Petition for Writ of Certiorari — Joshua Adam Schulte, Petitioner v. D. Baysore, Warden, et al.

Case: 25-740, 07/29/2025, DktEntry: 36.1, Page 1 of 2

E.D.N.Y. - Bklyn.

22-cv-766

22- cv-5841

23- cv-4855

23-cv-5241

23-cv-5656

23-cv-5988

23-cv-8513

24-cv-332

Komitee, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 29th day of July, two thousand twenty-five.

Present:

Eunice C. Lee,

Beth Robinson,

Myrna Perez,

Circuit Judges.

Joshua Adam Schulte,

Petitioner-Appellant,

v.

Warden Metropolitan Detention Center, (MDC),

25-740 (L), 25-742 (Con),

25-745 (Con), 25-748 (Con),

25-751 (Con), 25-752 (Con),

25-757 (Con), 25-758 (Con)

Respondent-Appellee,

David William Denton, Jr., Assistant U.S. Attorney, et al.,

Defendants-Appellees,

Unknown Defendants,

Defendants.

Appellant, proceeding pro se, moves for summary reversal. Upon due consideration, it is hereby

ORDERED that the motion is DENIED. In addition, with the exception of Appellant’s appeal in

Case: 25-740, 07/29/2025, DktEntry: 36.1, Page 2 of 2

No. 25-752, all remaining appeals are DISMISSED because they “lack[] an arguable basis either

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see 28 U.S.C. § 1915(e)(2).

Appellant is directed to file a scheduling notification pursuant to Local Rule 31.2 within 30 days

of the date of this order for appeal No. 25-752 only.

In addition to these eight appeals, Appellant has filed a number of other frivolous matters in this

Court, including the appeals docketed under 21-2702, 21-2877, and 21-3124. Accordingly,

Appellant is hereby warned that the continued filing of duplicative, vexatious, or clearly meritless

appeals, motions, petitions, or other papers could result in the imposition of a sanction that would

require Appellant to obtain permission from this Court prior to filing any further submissions in

this Court (a “leave-to-file” sanction). See In re Martin-Trigona, 9 F.3d 226, 229 (2d Cir. 1993);

Sassower v. Sansverie, 885 F.2d 9, 11 (2d Cir. 1989) (per curiam).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

SECOND

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------------------- x

MEMORANDUM & ORDER

22-CV-766(EK),

22- CV-5841(EK)(RML) ,

23- CV-4855(EK),

23-CV-5988(EK),

23-CV-5241(EK)(RML),

23-CV-5656(EK)(RML) ,

23- CV-8513(EK)(RML),

24- CV-00332(EK)(RML)

In Re: Joshua Adam Schulte

Metropolitan Detention Center

Litigation

---------------------------------------- x

ERIC KOMITEE, United States District Judge:

Petitioner Joshua Adam Schulte is an inmate in the

custody of the Bureau of Prisons.

He is presently at the U.S.

Penitentiary in Florence, Colorado.

Schulte was convicted (in

three trials) of espionage and related charges and child

pornography charges.

incarceration.

He is serving a sentence of 480 months'

Judgment 3, United States v. Schulte, 17-CR-548

(S.D.N.Y. February 5, 2024), ECF No. 1124.

Before his recent transfer to the Florence facility,

Schulte was detained at the Metropolitan Detention Center in

this district.

Schulte attempted to challenge conditions of his

confinement through the MDC's administrative grievance process —

some 100 times.

After the BOP declined to consider these

grievances on the merits, Schulte petitioned under 28 U.S.C.

§ 2241 for injunctions against certain conditions of his

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confinement at the MDC, where he was subject to Special

Administrative Measures ("SAMs") and assigned to a restricted

housing unit.

I held an evidentiary hearing on Schulte's

Section 2241 claims on September 5, 2023.

As explained below,

because Schulte is no longer confined in this district,

Schulte's petitions are now moot.

Schulte has also filed numerous complaints, acting pro

se and in forma pauperis, asserting Federal Tort Claims Act,

Bivens, and Religious Freedom Restoration Act ("RFRA") claims

for money damages and a Section 1983 claim for injunctive

relief.1

See 28 U.S.C. § 1346(b); 42 U.S.C. § 1983; 42 U.S.C. §

2000bb, et seq. ; Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388

(1971).

For the reasons set out below, these

claims are all dismissed under 28 U.S.C. § 1915(e) (2) (B) .

I.

Background

At the MDC, Schulte was in a restrictive unit called

"K-84."

According to its manager, this unit "houses inmates

that pose an unusually high risk to institutional security."

Bullock Decl. 51 4, ECF No. 30-1. Schulte was designated to K-84

Under 28 C.F.R. § 501.2(a), the

because he was subject to SAMs.

Attorney General may instruct the BOP to implement SAMs "to

1 Defendants for the FTCA and Bivens claims are David Denton, Jr.

Michael Lockard, Sean Collins, Catherine Hijbie, Vincent Lai, the United

States of America, and unknown others. In the RFRA action, the defendants

are the BOP and the Warden of the MDC. Finally, the defendant in the Section

1983 action is also the Warden of the MDC.

2

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prevent disclosure of classified information."

Schulte's SAMs

have been premised on this authority.

Schulte contends that the defendants subjected him to

unconstitutional, or otherwise unlawful, conditions of

confinement in K-84.

See Schulte Mem. 19-22, ECF No. 50-1.2

Moreover, he contends that his efforts to challenge these

conditions administratively were in vain.

Hr'g Tr.

See Sept. 5, 2023

("Tr.") 18:19-19:15, ECF No. 34; see also Pl.'s Ex. 4

(rejected grievance form).

For example, at the hearing on his

2241 claims, Schulte testified that the BOP rejected some of his

grievance forms because the transfers from the top page to the

carbon copies below were too faint — and rejected others because

he tried to manually darken the carbon copies.

Id. at 19:5-15.

Schulte has initiated three actions under Section

2241.

Schulte v. Warden, No. 22-CV-766, alleges that he was

being deprived of sleep, starved, shackled arbitrarily, exposed

to extreme cold, and denied a litany of conveniences, such as a

chair or a toilet seat.

in this action.

Schulte is represented by counsel only

Schulte v. Ma'at, No. 23-CV-4855, challenges

Schulte's restricted access to the MDC commissary.

And Schulte

v. Warden, No. 23-CV-5988, challenges the MDC's handling of

Schulte's mail.

2 Unless otherwise specified, all citations are to filings in Case No.

22-766.

3

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Schulte has also filed several other cases, in which

he remains pro se.

He has invoked the Federal Tort Claims Act,

Bivens, RFRA, and Section 1983 in Schulte v. United States, No.

22-CV-5841; Schulte v. Warden, No. 23-CV-5241; Schulte v.

Denton, 23-CV-5656; Schulte v. United States, No. 23-CV-8513;

and Schulte v. United States Federal BOP, 24-CV-332.3

II.

A.

Discussion

Section 2241 Petitions

According to Schulte, following the hearing and the

Court's inquiries on his 2241 claims, the MDC began abating

certain issues in Schulte's petitions.

66, ECF No. 50-2.

See Schulte Decl. W 65-

For example, in response to Schulte's concern

that he was being deprived of sleep because MDC personnel

regularly slammed a metal slot in his cell door during nightly

rounds, the MDC "replaced the rubber padding for each occupied

cell's door slot in K-84," to "create a sound-dampening effect."

See Maffeo Decl. M 4-5, ECF No. 50-6.

As to any deficiencies in Schulte's conditions of

confinement at the MDC not remedied before his transfer to the

Florence facility, Schulte's Section 2241 petitions are now moot

because of his departure from the MDC.

See Thompson v.

3 Schulte has also invoked Fed R. Crim P. 41(g) in Schulte v. Denton,

23-CV-5656.

The purported Rule 41(g) claim in Denton is indistinguishable

from the claim dismissed in Schulte v. United States, No. 22-CV-5841, 2023 WL

3688106 (E.D.N.Y. May 25, 2023), which this Court will not revisit.

4

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Choinski, 525 F.3d 205, 209 (2d Cir. 2008).

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The petitions are

accordingly denied.

B.

Federal Tort Claims Act Claims

Schulte's claims under the FTCA are not moot, given

that Schulte seeks financial remuneration.

A prison transfer

"does not moot an action for damages" brought "against the

transferring facility."

Cir. 1996).

Prins v. Coughlin, 16 F.3d 504, 506 (2d

Schulte seeks damages for his conditions of

confinement, as well as for torts allegedly committed during a

search of his cell.

These claims are denied, with leave to replead,

because Schulte has not pleaded proper presentment.

Unlike the

administrative exhaustion requirement for the Prison Litigation

Reform Act ("PLRA") that this Court has waived, as discussed

below, the presentment requirement for FTCA claims is

"jurisdictional and cannot be waived."

Celestine v. Mount

Vernon Neighborhood Health Ctr., 403 F.3d 76, 82

(2d Cir. 2005).

Under the principle of sovereign immunity, "the United

States may not be sued without its consent and [] the existence

of consent is a prerequisite for jurisdiction."

v. Mitchell, 463 U.S. 206, 212 (1983).

United States

When the government does

consent to suit, it can place conditions and limitations on that

consent, which must be strictly observed.

453 U.S. 156, 161 (1981).

Lehman v. Nakshian,

Effectively, the conditions and

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limitations constitute a retention of sovereign immunity.

Adeleke v. U.S. 355 F.3d 144, 154 (2d Cir. 2004)

See

(describing

retained sovereign immunity).

In the FTCA, the government conditioned its limited

waiver of immunity on the prerequisite that "the claimant shall

have first presented the claim to the appropriate Federal

agency."

28 U.S.C. § 2675(a).

After presentment, a plaintiff

may not sue until the claim is "finally denied by the agency,"

either "in writing" or by "failure ... to make [a] final

disposition . . . within six months after [the claim was]

filed."

Id.

"The burden is on the plaintiff to both plead and

prove compliance with the [FTCA's] statutory requirements,"

including exhaustion.

In re Agent Orange Prod. Liab. Litig.,

818 F.2d 210, 214 (2d Cir. 1987).

A claim "that does not set forth a specific demand for

damages in a sum certain does not adequately 'present' a claim"

under the FTCA.

Manchanda v. Lewis, No. 21-1088-CV, 2021 WL

5986877, at *3 (2d Cir. Dec. 17, 2021)

(citing Romulus v. United

States, 160 F.3d 131, 132 (2d Cir. 1998)); see Collins v. United

States, 996 F.3d 102, 105 (2d Cir. 2021).

Schulte has not adequately pleaded presentment.

He

alleges in one of his FTCA complaints (but not the other) that

he has "filed numerous separate Federal Tort Claims Act ('FTCA')

notices."

See Compl. 2, ECF No. 1 (23-CV-8513).

6

He has not

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filed those forms with this court.4

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Even crediting this

allegation and assuming Schulte filed these forms with the

relevant agencies, Schulte has not pleaded that he demanded a

sum certain for each of his claims.

Furthermore, even assuming Schulte had properly

presented his claims, he has also not pleaded that those claims

were "finally denied by the agency," either "in writing" or by

"failure ... to make [a] final disposition . . . within six

months after [the claim was] filed."

28 U.S.C. § 2675(a).

Schulte's submission contains no allegation that any of his

claims was denied in writing, nor of when he filed his FTCA

notices.

"[T]he Supreme Court has made clear that prematurely-

filed FTCA claims should be dismissed without prejudice . . .

Manchanda, 2021 WL 5986877, at *5 n.3 (citing McNeil v. United

States, 508 U.S. 106, 111-13 (1993)).

Schulte must accordingly

plead that his FTCA claims were not filed prematurely.

Because Schulte has not adequately alleged presentment

and final denial, he has not met his burden to overcome

sovereign immunity.

See Agent Orange, 818 F.2d at 214.

Consequently, the FTCA claims are dismissed under 28 U.S.C.

§ 1915(e)(2)(B)(iii) because they "seek[] monetary relief

against a defendant who is immune from such relief."

Bantis v.

4 The Court reviewed the dockets of all of the above-captioned cases

for any such forms, or descriptions of their contents and filing dates, but

found none.

7

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Gov't USA, No. 23-CV-2492, 2023 WL 3977367, at *2 (S.D.N.Y. June

12, 2023) .

C.

Other Claims

Schulte has also asserted Bivens and RFRA claims for

money damages based on security measures that were taken in the

K-84 SAMs unit, and impediments on his ability to pray in

accordance with his Muslim faith, respectively.

Additionally,

he brings a Section 1983 claim for injunctive relief.

These

claims are subject to the PLRA's administrative exhaustion

requirement.

See Macias v. Zenk, 495 F.3d 37, 40 (2d Cir. 2007)

(citing 42 U.S.C. § 1997e(a)).

Unlike the FTCA's presentment

requirement, the PLRA's requirement of administrative exhaustion

"is not jurisdictional," and thus a district court may "dismiss

plainly meritless claims without first addressing" PLRA

exhaustion.

Woodford v. Ngo, 548 U.S. 81, 101 (2006).

Schulte's Bivens, RFRA, and Section 1983 claims are, for the

reasons discussed below, "plainly meritless" and are dismissed.

1.

Bivens Claims

Schulte asserts multiple Bivens claims based on

security measures in the MDC's K-84 unit, including:

confiscation of a government laptop; preventing Schulte from

access to the time of day to facilitate timely prayer; and the

same conditions of confinement that he objects to above.

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The Supreme Court has expressly held that "a Bivens

cause of action may not lie where, as here, national security is

at issue."

Egbert v. Boule, 596 U.S. 482, 494 (2022) .

That

rule forecloses Schulte's claims, all of which challenge efforts

to preserve national defense information in a SAMs Unit.

2.

RFRA Claims

Schulte brings RFRA claims, alleging that his

confinement in the K-84 unit meant that he could not participate

in Jumua'ah Friday prayers in congregation and could not observe

the morning daily prayer because he lacked an alarm clock.

See

Compl., ECF No. 1 (24-CV-332).

The federal government has not waived its sovereign

immunity under RFRA.

Commack Self-Serv. Kosher Meats Inc. v.

New York, 954 F. Supp. 65 (E.D.N.Y. 1997); Johnson v. Killian,

No. 07-CV-6641, 2013 WL 103166, at *3 (S.D.N.Y. Jan. 9, 2013);

Sossamon v. Texas, 563 U.S. 277, 286-88 (2011)

(interpreting

language identical to RFRA in the Religious Land Use and

Institutionalized Persons Act).

Therefore, Schulte's RFRA

claims must be dismissed.

3.

Section 1983 Claim

Schulte seeks an injunction under 42 U.S.C. § 1983

ordering the warden of the MDC to return a book allegedly

This relief is unavailable

confiscated from Schulte's mail.

because the federal government is not subject to 42 U.S.C. §

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1983.

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E.g., Richardson v. McKnight, 521 U.S. 399, 403

(1997).

Even if Schulte's pro se complaint is construed liberally as a

Section 2241 claim seeking to enjoin a condition of confinement

at the MDC, see, e.g.,

Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006), such a claim is moot for the

reasons discussed above.5

D.

Conditions of Confinement in Colorado

Schulte filed a letter dated July 24, 2024 stating

that his conditions of confinement at USP Florence are

preventing him from litigating his cases.

See Ltr., ECF No. 8

(23-cv-5656); Ltr., ECF No. 12 (23-cv-8513).6

Specifically,

Schulte writes that a) all mail sent to him, including from

prosecutors and judges, must be approved by the FBI and BOP; and

b) he has been banned from accessing the BOP's law library, his

grievances regarding library access have been denied, and thus

he cannot obtain legal information or court addresses to file

for habeas relief.

Id.

This Court is the incorrect forum for any claim

regarding conditions of confinement in Colorado.

"The plain

language of the habeas statute . . . confirms the general rule

that for core habeas petitions challenging present physical

5 I have considered Schulte's other arguments, none of which is fully

developed, and found them to be without merit.

6 These letters are identical.

23-CV-5656 and 23-CV-8513.

Shulte filed the letters on two dockets:

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confinement, jurisdiction lies in only one district: the

district of confinement."

443 (2004).

Rumsfeld v. Padilla, 542 U.S. 426,

The address for the Clerk of Court at the District

of Colorado is: United States District Court, attn: Clerk of the

Court, 901 19th Street, Room A105, Denver, CO 80294-3589.

Finally, Schulte requests pro bono counsel.

See Mot.

to Appoint Counsel, ECF No. 7 (23-cv-5656); Ltr., ECF No. 8 (23cv-5656); Ltr., ECF No. 12 (23-cv-8513).

This request is

denied, as all of his claims in this district are dismissed.

III. Conclusion

Schulte's petitions for writs of habeas corpus are

denied.

All other claims in the above-captioned cases are

dismissed under 28 U.S.C. § 1915(e)(2)(B).

The Clerk of Court

is respectfully directed to close all of the above-captioned

cases.

SO ORDERED.

/s/ Eric Komitee_________

ERIC KOMITEE

United States District Judge

Dated:

September 4, 2024

Brooklyn, New York

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Case: 25-740, 09/04/2025, DktEntry: 41.1, Page 1 of 2

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on

the 4th day of September, two thousand twenty five,

Present:

Eunice C. Lee,

Beth Robinson,

Myrna Perez,

Circuit Judges.

Joshua Adam Schulte,

Petitioner - Appellant,

v.

ORDER

Docket Nos.

25-740 (L), 25-742 (Con),

25-745 (Con), 25-748 (Con),

25-751 (Con), 25-757 (Con),

25-758 (Con).

Warden Metropolitan Detention Center, (MDC),

Respondent - Appellee,

David William Denton, Jr., Assistant U.S. Attorney,

Assistant U.S. Attorney, Michael D. Lockard, Assistant

United States Attorney, Sean Collins, Catherine Hijbie,

Vincent Lai, United States of America, United States

Bureau of Prisons, S. Ma'at,

Defendants - Appellees,

v.

Unknown Defendants,

Defendant.

Appellant filed a motion for reconsideration and the panel that determined the motion has

considered the request.

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IT IS HEREBY ORDERED, that the motion is denied.

For The Court:

Catherine O'Hagan Wolfe,

Clerk of Court

Additional material

from this filing is

available in the

Clerk's Office.