioners’ conditions of confinement and preclude the necessity of release to
remedy the alleged (but not conceded) Eighth Amendment violation. (Id. at 44-45.)

In their reply brief, Petitioners argue that the distinction between civil immigration
detainees and convicted prisoners is meaningless, and, therefore, habeas jurisdiction should
extend to their conditions of confinement claims. (Reply Brief, Dkt. No. 16 at 20.)
Petitioners submit they should not be required to seek individual relief through other
extensive procedures during a pandemic. (Id.) They allege Respondent was deliberately
indifferent to their health during the first wave of infections by overcrowding one dormitory
when alternatives existed, by not performing any mass testing of inmates until three weeks
after the first inmate tested positive, by holding inmates in prerelease quarantine longer than
they would have been incarcerated absent the quarantine, by conducting only four COVID
tests at FCI Fort Dix between May 7, 2020, and September 28, 2020, and, during the third

wave of outbreak, by delaying testing over the winter holidays for half of the inmates in the
Camp, and throughout the pandemic, by not releasing eligible prisoners under the CARES
Act. (Reply Brief, Dkt. No. 16 at 22-24.) In their emergency supplement to the petition,
Petitioners assert that Respondent was again deliberately indifferent to their health by
housing all 153 Camp inmates in the A-wing on April 28, 2021, while housing very few new
inmates in the B-wing. (Petrs’ Emergency Suppl. Pet., Dkt. No. 22 at 1-2.)
Respondent denies deliberate indifference to Petitioners’ health, noting that every
inmate has been offered a vaccine at this point, and the BOP has implemented
comprehensive health and safety protocols to address the Covid-19 pandemic. (Respt’s
Suppl. Brief, Dkt. No. 24 at 8-10.)
b. Standard of law
The Third Circuit has not yet determined whether habeas jurisdiction under 28

U.S.C. § 2241 extends to an Eighth Amendment conditions of confinement claim by
convicted prisoners based on the threat of COVID-19 infection. Recently, the Third Circuit
held that civil immigration detainees could challenge the constitutionality of their
conditions of confinement in a habeas petition under § 2241 based on the extraordinary
circumstances of the COVID-19 pandemic. Hope v. Warden York Cty. Prison, 972 F.3d
310, 324 (3d Cir. 2020). The Third Circuit noted habeas jurisdiction over conditions of
confinement claims are limited to “extreme cases” or “extraordinary circumstances.” Id.
(quoting Ali v. Gibson, 572 F.2d 971, 975 n. 8 (3d Cir. 1978), superseded by statute on
other grounds as recognized in Callwood v. Enos, 230 F.3d 627, 633 (3d Cir. 2000). The
Third Circuit stated,

as the Supreme Court has instructed: “habeas corpus is an
extraordinary remedy whose operation is to a large extent
uninhibited by traditional rules of finality and federalism, its
use has been limited to cases of special urgency, leaving more
conventional remedies for cases in which the restraints on
liberty are neither severe nor immediate.” Hensley v. Mun. Court,
San Jose Milpitas Judicial Dist., 411 U.S. 345, 351, 93 S.Ct. 1571,
36 L.Ed.2d 294 (1973).

c. Analysis
It is clear that Petitioners have alternatives to the extraordinary remedy of releasing
convicted prisoners before expiration of their sentences, based solely on their conditions of
confinement. Here, Petitioners blame the spread of the virus in the Fort Dix Camp on (1)
the slow implementation of mitigation policies, such as having inadequate supplies of soap
at the beginning of the first outbreak; (2) the lack of six feet social distance; (3) inadequate
testing policies; and (4) instances where staff failed to wear masks as required. Although six
feet social distance is not possible in the Camp, there was other injunctive relief that could
have reduced the spread of COVID-19, including more expansive testing requirements,

strict enforcement of the mask requirement, and use of empty buildings for greater social
distancing (not sought by Petitioners here). Further, insofar as Petitioners alleged they
received inadequate medical care, prospective injunctive relief is available to prisoners. See
Farmer v. Brennan, 511 U.S. 825, 845 (1994) (quoting Helling v. McKinney, 509 U.S. 25,
33–34 (1993) (“a subjective approach to deliberate indifference does not require a prisoner
seeking ‘a remedy for unsafe conditions [to] await a tragic event [such as an] actua[l]
assaul[t] before obtaining relief.’”) Thus, in addition to the mitigation efforts already in
place, injunctive relief could have remedied the alleged Eighth Amendment violation. See
Wragg v. Ortiz, 462 F. Supp. 3d 476, 505 (D.N.J. 2020) (holding court lacked jurisdiction
under § 2241 over conditions of confinement claim related to spread of COVID-19 because

alternative relief was available); Whiteside v. Fort Dix Fed. Prison, No. CV 20-5544 (NLH),
2021 WL 2935363, at *4 (D.N.J. July 13, 2021) (same). As of June 2020, “seven of the ten
circuits that have addressed [habeas jurisdiction over a prisoner’s conditions of confinement
claim] in a published decision have concluded that claims challenging conditions of
confinement cannot be brought in a habeas petition.’”) Hallinan v. Scarantino, 466 F. Supp.
3d 587, 601 (E.D.N.C. 2020) (quoting Wilborn v. Mansukhani, 795 F. App'x 157, 163 (4th
Cir. 2019) (collecting cases)). Further, conditions have changed in the Camp since the
petition was filed, all Camp inmates have been offered a vaccine and there are currently no
inmates with COVID-19, but five staff who are positive.24 See Hope, 972 F.3d at 330 (noting
the district court, in addressing conditions of confinement, failed to consider recent efforts in
the prison to reduce spread of COVID-19).
Unlike the situation faced by civil immigration detainees confined during the

pandemic, convicted prisoners may seek compassionate release via a reduction in sentence
from their sentencing courts, based on extraordinary circumstances. See 18 U.S.C. §
3582(c)(1)(A)(i). Further, although Petitioners challenge the manner in which the BOP has
exercised its discretion under the CARES Act, it remains another avenue for release from
alleged unconstitutional conditions. These alternative remedies address important public
safety and rehabilitation factors that do not come into play when a court grants habeas relief
based solely on conditions of confinement. Release of convicted prisoners without
consideration of these factors should be limited to extraordinary situations where no other
remedy is available. See Hope, 972 F.3d at 333 (noting “the Petitioners’ quest for nothing
short of release appeared to leave little room for a remedy short of the most extreme one[.]”)

For these reasons, this Court does not find jurisdiction under § 2241 under the
circumstances presented here. The Court will, in the alternative, address the merits of
Petitioners Eighth Amendment habeas claims in Section IV(C ) below.
2. Challenge to the BOP’s Statutory Interpretation of the CARES Act
a. The parties’ arguments
Petitioners challenge the BOP’s statutory interpretation of the CARES Act, asserting
the BOP’s time-served eligibility requirement is contrary to the Attorney General’s

24 Available at https://www.bop.gov/coronavirus/ (last visited Aug. 27, 2021).
memoranda providing guidance for extended release to home confinement under 18 U.S.C.
§ 3624(c)(2). This Court has previously stated,
[b]efore the CARES Act was passed, 18 U.S.C. § 3624(c)(2)
provided the BOP with the authority to “place a prisoner in
home confinement for the shorter of 10 percent of the term of
imprisonment of that prisoner or 6 months.” 18 U.S.C. §
3624(c)(2) (effective July 19, 2019). As part of the CARES Act,
Congress sought to address the spread of the coronavirus in
prisons by permitting BOP to expand the use of home
confinement under § 3624(c)(2). See Pub. L. No. 116-36, §
12003(b)(2). Upon direction of the Attorney General, Section
12003(b)(2) of the CARES Act temporarily suspends the
limitation of home confinement to the shorter of 10 percent of
the inmate's sentence or 6 months.

By memorandum dated March 26, 2020, the Attorney General
directed the BOP to “prioritize the use of [its] various statutory
authorities to grant home confinement for inmates seeking
transfer in connection with the ongoing COVID-19 pandemic.”
The Attorney General specifically directed the BOP to consider
the totality of the circumstances of each inmate, the statutory
requirements for home confinement, and a non-exhaustive list
of discretionary factors including: the age and vulnerability of
the inmate; the security level of the facility holding the inmate;
the inmate's conduct while incarcerated; the inmate's score
under the Prisoner Assessment Tool Targeting Estimated Risk
and Needs (“PATTERN”); whether the inmate has a
demonstrated and verifiable reentry plan that will prevent
recidivism and ensure public safety (including verification that
the conditions under which the inmate would be confined upon
release would present a lower risk of contracting COVID-19
than the inmate would face at their current facility); and the
inmate's crime of conviction.

On April 3, 2020, the Attorney General exercised authority
under the CARES Act to further increase home confinement.
The Attorney General authorized the Director of the BOP to
immediately maximize transfers to home confinement of all
appropriate inmates held at FCI Oakdale, FCI Danbury, FCI
Elton, and other similarly situated Bureau facilities where
COVID-19 was materially affecting operations.

On April 5, 2020, the BOP gave the following guidance on
COVID-19 and home confinement:
Inmates do not need to apply to be considered for home
confinement. Case management staff are urgently
reviewing all inmates to determine which ones meet the
criteria established by the Attorney General. The
Department has also increased resources to review and
make appropriate determinations as soon as possible.
While all inmates are being reviewed for suitability, any
inmate who believes they are [sic] eligible may request
to be referred to Home Confinement and provide a
release plan to their Case Manager. The BOP may
contact family members to gather needed information
when making decisions concerning Home Confinement
placement.

Importantly, on April 15, 2020, the BOP issued additional
guidance regarding home confinement under the CARES Act,
removing the requirement that the inmate serve up to two-
thirds of the sentence imposed before eligibility for home
confinement. The new criteria include the following:

a. Primary or Prior Offense is not violent;
b. Primary or Prior Offense is not a sex offense;
c. Primary or Prior Offense is not terrorism;
d. No detainer;
e. Mental Health Care Level is less than IV;
f. PATTERN (First Step Act tool used to determine risk
of recidivism) is Minimum;
g. No incident reports in past 12 months;
h. U.S. Citizen; and
i. Viable Release Plan.

An inmate's Unit Team evaluates an inmate to make a
recommendation as to whether release to home
confinement is appropriate. If an inmate is deemed
appropriate for home confinement, the Unit Team will
forward its recommendation to the Warden and then to
the Residential Reentry Manger for a home confinement
date in the inmate's release district. If an inmate is
granted home confinement, he or she will be
quarantined for a 14-day period prior to transfer, based
on the Attorney General's guidance.

Gallo v. Ortiz, No. CV 20-16416(RMB), 2021 WL 571600, at *2–3 (D.N.J. Feb. 16, 2021)
(quoting Furando v. Ortiz, No. CV 20-3739(RMB), 2020 WL 1922357, at *2–3 (D.N.J. Apr.
21, 2020), reconsideration denied, No. CV 20-3739(RMB), 2020 WL 3264161 (D.N.J. June
17, 2020) (internal docket citations and footnotes omitted); see also United States Attorney
General, Memorandum for the Director of BOP (Mar. 26, 2020);25 April 3, 2020
Memorandum.26

Respondent contends that the protection from the vaccine obviates the need for
transfer to home confinement under the CARES Act. (Respt’s Suppl. Brief, Dkt. No. 24 at
11.) Moreover, courts lack jurisdiction to review BOP’s discretionary decisions regarding
home confinement. (Id. at 12.) The Administrative Procedure Act, pursuant to 5 U.S.C. §
701(a)(2), does not provide a basis for review of BOP determinations under the CARES Act
because CARES Act determinations are committed to agency discretion. (Id.)
b. Analysis
Courts have jurisdiction under § 2241 to address claims that a prisoner is in custody
in violation of a federal statute based on misinterpretation of a federal statute.27 Gallo v.
Ortiz, No. CV 20-16416(RMB), 2021 WL 571600, at *2 (D.N.J. Feb. 16, 2021) (citing

Cheek v. Warden of Fed. Med. Ctr., No. 20-10712, 2020 WL 6938364, at *2–3 (5th Cir.
Nov. 24, 2020) (“A challenge to the BOP's or Attorney General's interpretation of the

25 Available at
https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf (last visited
Aug. 27, 2021).

26 Available at https://www.justice.gov/file/1266661/download (last visited Aug. 27,
2021).

27 Respondent argues that Petitioners have failed to exhaust administrative remedies for
their CARES Act claims. (“[E]xhaustion is not required with regard to claims which turn
only on statutory construction”) Coleman v. U.S. Parole Comm'n, 644 F. App'x 159, 162
(3d Cir. 2016) (citing Harris v. Martin, 792 F.2d 52, 54 n. 2 (3d Cir. 1986.))
[CARES Act] would make judicial review appropriate”); Valenta v. Ortiz, No. CV 20-3688
(NLH), 2020 WL 2124944, at *2 (D.N.J. May 5, 2020) (“Petitioner's argument that he is in
custody of the United States in violation of the CARES Act fits within th[e] definition [of 28
U.S.C. § 2241(c)(1), (3).”] ) Courts must interpret the words in a statute “consistent with

their ‘ordinary meaning ... at the time Congress enacted the statute.’” Wisconsin Cent. Ltd.
v. United States, 138 S. Ct. 2067, 2070 (2018) (quoting Perrin v. United States, 444 U.S. 37,
42 (1979)). If there is no ambiguity in the statutory term, the analysis ends. See Epic Sys.
Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (“deference [to an agency’s interpretation of a
statute] is not due unless a ‘court, employing traditional tools of statutory construction,’ is
left with an unresolved ambiguity”) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 843, n. 9 (1984)).
The relevant language in the CARES Act, PL 116-136, 134 Stat 281, SEC.
12003(b)(2), provides:
(2) HOME CONFINEMENT AUTHORITY.—During the
covered emergency period,28 if the Attorney General finds that
emergency conditions will materially affect the functioning of
the Bureau, the Director of the Bureau may lengthen the
maximum amount of time for which the Director is authorized
to place a prisoner in home confinement under the first
sentence of section 3624(c)(2) of title 18, United States Code, as
the Director determines appropriate.

28 The CARES Act, PL 116-136, March 27, 2020, 134 Stat 281 provides:
the term “covered emergency period” means the period beginning
on the date on which the President declared a national emergency
under the National Emergencies Act (50 U.S.C. 1601 et seq.) with
respect to the Coronavirus Disease 2019 (COVID–19) and ending
on the date that is 30 days after the date on which the national
emergency declaration terminates.
The Attorney General, in his April 3, 2020 memorandum, found that emergency conditions
related to the COVID-19 pandemic materially affected the functioning of the Bureau of
Prisons, thus triggering the home confinement authority in the CARES Act. See Cheek, 835
F. App'x at 740 (discussing the CARES Act).

The Attorney General provided eligibility guidance for the BOP, but the statute
unambiguously places discretion to determine when it is appropriate to exceed a federal
prisoner’s maximum term of home confinement with the Director of the Bureau of Prisons,
not the Attorney General. Accord Coburn v. Spaulding, No. 3:20-CV-01389, 2021 WL
3026851, at *3 (M.D. Pa. June 15, 2021), report and recommendation adopted sub nom.
Coburn v. Spaulding, No. CV 3:20-1389, 2021 WL 2678706 (M.D. Pa. June 30, 2021)
(collecting cases). Moreover, in his March 26, 2020 memorandum, the Attorney General
stated the list of factors to consider was non-exhaustive and discretionary. In the April 3,
2020 memorandum, the Attorney General urged the BOP to maximize transfers to home
confinement for appropriate prisoners, but did not alter the previous guidance on eligibility,

leaving discretion with the BOP. For these reasons, Petitioners’ challenge to the BOP’s
statutory interpretation fails, and the Court denies habeas relief on this basis.
B. Additional Assertions of Jurisdiction
The Court liberally construes the petition as raising claims under the APA, challenging the
BOP’s denial of extended home confinement to Petitioners under the CARES Act as
arbitrary and capricious. The Supreme Court has succinctly explained,
[t]he Administrative Procedure Act embodies a “basic
presumption of judicial review,” Abbott Laboratories v. Gardner,
387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and
instructs reviewing courts to set aside agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A). Review is not
available, however, “to the extent that” a relevant statute
precludes it, § 701(a)(1), or the agency action is “committed to
agency discretion by law,” § 701(a)(2).

Dep't of Com. v. New York, 139 S. Ct. 2551, 2567 (2019). In this case § 701(a) precludes
judicial review. “[T]he plain language of [18 U.S.C. § 3625] specifies that the judicial review
provisions of the APA, 5 U.S.C. §§ 701-706, do not apply to ‘any determination, decision,
or order’ made pursuant to 18 U.S.C. §§ 3621-3624.” Reeb v. Thomas, 636 F.3d 1224, 1227
(9th Cir. 2011). Extended home confinement under the CARES Act falls under § 3624(c),
and is thus exempted from judicial review. Furthermore, the determination of when
extended home confinement is appropriate is committed to the discretion of the Director of
the Bureau of Prisons by the express language of the CARES Act. Therefore, judicial review
under the Administrative Procedure Act is unavailable for this additional reason. Accord,
Coburn, No. 3:20-CV-01389, 2021 WL 3026851, at *5 (M.D. Pa. June 15, 2021), report and
recommendation adopted sub nom. Coburn v. Spaulding, No. CV 3:20-1389, 2021 WL
2678706 (M.D. Pa. June 30, 2021). In any event, the BOP’s determination was not
arbitrary, the BOP considered Petitioners for CARES Act early release based on their
individual characteristics, and exercised the discretion afforded to the Director of the BOP
to prioritize for release those who had served greater percentages of their sentences.
Petitioners also assert jurisdiction under 28 U.S.C. § 1331, solely for the purpose of
seeking appointment of a special master to determine how many inmates FCI Fort Dix can
house in the Camp while maintaining six feet social distance between inmates during the
pandemic. Because the Court concludes below, in the alternative merits discussion of
Petitioners’ Eighth Amendment claim, that the Eighth Amendment does not require FCI
Fort Dix to provide six feet distance between inmates, the Court need not split this claim
from the habeas petition to open a civil rights action under 28 U.S.C. § 1331. See e.g. Ponds
v. Pennsylvania Bd. of Prob. & Parole, No. 1:20-CV-15, 2020 WL 497144, at *4 (M.D. Pa.
Jan. 7, 2020), report and recommendation adopted sub nom. Ponds v. Pa. Bd. of Prob. &
Parole, No. 4:20-CV-00015, 2020 WL 489014 (M.D. Pa. Jan. 30, 2020) (discussing

improprieties of hybrid habeas/civil rights action).
C. Alternative Merits Analysis of Eighth Amendment Claim
The Court will address the merits of the Eighth Amendment conditions of
confinement claims in the alternative to dismissal for lack of jurisdiction. Petitioners allege
Respondent was deliberately indifferent to their health, in violation of the Eighth
Amendment, based on the failure to prevent the spread of COVID-19 in the FCI Fort Dix
Camp, and based on BOP’s failure to transfer them to extended home confinement under
the CARES Act.
“[T]he treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment” because the Government, by

depriving prisoners of their liberty, must provide for their basic human needs, including
medical care and safety. Helling, 509 U.S. at 31. A violation of the Eighth Amendment,
however, requires a showing that the Government knew of and disregarded an excessive
risk to prisoners’ health and safety. Hope, 972 F.3d at 329 (citing Nicini v. Morra, 212 F.3d
798, 811 (3d Cir. 2000) (citing Farmer, 511 U.S. at 837). Eighth Amendment protection
extends to risks to a prisoner’s future health. Id. (citing Palakovic v. Wetzel, 854 F.3d 209,
218 (3d Cir. 2017)).
“Deliberate indifference ‘is a ‘subjective standard of liability consistent with
recklessness as that term is defined in the criminal law.’” Id. at 330 (quoting Natale v.
Camden County Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting Nicini,
212 F.3d at 811)). “The context of the Government's conduct is essential,” and courts must
afford some deference to prison administrators. Id. The response to COVID-19 must be
considered in the context of the unique circumstances of the pandemic that rapidly altered

our world. Id. The constitutional standard does not require elimination of the risk that
prisoners will contract COVID-19. Id. “[P]rison officials who actually knew of a substantial
risk to inmate health or safety may be found free from liability if they responded reasonably
to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
Because context is essential and deference must be afforded to prison administrators,
it is appropriate to consider whether Respondent followed the CDC guidance for detention
facilities. See Hope, 972 F.3d at 330 (noting the district court failed to address the CDC
guidance for detention facilities). Here, FCI Fort Dix implemented the CDC guidance for
detention facilities through the BOP Action Plan and other policies such as detailed
quarantine and PPE guidance. (See Reiser, Turner-Foster, and Sassaman Declarations, Dkt.

Nos. 8-1, 8-2 and 8-3.) The CDC never urged mass testing of asymptomatic inmates, and
suggested testing of inmates in various types of quarantine, including asymptomatic inmates
in exposure quarantine. (Sassaman Decl., Ex. 2 and BOP Action Plan.) Although the CDC
recognized that six feet social distance between inmates was ideal for prevention of spread
of the virus (Id., Ex. 2, Dkt. No. 8-3 at 72, 79, 81), it also recognized that not all detention
facilities would be capable of providing ideal conditions. (Id., Dkt. No. 8-3 at 72.) Thus,
CDC guidance allowed for housing inmates in dormitories by isolating the units from each
other, sleeping head to foot, using good hygiene and sanitation practices, staggering use of
common areas with sanitation between uses, use of PPE by staff and masks by inmates, and
quarantine with a test-in, test-out requirement. (Id., Ex. 2, Dkt. No. 8-3 at 68-94.) As
discussed above, FCI Fort Dix enacted these protections. The failure to eliminate all risk
does not constitute deliberate indifference to inmate health in the context of a rapidly
evolving pandemic, and the difficulties associated with quickly adapting to the changes in a

minimum security camp environment. See e.g. Massey v. Estock, No. 1:20-CV-271, 2021
WL 195264, at *2 (W.D. Pa. Jan. 20, 2021); see United States v. Raia, 954 F.3d 594, 597
(3d Cir. 2020) (in context of compassionate release motion, noting “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, especially considering BOP's statutory
role, and its extensive and professional efforts to curtail the virus's spread.”)
Petitioners point to various instances where BOP policies were not enforced, for
instance inadequate soap supplies early in the pandemic, staff not wearing PPE, and
understaffing over the winter holidays that slowed identification and isolation of sick
inmates. These alleged instances were not so widespread as to constitute deliberate

indifference by Respondent. Additionally, this Court takes judicial notice that the third
outbreak at FCI Fort Dix occurred during the highest rates of COVID-19 infection in New
Jersey overall.29 Context matters, and includes the quick introduction of the vaccine at FCI
Fort Dix when it became available in mid-January 2021. See United States v. Ugbah, 4
F.4th 595, 597 (7th Cir. 2021) (denying compassionate release because “vaccines provide a
much better defense against infection than any judicial order could do.”) This Court cannot
conclude that Respondent was deliberately indifferent to Petitioners’ health risks because

29 See NJ COVID-19 Dashboard (available at
https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml (last visited Aug. 27,
2021).
FCI Fort Dix adopted and implemented, albeit imperfectly during difficult times, the CDC
guidance for managing the spread of COVID-19 in a detention facility that housed inmates
in a dormitory-style setting.
Petitioners raise a second Eighth Amendment claim. Given the inability to provide

the ideal conditions for preventing spread of COVID-19 in the FCI Fort Dix Camp,
Respondent was deliberately indifferent by refusing to release them to extended home
confinement under the CARES Act, based on considerations other than public safety, such
as percentage of their sentences served. The unfettered discretion afforded by Congress to
the BOP Director to determine when it is appropriate to release a prisoner to extended
home confinement under the CARES Act precludes a finding of deliberate indifference.
Each petitioner was reviewed for release, and according to the Declaration of James Reiser,
BOP continues to review inmates after completion of the initial review for all federal
inmates. (Reiser Decl. ¶ 20, Dkt. No. 8-2.)
The Court takes judicial notice of this recent post on the BOP’s website concerning

the CARES Act:
Case management staff continue to review all inmates to determine which ones meet
the criteria established by the Attorney General on March 26, 2020 and April 3, 2020.
The Department has also increased resources to review and make appropriate
determinations as soon as possible. All inmates are being reviewed for suitability,
however, any inmate who believes they are eligible may request to be referred to Home
Confinement and provide a release plan to their Case Manager.30
30 Available at
https://www.bop.gov/resources/news/20210823_home_confinement_milestone.jsp (last
visited August 26, 2021.) Respondent asserts the vaccine obviates the need for extended
home confinement. (Respt’s Suppl. Brief, Dkt. No. 4 at 11.) However, Respondent also
recognized the uncertainty of the virus and submits that BOP continues to take all necessary
and foreseeable precautions. (Suppl. Reiser Decl., ¶ 34, Dkt. No. 24-1.) In this respect, the
CARES Act presciently extended the “covered period” to extend home confinement until
the national emergency ends.
As Respondent acknowledged in answer to the petition (Answer, Dkt. No. 7 at 35), the
Attorney General’s April 3, 2020 memorandum calls for discretionary and individualized
determinations of eligibility. The individual and discretionary nature of review for eligibility
implies that inmates will not be categorically excluded based on the amount of time-served

as the BOP continues to review inmates for eligibility. Although courts cannot review the
BOP’s discretionary CARES Act determinations, administrative review is available to
inmates through the BOP’s administrative remedy program. (See Dobovich Decl. ¶ 3, Dkt.
No. 8 (describing administrative remedy procedure)).
VI. CONCLUSION
For the reasons discussed above, the Court finds that it lacks jurisdiction under 28
U.S.C. § 2241 to provide habeas relief on Petitioners’ Eighth Amendment conditions of
confinement claim, and dismisses the claim under Federal Rule of Civil procedure 12(b)(1).
Alternatively, the Court finds that Respondent was not deliberately indifferent to
Petitioners’ health in violation of the Eighth Amendment. The Court also lacks jurisdiction

over Petitioners’ APA claims, and alternatively finds that Respondent’s denial of early
release under the CARES Act was not arbitrary and capricious. The Court finds jurisdiction
over Petitioners’ § 2241 habeas claim that Respondent misinterpreted the CARES Act, but
denies the claim on the merits.

An appropriate Order follows.
Dated: September 1, 2021

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10271839. Public record. Not legal advice.