# Brooks v. Wolcott

> District Court, W.D. New York · June 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10362356

## Case

- **Court:** District Court, W.D. New York
- **Decided:** June 11, 2020
- **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/10362356

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIAM BROOKS,
Petitioner,
Vv. 20-CV-0516 (JLS)
JULIE WOLCOTT, Superintendent of
Orleans Correctional Facility, et al.,
Respondents.

DECISION AND ORDER

Pro se Petitioner William Brooks, an inmate at Orleans Correctional Facility,
petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
seeking immediate release based on the conditions of his confinement during the
COVID-19 pandemic. See Dkt. 1. Respondents moved to convert Brooks’s petition
to one brought pursuant to 28 U.S.C. § 2254 (Dkt. 5), which the Court granted. Dkt.
10. Now before the Court is Respondents’ motion to dismiss for failure to state a
claim and for failure to exhaust (Dkt. 11), as well as Brooks’s motions for expedited
and other relief. Dkts. 13, 14, 16. For the following reasons, the Court grants
Respondents’ motion to dismiss and denies Brooks’s motions.

FACTS

Brooks currently is in state custody at Orleans Correctional Facility
(“Orleans”). See generally Dkt. 1, at 1, 4 1. He is serving a 22-years-to-life sentence

for second-degree murder and attempted robbery in the first degree. See Dkt. 1, at
2 7 5; see also Dkts. 5-2, 5-3 (documenting Brooks’s conviction and sentence).
Brooks alleges he is classified as a medium-security inmate because of good
behavior and is about thirty months away from a parole board hearing. See Dkt. 1,
at 2-3 4 6, 8.

Brooks alleges that the correctional facility setting and operations of Orleans
make it impossible for Respondents to follow health authorities’ reeommendations
and prevent the rapid spread of a highly contagious disease hike COVID-19. Dkt. 7-
1, at 6-8 Jf 22-35. Brooks describes his setting as a “dorm one with over 50 inmates
in unclosed area and space” with only “one inch and half partitions separating” him
from the other inmates. Dkt. 1, at 3 § 9; Dkt. 7-1, at 6 4 26. Brooks relates that he
must use the same bathroom, toilets, showers, phones, and other items as forty-nine
other individuals. Dkt. 7-1, at 7 { 27. According to Brooks, if an outbreak happens
within Orleans, “the staff is not equipped to respond,” and the “current state of
prison condition[s] does not allow social distancing.” Dkt. 1, at 4 15. Brooks
alleges that more than eleven employees have been “within the walls of the facility
with COVID-19.” Dkt. 1, at 4418. He describes how staff only wear the provided
masks in his dorm when “staff of a higher ranking” visit, and every staff member
except for two have “consistently shunned the responsibility to wear the mask
provided.” Dkt. 2, at 4 5-6.

Brooks is concerned for his health because he suffers from “recently physician
diagnosed medical conditions [including] hypertension, tachycardia and high-blood

pressure.” Dkt. 1, at 3 § 8; Dkt. 7-1, at 3-4 { 138. Brooks claims his medications for
these medical conditions weaken his immune system and cause side effects such as
shortness of breath, acute dizziness, irregular or slowing of the heartbeat, and
vertigo. Dkt. 1, at 3 § 10; Dkt. 7-1, at 4 | 14-15. Brooks states that he has
suffered “several episodes” due to these medical conditions and side effects,
resulting in “being taken to the outside hospital” five times since November 2019
“because the facility’s medical staff is inadequate to protect his health.” Dkt. 1, at 3
4 11; Dkt. 2, at 5 § 9. Based on these circumstances, Brooks alleges he is in
imminent danger and there is a “grave risk” of his death if he were to “contract
COVID-19 while in the care and custody of Respondents.” Dkt 7-1, at 9 § 39; Dkt. 2.
at 3-4 ¥ 2.

Brooks cites numerous health authorities and emergency declarations, both
state and national, to support his claim that his “prison conditions became
unconstitutional” in light of COVID-19. Dkt. 1, at 29 7, at 44 16; Dkt. 7-1, at 4-8
{{| 16-385. Brooks claims that the state courts effectively have been closed since
March 17, 2020, and that various executive orders have suspended and modified
normal operations of rules, laws, and regulations. Dkt. 1, at 4 | 14; Dkt. 7- 1, at 4-5
{{ 18-19. As a result, Brooks seeks a writ of habeas corpus ordering Respondents
to discharge him from custody, and that the U.S. Marshal remove him from Orleans
if Respondents do not comply. Dkt. 1, at 5.

PROCEDURAL HISTORY

The Court set forth the earlier procedural history of this case in its decision
and order granting Respondents’ motion to convert the petition (Dkt. 10) and does
not repeat that history here.

On May 26, 2020, Respondents moved to dismiss on two grounds: (1) a
conditions of confinement claim does not support habeas relief; and (2) Brooks failed
to exhaust available state court remedies. Dkt. 11. On or about that same date,
Brooks submitted a “Traverse to Answer,” in which he argues that, under “these
special circumstances...exhaustion must be deem[ed] futile and excused.” Dkt. 12,
at 3. Ina contemporaneous motion, Brooks states that he falls “under the exception
of the administrative exhaustion requirement under 28 U.S.C. § 2254(b)(1) and 42
U.S.C. § 1997e et. seq.”! Dkt. 14, at 3 § 7. Brooks’s additional motions seek to add
defendants and to assert new facts related to a retaliation claim under the First

his Traverse, Brooks discusses and cites to case law concerning the Prison
Litigation Reform Act’s (“PLRA”) exhaustion requirement. Dkt. 12, at 3-6; 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.”). He also cites to the PLRA’s exhaustion requirement
in his motion of May 26, 2020. Dkt. 14, at 3 § 7. However, the PLRA’s exhaustion
requirement does not apply here because Brooks filed a habeas corpus petition, not
a Section 1983 action. See United States v. McGriff, 468 F. Supp. 2d 445, 447
(E.D.N.Y. 2007) (‘A habeas petition is not subject to the administrative exhaustion
requirement of the [PLRA].”). If Brooks were to file a Section 1983 claim, see infra
Section II, the PLRA’s requirements, including the exhaustion requirement, would
apply. But, as discussed in Section I.A., a separate exhaustion requirement applies
to Section 2254 habeas petitions. The Court liberally construes Brooks’s arguments
in that context.

Amendment. Dkts. 13, 14. On June 1, 2020, Brooks submitted a motion to
withdraw the Traverse to Answer? as well as a Memorandum of Law regarding his
motion for an expedited hearing, both of which were docketed on June 8, 2020.
Dkts. 15, 16.

DISCUSSION

Because Brooks is a pro se petitioner, the Court will “construe [his] pleadings
liberally and interpret them ‘to raise the strongest arguments they suggest.” See
Wells v. Annucci, No. 19-cv-3841, 2019 WL 2209226, at *1 (S.D.N.Y. May 21, 2019)
(quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). His
pro se status, however, “does not exempt [him] from compliance with relevant rules
of procedural and substantive law.” See Siao-Pao v. Connolly, 564 F. Supp. 2d 232,
238 (S.D.N.Y. 2008) (internal quotations and citations omitted).

I. Respondents’ Motion to Dismiss

Brooks raises an Eighth Amendment claim based on his feared exposure, as
an allegedly high-risk inmate, to COVID-19 while in Respondents’ custody.
Respondents move to dismiss the petition because it does not state a cognizable
claim and because Brooks did not exhaust available state remedies. Because

2 The Court acknowledges that Brooks wishes to withdraw his Traverse to Answer.
Dkt. 15. However, this Court has reviewed and considered all of Brooks’s filings in
this decision, to the extent they relate to the exhaustion requirement at issue.

Brooks failed to exhaust his claims, the Court will not address the other arguments
raised by the State or resolve the petition on the merits.

A. Exhaustion Requirement under 28 U.S.C. § 2254
Respondents argue that the petition must be dismissed because Brooks did
not exhaust his claims. In the petition and other filings, Brooks does not allege that
he sought relief for his claims in administrative proceedings or in state court.
Instead, he argues that the “state courts have effective March 17, 2020 closed its
doors to its residents,” and that he has “no other form of recourse that would be
other than futile and would be inconsistent with this National Emergency.” Dkt. 1,
at 49 14. Brooks also argues that exhaustion must be deemed “futile and excused”
in light of the emergency and special circumstances of the COVID-19 pandemic.
Dkt. 12, at 8. Respondents argue that Brooks did not allege he raised any claim in
state court and is not excused from failing to exhaust state remedies. Dkt. 11-5, at
3-4.
As this Court previously explained, under 28 U.S.C. § 2254(a), a sentenced
state prisoner who alleges he is in state custody in violation of federal law may seek
relief in federal court pursuant to an application for a writ of habeas corpus. See
Dkt. 10, at 5-8. Section 2254 requires a petitioner to show that he has “exhausted
the remedies available in the courts of the State” before a federal court will consider
the writ. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999) (“Before a federal court may grant habeas relief to a state prisoner, the
prisoner must exhaust his remedies in state court.”). To exhaust state remedies, a

petitioner must “fairly present federal claims to the state courts in order to give the
state the opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” McCray v. New York, 573 F. App’x 22, 28 (2d Cir. 2014) (quoting
Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)). A petitioner exhausts his or her
claims when he or she “presented [his or her] constitutional claim to the highest
state court from which a decision can be obtained.” Lewis v. Bennett, 328 F. Supp.
2d 396, 403 (W.D.N.Y. 2004) (citing Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.
2000)).

There are several ways a petitioner may exhaust his or her claims. As
relevant here, where the claim for relief is not based on a trial court record, a
petitioner may exhaust the claim by raising it to the state trial court in a collateral
post-conviction motion, such as a motion under New York Criminal Procedure Law
§ 440. See Elleby v. Smith, No. 20-cv-2935, 2020 WL 2611921, at *3 (S.D.N.Y. May
22, 2020). Or a petitioner may petition the trial court or appropriate Appellate
Division for a writ of habeas corpus and seek review of any decision denying the
petition. Jd.3 A petitioner who challenges the execution, rather than validity, of his

or her sentence under Section 2254, “is still required to exhaust all of his state court
remedies before filing a habeas petition in state court, and... bears the burden of

3 Where petitioner’s claim is based on the trial court record, which is not the case
here, a petitioner may exhaust by filing a direct appeal to the relevant Appellate
Division and seeking leave to appeal to the New York Court of Appeals. See Elleby,
2020 WL 2611921, at *3.

establishing that [he or she] has met this requirement.” Rapeika v. Adm’ N. State
Prison, No. 20-cv-5358, 2020 WL 2092790, at *1. (D.N.J. May 1, 2020).
Section 2254 provides two narrow exceptions to the exhaustion requirement
in 28 U.S.C. § 2254(b)(1)(A). A federal court may grant a petitioner's unexhausted
petition for habeas corpus if (1) “there is an absence of State corrective process,” or
(2) “circumstances exist that render such process ineffective to protect the rights of
the applicant.” 28 U.S.C. § 2254(b)(1)(B)G)-Gi). In other words, exhaustion is not
required when “there is no further state proceeding for petitioner to pursue” or
where such pursuit “would be futile.” See Elleby, 2020 WL 2611921, at *4 (quoting
Lurie v. Wittner, 228 F.3d 118, 124 (2d Cir. 2000)).

B. Brooks’s Petition Must Dismissed for Failure to Exhaust

Brooks does not provide any evidence that he attempted to exhaust the
claims in his petition in state court—in fact, he asserts that he has not done so
because the courts are “closed.” Dkt. 1, at 4 § 14. Respondents did not locate any
filings or evidence that Brooks presented his claims to, or sought release in, a state
court. Dkt. 11-5, at 4. Brooks has not met his burden of establishing that he
exhausted his claims.

Nor does an exception to exhaustion apply here. Despite Brooks’s arguments
to the contrary, state court collateral review proceedings remain available to him.
See Elleby, 2020 WL 2611921, at *4. Brooks cites various state and national
executive orders to argue that the state courts are closed to him and that he is not
required to follow the ordinary procedures, regulations, etc. in pursuing his claims.

See, e.g., Dkt. 7-1, at 4-5 Jf 16-20. But courts across New York State have
considered, and resolved, claims and petitions seeking release from state custody in
connection with the COVID-19 pandemic. See, e.g., People ex rel. Squirrell v.
Langley, No. 500451/2020, 2020 WL 2736623 (Sup. Ct. Putnam Cty. May 25, 2020)
(dismissing habeas corpus petitions by inmates seeking release during the COVID-
19 pandemic where the court, after thoroughly examining the measures taken by
the sheriff and other officials, concluded there was no violation of petitioners’ due
process or Kighth Amendment rights); People ex rel. Gregor v. Reynolds, No. CV20-
0150, 2020 WL 1910116 (Sup. Ct. Essex Cty. Apr. 17, 2020) (concluding, where two
inmates filed article 70 petitions for release, the sheriffs failure to take adequate
protective measures violated the due process rights of one inmate who was
vulnerable to COVID-19); People ex rel. Stoughton v. Brann, No. 451078/2020, 2020
WL 1679209 (Sup. Ct. New York Cty. Apr. 6, 2020) (ordering the release of eighteen
“at-risk” prisoners in a due process challenge by thirty-two petitioners detained at
the Rikers Island prison).

Brooks’s claim that state courts are unavailable to him, “without further
factual or legal allegations to support his claim,” is “inadequate to show that there
[is or was] no available process in state courts.” Rapeika, 2020 WL 2092790, at *2.
While exhaustion requirements may be waived when “relief is truly unavailable,”
Brooks has not established that state courts are unavailable to him now, or were
unavailable when he filed this petition. See Money v. Pritzker, No. 20-cv-2093, No.
20-ev-2094, 2020 WL 1820660, at *21-22 (N.D. Ill. Apr. 10, 2020). Indeed, as

Defendants note, pursuant to the state court Administrative Order dated March 22,
2020, state courts remained open to “process essential proceedings, including
‘emergency applications related to the coronavirus.” Dkt. 11-5, at 4; see also Dkt.
11-4, Exh. 3. For the same reasons, Brooks did not demonstrate that pursuing his
request for release in state court would have been futile. See Elleby, 2020 WL
2611921, at *4.

Other federal courts have reached similar conclusions when faced with
habeas petitions seeking release from state custody based upon COVID-19. See
Griffin v. Cook, No. 3:20-cv-589 (JAM), 2020 WL 2735886, at *5 (D. Conn. May 26,
2020) (collecting cases); Elleby, 2020 WL 2611921, at *5.

Dismissing Brooks’s petition to allow him to exhaust his claims in state court
affords “the state court[] .. . the first opportunity to review [his] claim[s] and
provide any necessary relief.” See O’Sullivan, 526 U.S. at 844; see also Rose v.
Lundy, 455 U.S. 509, 515 (“[A]s a matter of comity, federal courts should not
consider a claim in a habeas corpus petition until after the state courts have had an
opportunity to act.”). Exhaustion also ensures that, if Brooks’s petition returns to
federal court, it will “be accompanied by a complete factual record to aid [the Court]
in [its] review.” See Rose, 455 U.S. at 519. A full factual record is particularly
important here, in light of the “rapidly changing conditions in prison and the
evolving steps that prisons are taking” to address COVID-19. See Elleby, 2020 WL
2611921, at *5.

10

Because Brooks did not exhaust his claims in state court or demonstrate that
state courts are unavailable to him,4 the Court dismisses his petition without
prejudice. Brooks may pursue his claims and request for release in state court and,
assuming he exhausts those remedies, may file a new petition in this Court.

Il. Brooks’s Motions to Amend Petition and for Expedited Hearing
In motions dated May 26-27, 2020, Brooks requests leave to amend his
petition to include new parties, as well as for an expedited hearing on his motion for

a temporary restraining order. See Dkts. 13, 14. Brooks alleges that Sergeant J.
Ferraioli and Correction Officer R. Iannozzelli retaliated against him “for filing this
Federal Habeas Corpus” action and for “exercising [his] lst Amendment guarantee
for the right to petition to the government for the redress of grievances.” Dkt. 13, at
1-2. According to Brooks, after he filed an inmate grievance complaint against

4 The Court notes that Brooks would have had to exhaust his claims and request for
relief in state court even if the Court had denied Respondents’ motion to convert the
petition and had analyzed Brooks’s claims under 28 U.S.C. § 2241. See Carmona v.
U.S. Bureau of Prisons, 243 F.3d 629, 632-35 (2d Cir. 2001) (citing the “requirement
of administrative exhaustion as spelled out in... decisional law” that applies to
Section 2241 petitions, and declining to excuse petitioner’s failure to exhaust);
Razzoli v. Strada, No. 10-cv-4802, 2013 WL 837277, at *2 (E.D.N.Y. Mar. 6, 2013)
(explaining that “[b]efore seeking habeas relief under § 2241, .. . prisoners must
exhaust any available administrative remedies, or else justify the failure to exhaust
these remedies,” and holding that petitioner was “not excused from his duty to
exhaust administrative remedies’).
5 Section 2254 allows a district court to, “in its discretion, deny on the merits habeas
petitions containing unexhausted claims.” See Lewis, 328 F. Supp. 2d at 405. The
Court declines to exercise that discretion here and leaves the merits of Brooks’s
Eighth Amendment and due process claims for the state court to decide in the first
instance.

11

Ferraioli, Ferraioli and Iannozzelli made false misbehavior reports and harassed
him. See Dkt. 14, at 4-7, [J 12-28; Dkt. 14, at 9-15 (attached complaints and
reports). Brooks asks the Court to issue an expedited temporary restraining order
“removing [him] from these unconstitutional restraints before [he is] subjected to
further harm, or issue an order of protection to the respondents.” Dkt. 14, at 7.
Brooks reiterates this request in his additional filings, including his memorandum
of law. Dkt. 15, at 7.
Brooks’s requests are without merit. By way of background, the Court
previously discussed the distinctions between a petition for a writ of habeas corpus
(seeking release from illegal custody) and a Section 1988 claim (protesting prison
conditions but not seeking release) at length in a prior decision. See Dkt. 10, at 9-
11. A Section 1983 action is the “proper remedy” for a state prisoner making a
constitutional challenging the constitutionality of the conditions of prison life, but
not the fact or length of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 498-99
(1973). This Court previously concluded that Brooks’s petition, to the extent it
sought only immediate release from Respondents’ custody, fell “squarely within
th[e] traditional scope of habeas corpus.” Dkt. 10, at 10 (citing Preiser, 411 U.S. at
487). To the extent Brooks still seeks the same relief—‘immediate and/or speedier
release from prison” and a TRO removing him from his “unconstitutional

12

constraints’6—his claims are properly analyzed as habeas corpus claims. See Dkt.
14, at 3 9 6; Dkt. 14, at 7.

Thus, a Section 2254 proceeding is not the proper vehicle for a First
Amendment claim like retaliation. See Miller v. Williams, No. 4:11-cv-65, 2012 WL
135670, at *1 (S.D. Ga. Jan. 17, 2012); see also Castro v. Martel, No. CIV S-08-2390-
MCE-TJB, 2010 WL 4880630, at *12 (E.D. Cal. Nov. 23, 2010) “Generally, a
prisoner’s complaint that prison officials are violating the prisoner’s First
Amendment rights must be raised in a civil rights action under § 1983, and not ina
§ 2254 habeas petition... Likewise, discriminatory retaliation claims must be raised
in a civil rights action under § 1983, and not in a § 2254 habeas petition.”). The
Second Circuit specifically held that retaliation against a prisoner for pursuing a
grievance violates the prisoner’s First and Fourteenth Amendment rights and,
therefore, is actionable under 42 U.S.C. § 1983. See Varel v. Demmon, 491 F. Supp.
2d 442, 450 (S.D.N.Y. 2007) (quoting Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.
1996)).

6 Alternatively, Brooks asks the Court to “issue an order of protection to the
respondents.” Dkt. 14, at 7; Dkt. 15, at 7. This Court interprets this “prayer for
relief’ as a continued request for release from custody, consistent with his other
filings. Even if the Court interpreted this request to mean injunctive relief short of
release—like ordering Respondents to stop retaliating against or harassing
Brooks—it is still not actionable under Section 2254, for the reasons discussed in
this order. If he wishes, Brooks may request relief related to any retaliation claim
in a future civil action. But such retaliation claims are not a basis for release from
custody.
13

In essence, Brooks asks this Court to “evaluate the potential success of a
retaliation claim,” which is unrelated to the propriety of his custody. See Miller,
2012 WL 135670, at *1 (citation omitted). Thus, to the extent Brooks’s motions seek
relief for alleged retaliation in violation of the First Amendment, they are not
cognizable under Section 2254. If he wishes to pursue these claims, Brooks must
seek relief in a separate suit under Section 1983.

For these reasons, the Court denies Brooks’s motions (Dkts. 18, 14). The
claims relating to retaliation are dismissed without prejudice.

CONCLUSION

For the reasons stated above, the Court: GRANTS Respondents’ motion to
dismiss the petition (Dkt.11); DENIES Brooks’s motion to amend and for expedited
hearing (Dkts. 13, 14); and DENIES Brooks’s motion to withdraw the Traverse
(Dkt. 16) as moot. The Clerk of Court is directed to close this case.
In addition, because the issues raised here are not the type of issues that a
court could resolve in a different manner, and because these issues are not
debatable among jurists of reason, the Court concludes that Brooks has failed to
make a substantial showing of the denial of a constitutional right, 28 U.S.C.
§ 2253(c)(2), and, accordingly, DENIES a certificate of appealability.
The Court also certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this judgment would not be taken in good faith and therefore DENIES leave to

14

appeal as a poor person. See Coppedge v. United States, 369 U.S. 438, 444-46
(1962).
Brooks must file any notice of appeal with the Clerk’s Office, United States
District Court, Western District of New York, within 30 days of the date of
judgment in this action. Requests to proceed on appeal as a poor person must be
filed with the United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.

SO ORDERED.
Dated: June 11, 2020
Buffalo, New York

JOHN He JR.
UNITED STATES DIST DGE

15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362356. Public record. Not legal advice.