Lallave v. Martinez

• Decision Date: 28 June 2022
• Docket Number: 22-CV-791 (NGG) (RLM)
• Citation: 609 F.Supp.3d 164
• Parties: Virginia LALLAVE, Petitioner, v. F. MARTINEZ, Jr., Patrick McFarland, and Michael Carvajal, Respondents.
• Court: U.S. District Court — Eastern District of New York

609 F.Supp.3d 164

Virginia LALLAVE, Petitioner,

v.F. MARTINEZ, Jr., Patrick McFarland, and Michael Carvajal, Respondents.

22-CV-791 (NGG) (RLM)

United States District Court, E.D. New York.

Signed June 28, 2022

Filed June 29, 2022

Marisol Orihuela, Pro Hac Vice, Jerome N. Frank Legal Services Organization Yale Law School, New Haven, CT, Sarah French Russell, Pro Hac Vice, Legal Clinic Quinnipiac University School of Law, Hamden, CT, Martin S. Cohen, Federal Defenders of NY, New York, NY, for Petitioner.

Kevin Yim, DOJ-USAO, Brooklyn, NY, for Respondents.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Petitioner Virginia Lallave petitions for a writ of habeas corpus under 28 U.S.C. § 2241, awarding declaratory and injunctive relief because the conditions of her confinement violate the Constitution and laws of the United States. For the reasons stated below, the Petition is DENIED.

I. BACKGROUND

On August 7, 2018, Petitioner was arrested on a complaint charging serious bodily injury resulting from narcotics distribution and conspiracy. (See Compl., United States v. Lallave , No. 19-CR-15 (AJN) (S.D.N.Y. Aug. 7, 2018) ("Lallave I ") (Dkt. 1).) Several months later, in January 2019, an indictment was returned, charging Petitioner with additional counts of narcotics distribution and conspiracy. (See Indictment, Lallave I , No. 19-CR-15 (AJN) (S.D.N.Y. Jan. 7, 2019) (Dkt. 14).) On July 3, 2019, Petitioner pled guilty to participating in a conspiracy to distribute substances containing a detectable amount of fentanyl and participating in a conspiracy to distribute and possess with intent to distribute substances containing a detectable amount of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. (See Plea Tr. at 10:1-14, Lallave I , No. 19-CR-15 (AJN) (S.D.N.Y. July 3, 2019) (Dkt. 26); Judgment, Lallave I , No. 19-CR-15 (AJN) (S.D.N.Y. Nov. 14, 2019) (Dkt. 37).) Petitioner was sentenced to 42 months’ imprisonment and three years of supervised release. (See Sentencing Tr. at 27:17-20, Lallave I , No. 19-CR-15 (AJN) (S.D.N.Y. Oct. 4, 2019) (Dkt. 41).)

On July 2, 2020, pursuant to the expanded authority of the Bureau of Prisons ("BOP") under the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act"), Petitioner was released from FCI Danbury and placed in the custody of the Bronx Community Reentry Center ("Reentry Center"). (Pet. (Dkt. 1) ¶¶ 12, 14; Mem. in Opp. ("Opp.") (Dkt. 14) at 5.) Since her release, Petitioner has been a home health aide for her father, who is on dialysis; the primary caretaker for her two children, a one-year old and ten-year old; employed doing maintenance; and has completed three courses. (Pet. ¶ 16.) The Reentry Center has supervised Petitioner and regularly tested her for controlled substance use. (Id. ¶¶ 19-20.) Prior to February 1, 2022, she had not faced any allegations of controlled substance use nor received any incident reports for other alleged violations of BOP rules. (Id. ¶ 20.)¹

On February 1, 2022, Petitioner was directed to report to the Reentry Center with a change of clothes. (Id. ¶ 21.) Upon her arrival, she was presented with an incident report, which indicated that her January 22, 2022 urine sample was positive for marijuana. (See Incident Report (Dkt. 15-2).) The report charged her with violating Code 112 of the BOP's Inmate Discipline Program. (Id. )

On February 2, 2022, a BOP investigator, J. Ortiz, met with Petitioner. Though the investigator advised Petitioner of her right to remain silent, she stated that she had stayed out of trouble for the past twelve months, described her various familial and employment obligations, and stated that she wanted to get into a program for her remaining sentence. (Investigation Record (Dkt. 15-6).) In addition to his conversation with Petitioner, Ortiz reviewed the incident report, the Reentry Center community agreement signed by Petitioner, the orientation checklist, the chain of custody form for the urine sample, and the results from the laboratory. (Id. ) Based on the evidence, Ortiz concluded that there had been a violation and referred the case to the Center Discipline Committee ("Discipline Committee") for a hearing. (Id. )

The same day, Petitioner was given a form titled "Notice of Center Discipline Committee Hearing." (Notice (Dkt. 15-7).) This form notified Petitioner that she was being referred to Discipline Committee based on her use of unprescribed narcotics. (Id. ) The form provides that "[y]ou are entitled to have a staff member represent you at the hearing," and Petitioner initialed next to "I (do not) wish to have a staff representative." (Id. ) The form further provided that she had the right to call witnesses and to present documentary evidence, but she signed that she would have no witnesses. (Id. ) She also received a form titled "Inmate Rights at Center Discipline Committee Hearing," which notified her of (i) her right to have a written copy of the charges against her at least 24 hours prior to appearing, (ii) the right to have a member of the staff represent her, (iii) the right to call witnesses and present documentary evidence, (iv) the right to remain silent, (v) the right to be present except during deliberations, (vi) the right to be advised of the Discipline Committee's recommendation and the BOP's decision, as well as the facts supporting the recommendation and decision, and (vii) the right to contest the decision within 20 days. (See Inmate Rights Form (Dkt. 15-8).) Petitioner signed this form acknowledging that she had been notified of these rights on February 2, 2022. (Id. ) In her Discipline Committee hearing, Petitioner again indicated that she had received a copy of the charges on February 1, 2022 and initialed that she was advised of the rights described above and waived many of these rights. (Discipline Committee Report (Dkt. 15-9).)

The Discipline Committee, which was composed of only one individual, A. Toribio, found that Petitioner had violated the BOP program and recommended loss of good time credits. (Id. ) The Discipline Committee Report was then forwarded to the Discipline Hearing Officer ("DHO"), N. Hayden, who determined that the Discipline Committee's findings were supported and imposed a sanction of 41 days of good conduct time. (See DHO Report (Dkt. 15-12).)

Also on February 2, 2022, Petitioner's counsel wrote to the Director of the Reentry Center, the BOP's Northeast Regional Counsel, and the BOP's Residential Reentry Manager requesting that Petitioner be returned to home confinement, that counsel be provided with the toxicology report, and that counsel be permitted to participate in procedures where sanctions such as revocation of home confinement were contemplated. (Pet. ¶ 22.) Petitioner asserts that this "letter constitutes a request for reasonable accommodations for her to meaningfully access BOP's home confinement program," as it "asked that the BOP take into consideration ... that she suffers from multiple physical and mental disabilities

including anxiety and severe migraines." (Id. ¶¶ 23-24.)

On February 3, 2022, Petitioner was given a copy of the Discipline Committee report signed by the DHO and instructions for administrative appeal. (Ltr. from P. McFarland (Dkt. 15-13).) She was informed that she would be confined to the Reentry Center for 30 days, but she was not given any documentation to that effect. (Pet. ¶ 33.)

From February 3, 2022 to February 8, 2022, Petitioner was confined to a room at the Reentry Center, which she was not permitted to leave. (Id. ¶ 32.) On February 8, 2022, U.S. Marshals picked up Petitioner at the Reentry Center and brought her to the Metropolitan Detention Center ("MDC") in Brooklyn. (Id. ¶ 33.) She was not permitted to show proof of vaccination

, which she had on her phone, and as a result, she was put in the Specialized Housing Unit, which was being used to quarantine unvaccinated new arrivals. (Reply (Dkt. 16) at 2 & n.2.)

On February 11, 2022, Petitioner filed the instant Petition, which asserted violations of procedural due process, substantive due process, the Eighth Amendment, the Accardi principle, the Rehabilitation Act, and a request for a Declaratory Judgment. (Pet. ¶¶ 42-68.) The Petition also included a request for enlargement, which the court granted because of the irreparable harm that incarceration would cause to Petitioner's family and employment, and Petitioner was released from the MDC on February 12, 2022. (See id. ¶¶ 69-72; Feb. 11, 2022 Order.) On February 21, 2022, Petitioner filed an administrative appeal with the BOP's Regional Office. (See Reg'l Admin. Remedy Appeal (Dkt. 15-1).)

On March 10, 2022, at 1:48am, Petitioner failed to respond to a required "check-in" request from the Reentry Center on her phone, which is part of the home confinement program. (Reply at 2-3.) Since Petitioner was sleeping, she failed to call back for two hours, though GPS showed that she was at her house. (Id. at 3.) She was again issued an incident report for violating a condition of the program. (Second Incident Report (Dkt. 16-2).) When she met with Reentry Center staff about this incident, her request to have counsel present was denied. (Reply at 3.) On March 16, 2022, Petitioner received a document from the BOP, which indicated that the DHO had found a violation and imposed sanctions of 14 days of loss of privileges. (June 7, 2022 Jt. Ltr. (Dkt. 26) at ECF pp. 1, 4.)² Subsequently, the BOP expunged this incident from Petitioner's record and represented both to Petitioner and to this court that the "BOP will not rely on the March 11 incident report in determining anything related to Petitioner's status on home confinement." (Id. at ECF p. 2.)

II. LEGAL STANDARD

A federal prisoner may petition for habeas relief if she "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A challenge under § 2241 is a challenge to the execution of a prisoner's sentence, as...