Ilina v. Zickefoose, Civil No. 3:07cv1490 (JBA).

• Decision Date: 31 December 2008
• Docket Number: Civil No. 3:07cv1490 (JBA).
• Citation: 591 F.Supp.2d 145
• Court: U.S. District Court — District of Connecticut
• Parties: Viktoriya ILINA, Petitioner, v. Donna ZICKEFOOSE, Warden, FCI, Danbury, Respondent.

Page 145

591 F.Supp.2d 145

Viktoriya ILINA, Petitioner, v. Donna ZICKEFOOSE, Warden, FCI, Danbury, Respondent.

Civil No. 3:07cv1490 (JBA).

United States District Court, D. Connecticut.

December 31, 2008.

Brett Dignam, Sarah French Russell, Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, CT, for Petitioner.

Lauren M. Nash, Michelle Lynn Colson, U.S. Attorney's Office, New Haven, CT, for Respondent.

RULING ON RESPONDENT'S MOTION TO DISMISS

JANET BOND ARTERTON, District Judge.

Petitioner Viktoriya Ilina brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the conditions of her confinement at FCI Danbury and alleging that she has been denied necessary medical care at that facility in violation of her Eighth Amendment rights. Respondent Donna Zickefoose, the warden at FCI Danbury, has moved to dismiss on the ground that the case is not cognizable in habeas and should instead be brought as a Bivens action. As explained below, the Court concludes that, in light of the statutory text and the clear guidance from the Second Circuit, Ilina's claim is cognizable under § 2241.

I. Background

Petitioner Viktoriya Ilina alleges in her Second Amended Petition for a Writ of Habeas Corpus that she is "in custody in violation of the Constitution or laws ... of the United States" because officials at FCI Danbury, the prison facility in which she is incarcerated, have failed to attend to her serious medical needs. (2d Am. Compl. [Doc. # 21] ¶¶ 1, 27 (quoting 28 U.S.C. § 2241(c)(3)).) Following her conviction on federal conspiracy and racketeering charges, Ilina was sentenced to a 48-month term of imprisonment.¹ Due to her medical history—Ilina was diagnosed with cervical cancer in 1999—she was assigned initially to FMC Carswell in September 2006, where she received a course of progesterone treatment, recommended by her gynecologist, which had been prescribed for her for two decades. Ilina was transferred to FCI Danbury in November 2006 and continued to receive her hormone medication for the next five months. In April 2007, the prison pharmacy ceased renewing her prescription. When she inquired why, doctors at FCI Danbury gave her little explanation other than that "at her age having a period was unnecessary." Ilina then formally requested the hormone medication by filing an administrative grievance, citing the recommendations by her gynecologist and in her pre-sentence report. This grievance and her subsequent appeals were all denied.

Prison doctors continued to examine Ilina throughout 2007, but still did not prescribe her the requested hormone therapy, even after she developed a suspicious uterine mass and was examined by an outside gynecologist who confirmed the continued need for progesterone medication. Ilina filed the original petition, pro se, in August 2007, after which she developed further complicating medical symptoms. Counsel appeared on her behalf in February 2008 and subsequently amended her petition twice.

II. Discussion

The jurisdiction of a federal habeas court has long been described as having extraordinary breadth. See Ex Parte McCardle, 73 U.S. (6 Wall.) 318, 325-26, 18 L.Ed. 816 (1867) ("It is impossible to widen [habeas corpus] jurisdiction."). This is structurally confirmed by the Suspension Clause, which "protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account." Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 2247, 171 L.Ed.2d 41 (2008). As the federal habeas statute has evolved, it has even "expanded habeas corpus `beyond the limits that obtained during the 17th and 18th centuries.'" Rasul v. Bush, 542 U.S. 466, 474, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (quoting Swain v. Pressley, 430 U.S. 372, 380 n. 13, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977)). In practical terms, a leading treatise observes,

although cognizable [habeas] claims must affect the fact, length, or (possibly) conditions of confinement, such claims include challenges to the legality of holding the petitioner in custody at all ..., the type of sentence, the duration of sentence ... or, in some cases, (e.g., ones challenging administrative segregation or other incarcerative results of administrative disciplinary actions), the conditions under which that sentence is being served.

1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice & Procedure § 9.1 at 474-81 (5th ed. 2005) (footnotes omitted and emphasis added).

Respondent does not dispute that certain claims by prisoners challenging the conditions of their confinement are cognizable under § 2241. Rather, Respondent's position is that Ilina's particular claim— that prison officials have been deliberately indifferent to a serious medical need in violation of the Eighth Amendment—must be brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and in accordance with the exhaustion requirements of the Prison Litigation Reform Act of 1995. Because the relief Ilina is seeking—restoration of previously prescribed medical treatment—has no impact on the length of her incarceration at FCI Danbury, Respondent urges that the claim must be dismissed and reasserted in an ordinary civil-rights action. Ilina counters that the plain language of § 2241 imposes no such requirement. She argues that, based on her allegation that she is "in custody in violation of the Constitution," habeas is an entirely proper vehicle for asserting her Eighth Amendment claim, regardless of whether such a claim may also be brought as a Bivens action.

As the parties discussed at oral argument, the Second Circuit, in a line of cases tracing to the Supreme Court's decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), has long recognized that a claim challenging the conditions of a prisoner's confinement may be asserted in a federal habeas petition. See Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir.2008). The issue, then, is whether there is support for Respondent's contention that claims challenging only the quality or quantity of prison medical care are not the kind of conditions-of-confinement claims which are cognizable in habeas. A bit of history helps to illuminate the answer to that question.

Preiser held that habeas corpus is the "sole federal remedy" for a state prisoner's challenge to "the very fact or duration of his physical confinement," but the Court expressly left open the possibility that a constitutional challenge to prison conditions is also cognizable in habeas. 411 U.S. at 499-500, 93 S.Ct. 1827. According to Justice Stewart's opinion for the Court, "[w]hen a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal." Id. at 499, 93 S.Ct. 1827. Concurring in Kahane v. Carlson, 527 F.2d 492 (2d Cir.1975), Judge Friendly suggested that the statement of the law in this passage did not go far enough:

Preiser ... in no way decided that habeas corpus would not lie to challenge conditions of confinement; it decided only that a state prisoner who was seeking to challenge the length of confinement could not utilize 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), to avoid the exhaustion requirements of § 2254(b) and (c). Although Mr. Justice Stewart said only that the availability of habeas to challenge prison conditions was "arguable," 411 U.S. at 499, 93 S.Ct. 1827, the earlier cases cited by him, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), and Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), betrayed no uncertainty on the point.

Kahane, 527 F.2d at 498-99 (Friendly, J., concurring).

A few years later, the panel in Roba v. United States followed Judge Friendly's view and found that a gravely ill prisoner's "right not to be forceably transported by government officials" can be protected through a conditions-of-confinement challenge brought pursuant to § 2241. 604 F.2d 215, 219 (2d Cir.1979) ("[P]etitioner's challenge to his transfer while seriously ill would be a challenge to the conditions of his confinement, for which habeas corpus relief under § 2241 would be available."). In a subsequent decision primarily discussing the availability of attorney's fees under the Equal Access to Justice Act, the Second Circuit continued to adhere to Judge Friendly's interpretation of Preiser:

Habeas involves bringing the body of a prisoner before a court for an inquiry into the validity of his confinement, and the remedy granted by a court on the body of a prisoner need not be limited to the four or five remedies arising from the common law forms of the writ. Thus, as long as a prisoner meets the custody or other jurisdictional requirements of [§ 2241], habeas is the appropriate action to challenge conditions of confinement where the prisoner seeks to be moved in order to remedy past constitutional violations.

Boudin was in federal custody and met the requirements of 28 U.S.C. § 2241(c)(1) (1982). She sought to be moved out of administrative segregation because of the prison administration's previous constitutional violations. It is therefore appropriate to treat the part of Boudin's complaint seeking transfer to the general prison population as a petition for writ of habeas corpus.

Boudin v. Thomas, 732 F.2d 1107, 1111-12 (2d Cir.1984) (citations to Roba and other cases omitted); see also Vacchio v. Ashcroft, 404 F.3d 663, 668 (2d Cir.2005) ("Boudin remains good law in this Circuit").

Later cases further confirm the Second Circuit's interpretation of the scope of § 2241, and contain no language limiting § 2241's reach to where a prisoner merely "seeks to be moved" as the Boudin panel noted. In Abdul-Hakeem v. Koehler, the court recognized that Preiser's ...