DAVEY v. N'DIAYE

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

JONATHAN DAVEY, : Civ. Action No. 22-2254 (RMB)

:

Petitioner :

:

v. : OPINION

:

WARDEN LAMINE N'DIAYE, :

:

Respondent. :

:

BUMB, Chief United States District Judge

This matter comes before the Court upon Petitioner Jonathan Davey’s

(“Petitioner”) petition for a writ of habeas corpus (“Petition”) under 28 U.S.C. §

2241, arguing the Federal Bureau of Prisons (“BOP”) violated his Eighth

Amendment rights by subjecting him to conditions that put his future health at risk

and by denying his application for home confinement. (Petition, Dkt. No. 1.) For

relief, Petitioner seeks release from incarceration to home confinement.1 Respondent

filed an answer in opposition to habeas relief. (Answer, Dkt. No. 8.) Petitioner

submitted a reply brief. (ECF No. 9.) For the reasons set forth below, the Court

denies the petition for writ of habeas corpus.

1 The Court previously denied Petitioner’s request for an ex parte temporary

restraining order because he did not meet the requirements and construed his request

as one for preliminary injunctive relief. (See ECF No. 2.)

I. RELEVANT BACKGROUND

A jury convicted Petitioner of conspiracy to commit securities fraud,18 U.S.C.

§ 371, conspiracy to commit wire fraud, § 1349, conspiracy to commit money

laundering, § 1956(h), and tax evasion, 26 U.S.C. § 7201 and 18 U.S.C. § 2. (See

United States v. Davey, 12-cr-68 (W.D.N.C.), ECF No. 174 (jury verdict).) The

sentencing court sentenced Petitioner to 252 months of imprisonment and ordered

him to pay more than $21 million in restitution. (See id., ECF No. 263 (judgment).)

Petitioner is scheduled to be released on December 5, 2031. (Declaration of James

Reiser (“Reiser Decl.”), Attach. J.)

BOP houses Petitioner at FCI Fort Dix. (See id.) “FCI Fort Dix is a “low

security federal correctional institution with an adjacent minimum security satellite

camp[,]” and “FCI Fort Dix Low is made up of buildings formerly used as military

training and housing.” (Id. ¶ 14.) “The Low security institution has an East and West

Compound, separated by razor wire fencing.” (Id.) “Each individual housing unit is

a dormitory-style military barrack.” (Id.) The exact capacity of FCI Fort Dix and the

number of inmates that BOP houses there fluctuates. The low facility has a capacity

of approximately 4,050 inmates, but currently there are 3907 inmates. 2 FCI Fort

Dix’s minimum securities camp is located outside of the fenced-in Low facility.

2 Current information on the number of inmates at FCI Fort Dix is available on the

BOP website. See https://www.bop.gov/locations/institutions/ftd/ (last visited

March 7, 2023). At the time Respondent submitted the Answer, the population at

Fort Dix was 3016 inmates. (Reiser Decl. ¶ 14.)

(Reiser Decl. ¶ 14.) The Camp has a capacity of approximately 400 inmates but

currently has a population of approximately 264.3

BOP placed Petitioner at FCI Fort Dix in accordance with 18 U.S.C. §

3621(b). Under this statute, BOP has the discretion to “designate the place of the

prisoner’s imprisonment” at “any available penal or correctional facility that meets

minimum standards of health and habitability established by [BOP]” after

considering numerous factors, such as the nature of the offense, the characteristics of

the inmate, and any statement by the court that imposed the sentence. See §

3621(b)(1)-(5). In addition to these statutory factors, Petitioner’s placement at FCI

Fort Dix is governed by a fact-specific and individualized assessment called a

“security designation and custody classification.”4 A custody classification is based

on “[t]he level of security and supervision the inmate requires,” and “[t]he inmate’s

program needs, i.e., substance abuse, educational/vocational training, individual

counseling, group counseling, or medical/mental health treatment, etc.” Id., Ch. 1 at

1.

Petitioner’s case manager at FCI Fort Dix previously reviewed Petitioner’s

eligibility for home confinement under 18 U.S.C. § 3624. Home confinement is a

type of “prerelease custody” currently available to certain inmates with a “low” or

3 See https://www.bop.gov/locations/institutions/ftd/ (last visited March 7, 2023).

4 See BOP Program Statement No. 5100.08, Inmate Security Designation & Custody

Classification at 1, https://www.bop.gov/policy/progstat/5100_008.pdf (last visited

March 9, 2023).

“minimum” PATTERN score5 that have served 50% or more of their sentence or

have 18 months or less remaining on their sentence.” (See Reiser Decl. ¶¶ 45, 48); see

also 18 U.S.C. § 3624(g)(2). However, Petitioner’s case manager determined that

Petitioner was ineligible under “current guidance” because he has served only 35% of

his imposed sentence and 41% of his statutory term. (Reiser Decl. ¶ 49 and Attach.

J.)

II. DISCUSSION

a. The Petition

On April 18, 2022, Petitioner filed a petition for a writ of habeas corpus under

28 U.S.C. § 2241.6 (ECF No. 1, Petition.) Petitioner alleges in his Petition that the

BOP considers him at “elevated risk of serious illness with respect to covid-19” (id. at

6), but he provides no details about his high-risk factors. He alleges that “he is not a

healthy man, and certainly not healthy enough to withstand continuous covid-19

attacks.” (Id. at 6.) He further alleges that he has contracted COVID-19 “twice, but

only testing positive once because there was no test the first round.” (Id. at 7.)

Petitioner is also somewhat vague about his vaccination status (see id. at 6-7),

5 BOP calculates a PATTERN score based on at least 15 different “risk items.” See

PATTERN Risk Assessment, https://www.bop.gov/inmates/fsa/pattern.jsp (last

visited March 9, 2023).

6 Respondent states that the current Acting Warden of FCI Fort Dix is Stevie Mr.

Knight (ECF No. 8, Answer at 29); this individual is “automatically substituted” as

the proper respondent under Fed. R. Civ. P. 25(d).

although Petitioner received the Moderna vaccine for COVID-19 on March 10, April

6, and December 7, 2021. (Reiser Decl. ¶ 51 and Attach L.)

Petitioner also alleges that the BOP “implements medical treatment” every

three or six months and that corrections officers do not always refer inmates for

medical care when they complain about illness. (Petition at 6-7.) Petitioner also notes

the BOP’s “history of failed attempts at mitigating” COVID-19 outbreaks. (Petition

at 7.)

Petitioner also contends that the BOP policy of requiring an inmate to serve

50% of his sentence violates the Eighth Amendment. (Petition at 4, 7.) Petitioner

further contends that he is not seeking the Court to issue an order transferring to

home confinement; rather he is seeking to challenge “the indecision by the BOP”

regarding his transfer to home confinement. (Petition at 4.)

b. The Answer

In the Answer, Respondent provides a detailed summary of the protocols and

procedures the BOP has implemented to address the COVID-19 pandemic and

maintain the health and safety of inmates at FCI Fort Dix, which are set forth below.

1. The “Action Plan” & The “Modified Operations Matrix”

The BOP has coordinated with subject-matter experts at multiple

organizations and agencies, including the Centers for Disease Control and

Prevention (“CDC”), the Occupational Safety and Health Administration

(“OSHA”), the Department of Justice (“DOJ”), and other relevant agencies and

organizations. (Reiser Decl. ¶ 8.) In the early days of the pandemic, this coordination

resulted in a multi-phased operational plan called the “Action Plan,” which has gone

through multiple iterations. (See Reiser Decl. ¶ 4.a.)

Under the Action Plan, “only limited group gathering was permitted, with

attention to social distancing to the extent possible, to facilitate commissary, laundry,

showers, telephone, and computer access.” (Id. ¶ 4.b and Attach. A.) BOP also

“limited the movement of inmates and detainees among its facilities.” (Id.)

Additionally, all staff and inmates were “issued an appropriate face covering and

mandated to wear the face covering when in public areas where social distancing

cannot be achieved.” (Id.)

Regarding quarantining and isolation, “every newly admitted inmate,

including inmates transferring between BOP institutions,” was “screened and tested

for COVID-19 exposure and symptoms.” (Id. ¶ 4.c and Attach. B.) Newly admitted

inmates were then placed in quarantine and were required to have a negative test

prior to joining the general inmate population. (Id.) “Symptomatic or positive

inmates were placed in isolation until they tested negative for COVID-19 or were

cleared by medical staff as meeting CDC criteria for release from isolation.” (Id.)

“In areas with sustained community transmission, such as FCI Fort Dix, and

at medical centers, all staff were screened, before beginning work each day, for

symptoms.” (Id. ¶ 4.d.) “Staff registering a temperature of 100.4 degrees Fahrenheit

or higher are barred from the facility on that basis alone.” (Id.) “If a staff member did

not register a temperature but exhibited symptoms consistent with COVID-19,

he/she was referred to one of the medical providers at the institution to assess

suitability for work that day.” (Id.)

On August 16, 2021, BOP moved beyond the Action Plan and introduced the

“Modified Operations Matrix” to further combat the spread of COVID-19. Id. ¶ 5.

This new Modified Operations Matrix incorporates parts of the Action Plan

described above—such as quarantine and isolation protocols—while adding new

health and safety measures and increasing BOP’s flexibility to address institution-

specific conditions, including at FCI Fort Dix. (See id. ¶¶ 5-6.) Stated another way,

the “Modified Operations Matrix is an adjustable pandemic response plan for

infection prevention procedures and inmate programming and services at any given

BOP institution location.” (Id. ¶ 6 and Attach. E.)

Institutions determine their operational level (Level 1, Level 2, or Level 3)

based on two indicators of COVID-19 Risk: the facilities’ COVID-19 inmate

isolation rate and the COVID-19 community risk of the county where the facility is

located.7 These three indicators, in turn, dictate one of three modified levels of

operation for the BOP institution. (See Reiser Decl. ¶ 6.)

7 See BOP COVID-19 Operational Levels,

https://www.bop.gov/coronavirus/covid19_modified_operations_guide.jsp (last

visited March 7, 2022). In the Answer, Respondent states that the Modified

Operation Matrix adjusted the infection prevention procedures at a particular

institution based on three indicators of transmission risk: (1) the rate of COVID-19

inmates in medical isolation; (2) the combined percentage of staff and inmate who

are vaccinated; and (3) the transmission rate of the county where the BOP institution

is located. See Reiser Decl. ¶ 6.

When the BOP filed its answer, FCI Fort Dix was operating at Level 3

Operations. (Id. ¶ 12.7) As of July 8, 2022, FCI Fort Dix had four reported staff

COVID-19 cases and zero inmate cases. (Reiser Decl. ¶ 25.) Under Level 3, the

modifications to operations at FCI Fort Dix are “intense.” (Reiser Decl. ¶ 13 and

Attach. E.) BOP personnel at FCI Fort Dix must:

• Follow the full COVID-19 Pandemic Plan including facility- wide use of face

coverings, surgical or N95 masks as indicated for both inmates and staff.

• Conduct daily COVID-19 symptom screen and temperature check prior to entry

into the institution (enhanced screening).

• Have social distancing in all areas of the facility and up to six feet where

feasible.

• Utilize cohort systems, the practice of grouping individuals together to confine

their care to one area and prevent contact with susceptible individuals, for

inmate housing, inmate programming, and the provision of services.

(Id.)

“Regarding cleaning protocols, ‘high touch’ areas must be cleaned several times

per day during Level 3 Operations,” and “[g]ood hygiene habits are promoted to staff

and inmates using a variety of means (e.g., educational programs, campaigns

including posters, assessing adherence to hand hygiene practices, etc.).” (Id. ¶ 10 and

Attach. M.) “Supplies for handwashing (soap, running water, hand dryers or paper

towels) are readily available for all staff and inmates and continually restocked as

needed.” (Id.) “And hand sanitizer is available in monitored common areas (but

cannot be stored in inmate cells for security reasons).” (Id.)

Regarding social distancing, it is required in all areas of FCI Fort Dix under

Level 3 Operations, even if six feet of distance is not always possible. (See id. ¶¶ 13-

15.) However, the “reduced population has allowed for better social distancing at

both the Low facility and the Camp.” (Id. ¶ 15.) Additionally, “inmates generally

move throughout the facility in housing-unit assigned cohorts when required to leave

their individual housing units for programming needs and to obtain services at this

time.” (Id.)

Currently, FCI Fort Dix is operating under Level 1 Operations.8 Under all

three levels of the Modified Operations Matrix, medical isolation, contact tracing,

and appropriate Personal Protective Equipment (“PPE”) are required. (Reiser Decl.

¶ 9.) Face coverings “must be worn at all times” by staff members “while indoors

regardless of vaccination status.” (Id.) And “continued high sanitation standards are

expected at all levels of operation and at a minimum, all areas, supplies, and

equipment must be cleaned on a daily basis.” (Id.)

2. Quarantine & Isolation Procedures

In addition to the Modified Operations Matrix, BOP “has designated

quarantine and isolation locations throughout” FCI Fort Dix. (Id. ¶ 16.)

“Quarantining means separating (in an individual room or cohorting in a unit)

asymptomatic not fully vaccinated persons to (1) observe them for symptoms and

8 Updated COVID-19 figures are available on the BOP’s website,

https://www.bop.gov/coronavirus/index.jsp (last visited March 7, 2023).

signs of the illness during the incubation period and (2) keep them apart from other

incarcerated individuals.” (Id. ¶ 17 and Attach N.) “When transfer quarantine is

required, inmates releasing or transferring from the FCI are placed into cohorts and

are moved to quarantine spaces at least 21 days prior to their scheduled movement.”

(Id. ¶ 16.) “Camp inmates (minimum security) transferring out of the institution are

quarantined in another unit.” (Id.)

“Isolating means confining individuals with suspected (displaying symptoms)

or confirmed (based on a positive point-of-care (POC) or commercial laboratory test)

COVID-19 infection, either to single rooms or by cohorting them with other viral

infection patients.” (Id. ¶ 17.) “Additionally, any time an inmate tests positive for

COVID-19 in a housing unit, the positive inmate is moved to an isolation unit.” (Id.

¶ 18.)

“All inmates entering isolation units are tested for the COVID-19 virus using

send-out laboratory tests. Before the inmates are released from the isolation unit the

inmates are tested again.” (Id. ¶ 19.) “Inmates in isolation units do not leave their

housing units.” (Id. ¶ 20.) “Staff brings meals and other items, such as Commissary,

to the housing units.” (Id.) “Likewise, inmates in isolation generally receive

medication and medical services in those units unless more extensive treatment is

necessary.” (Id.)

“To minimize the risk of contracting and spreading the virus, staff entering

any quarantine/isolation building are required to wear proper Personal Protective

Equipment (“PPE”), which they obtain from the Lieutenant’s office.” (Id. ¶ 21 and

Attach. F.) “This may include an N-95 mask, face shield/goggles, a gown, and

gloves.” (Id.) “Additionally, symptomatic staff are prohibited from coming to work

at the institution and are encouraged to seek treatment from their respective medical

providers.” (Id. ¶ 22.)

3. Testing & Vaccination Program

BOP also combats the spread of COVID-19 through testing and vaccines.

Regarding testing, BOP has had testing guidance in place since June 2020 under the

Action Plan and has tested 3291 inmates at FCI Fort Dix since May 25, 2022. (Id. ¶¶

4.c., 27 and Attach. B.)

Regarding vaccines, as of May 25, 2022, BOP has offered all eligible staff and

inmates the COVID-19 vaccine. (Id. ¶ 23.) “BOP views inmates as eligible for

vaccination unless medical circumstances counsel against vaccination.” (Id.) “Newly

eligible inmates, new arrivals, and inmates that have previously declined a vaccine

will be offered the vaccine as additional supplies are received.” (Id.) “Additional

vaccine supplies are ordered based on anticipated need.” (Id.)

As of March 8, 2023, BOP has vaccinated 3359 inmates at the institution with

complete doses of COVID-19 vaccines. 9 As of the same date, BOP has vaccinated

277 staff at FCI Fort Dix with complete doses of COVID-19 vaccines.10

9 See https://www.bop.gov/coronavirus/covid19_statistics.html (last visited March

8, 2023). Respondent provided the vaccination rates since July 2022 (Reiser Decl. ¶¶

24, 26), but the Court has used the updated information, which is available on the

BOP COVID-19 Statistics section of the BOP website.

10 Id.

4. Prioritizing Home Confinement

In addition to the Operations Matrix and a robust vaccination program, the

BOP has prioritized home confinement for at-risk inmates who are non-violent and

pose minimal likelihood of recidivism. (See Reiser Decl. ¶¶ 31-32 and Attach. G.) In

making this determination, “BOP considers the totality of circumstances for each

individual inmate, the statutory requirements for home confinement, and the

following non-exhaustive list of discretionary factors:”

• The age and vulnerability of the inmate to COVID-19, in accordance with the

CDC guidelines;

• The security level of the facility currently holding the inmate, with priority

given to inmates residing in low and minimum security facilities;

• The inmate’s conduct in prison, with inmates who have engaged in violent or

gang-related activity in prison or who have incurred a BOP violation within

the last year not receiving priority treatment;

• The inmate’s score under PATTERN (the Prisoner Assessment Tool

Targeting Estimated Risk and Need), with inmates who have anything above

a minimum score not receiving priority treatment;

• Whether the inmate has a demonstrated and verifiable re-entry plan that will

prevent recidivism and maximize 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 in

his or her BOP facility; and

• The inmate’s crime of conviction, and assessment of the danger posed by the

inmate to the community. Some offenses, such as sex offenses, will render an

inmate ineligible for home confinement. Other serious offenses weigh heavily

against consideration for home confinement.

(Id. ¶ 32 and Attach. G.)

While making this fact-specific determination, the Attorney General

emphasized that BOP “cannot take any risk of transferring inmates to home

confinement that will contribute to the spread of COVID-19, or put the public at risk

in other ways.” (Id., Attach. G. at 2.) Accordingly, any inmate granted home

confinement under this guidance was required to be “in a mandatory 14-day

quarantine period” before being “discharged from a BOP facility.” (Id.) “Inmates

transferred to home confinement under this prioritized process should also be subject

to location monitoring services and, where a court order is entered, be subject to

supervised release.” (Id.)

On April 3, 2020, the Attorney General updated the guidance to BOP and

issued additional directives in light of the passage of the Coronavirus Aid, Relief, and

Economic Security (“CARES”) Act. (Id., Attach. H.) The CARES Act authorized

the Attorney General, at his discretion, “to expand the cohort of inmates who can be

considered for home release upon [his] finding that emergency conditions are

materially affecting the functioning of [BOP].” (Id. at 1.)

Following issuance of the Attorney General’s April 3, 2020 guidance, “BOP

has greatly increased home confinement since March 2020, and continues to

aggressively screen inmates for home confinement” based on the fact-specific factors

described above. (Id. ¶ 41.) For example, on April 13, 2021, BOP determined that

inmates with a “low” (as compared to a “minimum”) PATTERN score or “300 or

400 series” incident reports in the past 12 months “may” still be suitable for home

confinement. (See id. ¶ 45 and Attach. I at 1-2.) Furthermore, “any inmate who

believes he or she is eligible may request to be referred to home confinement and

provide a release plan to his or her Case Manager.” (Id. ¶ 42.) Given its prioritization

of home confinement, BOP currently “has 5,592 inmates on home confinement.”11

However, consistent with the Attorney General’s guidance, home

confinement is not considered an appropriate placement for certain inmates, even

with BOP’s expanded policies. (See Reiser Decl., Attach. H.) “That means [BOP]

cannot simply release prison populations en masse onto the streets.” Id. at 2. “Doing

so would pose profound risks to the public from released prisoners engaging in

additional criminal activity, potentially including violence or heinous sex offenses.”

Id.

As relevant here, one factor that BOP uses is determining whether an inmate

is eligible for home confinement is the percentage of time served. In general, an

inmate must serve “50% or more of their sentence; or has 18 months or less

remaining on their sentence and have served 25% or more of their sentence.” (Id.,

Attach. I at 2.) “If an inmate does not qualify for home confinement under BOP

criteria, he may be reviewed for placement in a Residential Reentry Center and home

confinement when he is eligible in accordance with applicable laws and BOP

policies.” (Id. ¶ 46.)

11 See https://www.bop.gov/coronavirus/faq.jsp (last visited March 7, 2023). The

total number of inmates placed in home confinement from March 26, 2020 to the

present (including inmates who have completed service of their sentence) is 54,229.

See id.

Moreover, if an inmate is dissatisfied with BOP’s home confinement

determination, he or she may appeal through BOP’s administrative exhaustion

procedures. Under BOP’s multi-level exhaustion system, an inmate must first

“present an issue of concern informally to staff, and staff shall attempt to informally

resolve the issue before an inmate submits a Request for Administrative Remedy.”

28 C.F.R. § 542.13(a).

Second, if the inmate is not satisfied, he may file a “formal written

administrative Remedy Request, on the appropriate form (BP-9),” within “20

calendar days following the date on which the basis for the Request occurred.” 28

C.F.R. § 542.14(a). Third, if the inmate “is not satisfied with the Warden’s

response,” which must issue within 20 days, the inmate may “submit an Appeal on

the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar

days of the date the Warden signed the response.” §§ 542.15(a), 542.18. Finally,

“[a]n inmate who is not satisfied with the Regional Director’s response may submit

an Appeal on the appropriate form (BP-11) to the General Counsel within 30

calendar days of the date the Regional Director signed the response.” § 542.15(a).

The General Counsel has 40 days to respond. § 542.18. If an issue raised by the

inmate concerns “an emergency” that “threatens the inmate’s immediate health or

welfare, the Warden shall respond not later than the third calendar day after filing.” §

542.18.

c. Analysis

28 U.S.C. § 2241(c)(3) provides, “[t]he writ of habeas corpus shall not extend

to a prisoner unless-- ... He is in custody in violation of the Constitution or laws or

treaties of the United States....” First, the Court must satisfy itself of jurisdiction.

Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76–77 (3d Cir. 2003) (“courts have an

independent obligation to satisfy themselves of jurisdiction if it is in doubt.”)

1. Jurisdiction over Petitioner’s Habeas Claims

Respondent first argues that the Court lacks jurisdiction to order to issue an

order for home confinement under 18 U.S.C.§ 3624(c)(2) or its amendments under

the CARES Act. The Third Circuit has stated that Petitioners cannot use Ҥ 2241 as

an end-run around the compassionate release statute (18 U.S.C. § 3582(c)(1)(A)) and

the federal CARES Act, which vests in the Director of the Bureau of Prisons

discretion to transfer an inmate to home confinement.” Olson v. Warden Schuylkill

FCI, No. 21-2436, 2022 WL 260060, at *2 (3d Cir. Jan. 27, 2022); see also Perri v.

Warden of FCI Fort Dix, CV 20-13711 (RBK), 2023 WL 314312, at *3 (D.N.J. Jan. 19,

2023) (same).

As noted by Respondent, Congress’s decision to grant the Attorney General

and BOP this substantial authority and discretion concerning home confinement

under the CARES Act reflects a long-standing practice of deferring to BOP regarding

the transfer and placement of inmates. Indeed, under 18 U.S.C. § 3621(b), BOP (not

the courts) “shall designate the place of the prisoner’s imprisonment” based on an

individualized and fact-intensive analysis of the inmate. “Any order,

recommendation, or request by a sentencing court that a convicted person serve a

term of imprisonment in a community corrections facility shall have no binding

effect on the authority of the Bureau under this section to determine or change the

place of imprisonment of that person.” Id. Furthermore, “a designation of a place of

imprisonment under this subsection is not reviewable by any court.” Id. As a result,

the Court agrees with Respondent that it lacks jurisdiction to issue an order for home

confinement under 18 U.S.C.§ 3624(c)(2) or its amendments under the CARES Act.

United States v. Aguibi, 858 F. App’x 485, 486 n.2 (3d Cir. 2021) (citing Tapia v. United

States, 564 U.S. 319, 331 (2011)) (finding that the BOP has the sole authority to place

a prisoner on home confinement); Washington v. Warden Canaan USP, 858 F. App’x

35, 36 (3d Cir. 2021) (explaining that the decision “to transfer an inmate to home

confinement is ... within the exclusive discretion” of the BOP).

Petitioner contends, however, that the Court has jurisdiction over his Petition

because his Eighth Amendment right to avoid cruel and unusual punishment has

been violated. As the basis for the Eighth Amendment violations, he contends that 1)

he is high risk of serious illness from COVID-19, 2) the BOP had failed to contain

outbreaks of COVID-19, and 3) the BOP generally provides inadequate medical care.

Respondent argues that the Court also lacks jurisdiction over Petitioner’s

Eighth Amendment claims “because Petitioner is challenging the conditions of his

confinement concerning the risk of COVID-19, and he does not present a ‘core’

habeas claim.” (ECF No. 8, Answer at 29.)

As this Court recognized in Goodchild v. Ortiz, No. CV 21-790 (RMB), 2021

WL 3914300, at *15 (D.N.J. Sept. 1, 2021), the Third Circuit has not yet determined

in a precedential decision 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. In Hope v. Warden York County

Prison, the Third Circuit held that because extraordinary circumstances existed in

March 2020, based on the COVID-19 pandemic, immigration detainees could seek

habeas relief and release from confinement under 28 U.S.C. § 2241, based on

allegations that the conditions of confinement violated the 14th Amendment. 972

F.3d 310, 324 (3d Cir. 2020). The court 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).

More recently, in Olson v. Warden Schuylkill FCI, No. 21-2436, 2022 WL 260060, at

*2 (3d Cir. Jan 27, 2022) (nonprecedential), the Third Circuit relied on Hope v.

Warden and found that the district court “possessed jurisdiction” over Olson’s

petition to the extent he “sought release as redress for allegedly Eighth Amendment-

violative conditions of confinement solely through the mechanism of § 2241[.]”

(explaining that the district court “had the authority to order a change in Olson’s

custody if there was a valid basis to do so”) (citing Johnston v. Marsh, 227 F.2d 528,

529-30 (3d Cir. 1955)).

Here, Respondent contends that the Third Circuit has never extended habeas

jurisdiction to convicted inmates challenging conditions of confinement.

Respondent further contends that Petitioner’s wholly unsupported allegations that he

is at risk of dying from COVID-19 despite his status as a fully vaccinated inmate

militates against the Court finding that extraordinary circumstances exist, triggering §

2241 jurisdiction. The Court agrees that Petitioner has not sufficiently set forth

extraordinary circumstances that would justify exercising habeas jurisdiction over

Petitioner’s claims under § 2241.12

12 As the Court found in its order to answer, Petitioner’s allegations about his

susceptibility to serious illness from COVID-19 are vague and “unsupported.” (See

ECF No. 2 at 3 (“[Petitioner] draws the unsupported conclusion that if he is infected

with COVID-19 again, he ‘will not survive.’”).)

2. Exhaustion under 28 U.S.C. § 2241

Respondent further contends that even if the Court has jurisdiction over

Petitioner’s Eighth Amendment claims, Petitioner did not fully exhaust his

administrative remedies.13 The Court agrees.

A federal prisoner ordinarily may not bring a petition for writ of habeas corpus

under 28 U.S.C. § 2241 until he has exhausted all available administrative remedies.

See Callwood v. Enos, 230 F.3d 627, 633-34 (3d Cir. 2000)). “Although there is no

statutory exhaustion requirement attached to § 2241, we have consistently applied an

exhaustion requirement to claims brought under § 2241.” Callwood, 230 F.3d at 634.

“We require exhaustion for three reasons: (1) allowing the appropriate agency to

develop a factual record and apply its expertise facilitates judicial review; (2)

permitting agencies to grant the relief requested conserves judicial resources; and (3)

providing agencies the opportunity to correct their own errors fosters administrative

13 Respondent also argues that under the PLRA, an inmate challenging the

conditions of his confinement must exhaust all available administrative remedies. See

42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a prisoner confined in

any jail, prison, or other correctional facility until such administrative remedies as

are available are exhausted.”) (emphasis added). Other court have applied the PLRA

exhaustion requirement to petitions raising concerns over COVID-19. See Dimartino

v. Sage, 21-cv-498, 2022 U.S. Dist. LEXIS 6639, at *14 (D. Conn. Jan. 13, 2022)

(“[T]he Court concludes that this § 2241 petition [seeking home confinement and

challenging conditions of confinement] is subject to the requirements and limitations

set forth in the PLRA.”); Alvarez v. Larose, 445 F. Supp. 3d 861, 866 (S.D. Cal. 2020)

(applying PLRA “to a habeas claim based on confinement conditions” because of

COVID-19). This Court need not decide this issue as Petitioner’s claim fails for lack

of prudential exhaustion and on the merits.

autonomy.” Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996). This

prudential exhaustion may only be excused if (1) it would be futile, (2) the actions of

the agency clearly and unambiguously violated a statutory or constitutional right, or

(3) the administrative remedy process would be clearly inadequate to prevent

irreparable harm. Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988).

The BOP’s administrative remedy system has three tiers allowing “an inmate

to seek formal review of an issue relating to any aspect of his/her own confinement.”

28 C.F.R. § 542.10(a). Here, Petitioner submitted only a BP-9 grievance on or about

May 11, 202214 and filed his federal court petition on April 18, 2022 (dated April 5,

2022). (See ECF No. 4 at 1; compare ECF No. 1 (petition); see also Declaration of

Corrie Dobovich (“Dobovich Decl.”) ¶ 7 and Attach. A; Reiser Decl. ¶ 50 (“Records

do not reflect that Petitioner submitted a request to be considered for Compassionate

Release/Reduction in Sentence to the Reduction in Sentence (RIS) Coordinator at

FCI Fort Dix to date.”).)

Furthermore, Petitioner concedes he failed to exhaust his administrative

remedies and instead argues that exhaustion is futile. (See Petition, ECF No. 1 at 5-

6.) Petitioner argues that the Court should excuse his failure to exhaust and “proceed

14 For reasons that are unclear, Petitioner states that he resubmitted a BOP-9

grievance form on May 11, 2022, but his grievances are dated April 27 and April 29,

2022. (See ECF No. 4 at 8-10.) BOP also did not locate this grievance until July 6,

2022. (See Dobovich Decl., Attach B at 7.) Nevertheless, there is no dispute that

Petitioner failed to fully exhaust his grievance before filing his petition with this

Court since Petitioner submitted his grievance at almost the same time as he filed his

petition, which would make exhaustion impossible.

to the merits underlying the controversy because the administrative body will not at

all entertain his administrative remedy.” (See Petition, ECF No. 1 at 5-6.) However,

Petitioner does not explain why he believes BOP would not “entertain” his

grievance. See id.

As noted by Respondent, the issues raised in the petition are fact specific, and

BOP should be given an opportunity to develop a factual record and address

Petitioner’s concerns at the administrative level in advance of litigation before the

Court. Petitioner’s unsupported statements that his grievances would be futile are

insufficient to overcome the exhaustion requirement. Thus, the Court finds that the

Petition is subject to dismissal for failure to exhaust administrative remedies.

3. Merits of Petitioner’s Eighth Amendment Claims

Finally, Respondent argues that even assuming that the Court has jurisdiction

and can bypass exhaustion and order a change in Petitioner’s custody, there is no

valid basis to do so here, and the Eighth Amendment claims fail on the merits. The

Court agrees.

Notably, Petitioner seeks preliminary injunctive relief. Federal Rule of Civil

Procedure 65 governs the issuance of a preliminary injunction. In order to grant

preliminary injunctive relief, the Court must assess: “(1) whether the movant has

shown a reasonable probability of success on the merits; (2) whether the movant will

be irreparably injured by denial of the relief; (3) whether granting preliminary relief

will result in even greater harm to the nonmoving party; and (4) whether granting

preliminary relief will be in the public interest.” N.J. Retail Merchants Ass’n v. Sidamon-

Eristoff, 669 F.3d 374, 385- 86 (3d Cir. 2012) (internal quotations omitted). “The

failure to establish any element ... renders a preliminary injunction inappropriate.”

NutraSweet Co. v. Vit–Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). The movant

bears the burden of showing that the four factors weigh in favor of granting the

injunction. See Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d

Cir. 1990).

Preliminary injunctive relief is an “extraordinary remedy, which should be

granted only in limited circumstances.” Novartis Consumer Health, Inc. v. & Johnson–

Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002). Moreover, where (as

here) a petitioner is seeking mandatory injunctive relief disrupting the status quo, he

must satisfy a “particularly heavy burden” and show a “substantial” (not just

reasonable) likelihood of success on the merits and an “indisputably clear” right to

relief. See Hope, 972 F.3d at 320.

Here, Petitioner alleges that the BOP was deliberately indifferent to his health

and safety, in violation of the Eighth Amendment, because it failed to prevent the

spread of COVID-19 at FCI Fort Dix, failed to provide adequate medical care at FCI

Fort Dix, and denied his request to be transferred to extended home confinement

under the CARES Act.

To demonstrate deliberate indifference regarding medical care under the

Eighth Amendment, an inmate must show: (1) that alleged deficiencies in medical

care are objectively “sufficiently serious”; and (2) that government actors “have a

sufficiently culpable state of mind.” Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020).

The threat of future harm from disease exposure does not violate the Eighth

Amendment unless the threat is so severe that it would be “contrary to current

standards of decency for anyone to be so exposed.” Helling v. McKinney, 509 U.S. 25,

35 (1993). In addition, a plaintiff must also show that BOP “knows of and disregards

an excessive risk to inmate health or safety; the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994).

Here, Petitioner’s Eighth Amendment claims lack merit because Petitioner

“fails to identify conduct rising to the level of deliberate indifference by his jailors[.]”

Olson, 2022 WL 260060, at *2 (citing Hope, 972 F.3d at 329). Plaintiff has not

plausibly alleged or shown any deliberate indifference to his health and safety or his

need for medical care by prison officials. Quite the contrary, Respondent has shown

without contradiction that the BOP has taken reasonable steps to address the

COVID-19 pandemic within Fort Dix.

Moreover, the threat of serious illness to Petitioner is not so severe that it is

contrary to current standards of decency.15 In the civil immigration context under the

15 The Court need not reach the issue of irreparable harm but notes that Petitioner is

vaccinated, and the Third Circuit has suggested the “widespread availability of the

COVID-19 vaccine” eliminates the “imminent risk of serious physical injury.” See

Garrett v. Murphy, 17 F.4th 419, 433 (3d Cir. 2021) (affirming denial of

compassionate release) (quotations and ellipse omitted).

Fifth Amendment, the Third Circuit has held that the specter of COVID-19 infection

does not constitute a constitutional violation where the government “increased its

efforts to minimize risk by improving hygiene and decreasing exposure. See Hope, 972

F.3d at 331. That is exactly what BOP is doing at FCI Fort Dix through the

Modified Operations Matrix. BOP has provided substantial evidence showing it is

offering vaccination to inmates and staff, quarantining and isolating inmates exposed

to COVID-19, promoting the use of personal protective equipment, regularly

cleaning the facility, and testing symptomatic inmates. (See Reiser Decl. ¶¶ 5-23.)

Under these circumstances Petitioner cannot demonstrate a reasonable

probability of success on the merits, much less the substantial likelihood of success

required for a mandatory injunction to upend the status quo. For these reasons,

Petitioner fails to show that a likelihood of success on the merits, and the Court need

not reach the remaining elements for preliminary injunctive relief.

To the extent Petitioner is challenging the merits of BOP’s home confinement

determination under existing BOP policy, Petitioner’s challenge is also without

merit. Petitioner’s case manager determined that Petitioner was ineligible under

“current guidance” because Petitioner has served only 35% of his imposed sentence

and 41% of his statutory term. (See Reiser Decl. ¶ 49 and Attach. J.) That

determination does not violate existing BOP policy, and there is no basis to make an

exception for Petitioner under these circumstances. (See id. ¶ 50 (“Petitioner was

ineligible at that time under the current guidance because he had not served 50% or

more of his sentence; nor did he have 18 months or less remaining on his

sentence.”).)

4. APA Claims

Finally, Petitioner may be attempting to challenge the BOP’s decision to deny

Petitioner home confinement under the Administrative Procedures Act, 5 U.S.C. §

706(2)(A), which provides, in relevant part:

The reviewing court shall-- ... (2) hold unlawful and set

aside agency action, findings, and conclusions found to be-

-(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.

This provision, however, must be read together with 18 U.S.C. § 3625, which

provides, “[t]he provisions of sections 554 and 555 and 701 through 706 of title 5,

United States Code, do not apply to the making of any determination, decision, or

order under this subchapter.” Subchapter C of Title 18 governs §§ 3621-3626. Thus, a

prisoner may not challenge his custody classification under § 706 of the APA.

Burnam v. Marberry, 313 F. App’x 455, 456 (3d Cir. 2009) (“Congress has precluded

judicial review of claims made pursuant to § 706) (citing 18 U.S.C. § 3625; see also

Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998)). This Court has previously

held that “[e]xtended home confinement under the CARES Act falls under § 3624(c),

and is thus exempted from judicial review.” Goodchild v. Ortiz, No. CV 21-790

(RMB), 2021 WL 3914300, at *19 (D.N.J. Sept. 1, 2021); Shah v. Warden, FCI Fort

Dix, No. CV 22-6306 (RMB), 2023 WL 1794891, at *4 (D.N.J. Feb. 7, 2023) (same);

see also United States v. Houck, 2 F.4th 1082, 1085 (8th Cir. 2021) (“the recently passed

CARES Act permits the Director of the BOP to extend the period of home

confinement permitted under § 3624(c)(2) (citing Pub. L. 116-136, § 12003(b)(2), 134

Stat. 281, 516 (2020)). Therefore, jurisdiction does not lie in under 5 U.S.C. §

706(2)(A), see Shah v. Warden, FCI Fort Dix, 2023 WL 1794891, at *4, and the APA

claim is dismissed for lack of jurisdiction.

III. CONCLUSION

For the reasons discussed above, the Court denies the habeas petition. An

appropriate Order follows.

Date: March 20, 2023.

s/Renée Marie Bumb

RENÉE MARIE BUMB

CHIEF UNITED STATES DISTRICT JUDGE