Schmiege v. NYSDOCCS
| Docket Number | 22-CV-849-LJV |
| Decision Date | 24 July 2023 |
| Parties | BRIAN E. SCHMIEGE, Petitioner, v. NYSDOCCS, Respondent. |
| Court | U.S. District Court — Western District of New York |
DECISION & ORDER
The pro se petitioner, Brian Schmiege, is a prisoner confined at the Five Points Correctional Facility (“Five Points”). He has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that he is receiving inadequate medical care while he is in state custody. Docket Item 1.
On February 15, 2023, the respondent moved to dismiss the petition on the grounds that Schmiege's claims are moot and not cognizable under 28 U.S.C. § 2254. Docket Item 8. Moreover, the respondent argues that even if Schmiege's claims are not moot and can be bought under 28 U.S.C. § 2254, he has not properly exhausted those claims. See id. On February 24, 2023, Schmiege responded to the motion to dismiss. Docket Item 10.
Schmiege then filed a motion for a default judgment, Docket Item 11 as well as a motion for “emergency injunct[ive] relief and for [his] immediate release from prison custody,” Docket Item 14. The respondent opposed Schmiege's motion for immediate release,[1] Docket Item 16, and Schmiege replied in further support of that motion, Docket Item 17. In his reply Schmiege requested a hearing and the appointment of counsel. See id. at 1.
For the reasons that follow, the respondent's motion to dismiss is granted, and Schmiege's motions are denied as moot.
FACTUAL BACKGROUND[2]
On November 16, 2017, Schmiege was sentenced in New York State Supreme Court, Niagara County, to four-and-one-third to eleven years' imprisonment for third-degree attempted burglary, second-degree auto stripping, a probation violation, and other offenses. Docket Item 1 at 1, 22. Schmiege appealed his convictions and sentence to the New York State Supreme Court, Appellate Division, Fourth Department, which affirmed. See People v. Schmiege, 173 A.D.3d 1824, 104 N.Y.S.3d 458 (4th Dep't 2019); People v. Schmiege, 173 A.D.3d 1685, 99 N.Y.S.3d 917 (4th Dep't 2019); People v. Schmiege, 172 A.D.3d 1897, 97 N.Y.S.3d 903 (4th Dep't 2019).
During his incarceration, Schmiege has suffered from a number of serious health ailments that have not been adequately treated. More specifically, Schmiege says that he is “still not rec[eiving] any kind of life[-]saving cancer care[,] heart treatments[,] or surger[ies] for nerve damage in [his] neck, back[, and] both arm[s].” Docket Item 1 at 5. “[T]he painful mass on [Schmiege's] left kidney [also] has gone untreated for years.” Id. Moreover, Schmiege suffers from four “very serious heart conditions.” Docket Item 17 at 1. Because of those health issues, Schmiege “ha[s] lost over 100 pounds and [his] health is rapidly declining.” Docket Item 1 at 5.
Schmiege “was finally seen by a nurse practi[]tioner . . . on [May 15, 2023,] at Elmira [Correctional Facility],” where he had been transferred from Five Points. Docket Item 14 at 1. That “was [his] first time being seen by a medical provider in over” one year and three months. Id. The nurse practitioner ordered medical testing “for all of [Schmiege's] well[-]documented medical conditions” and also “order[ed] Ensure protein shake[s].” Id. The test results showed “that [Schmiege's] cancer has spread and [his] liver and kidney and heart levels had gotten worse.” Id. at 1-2.
Schmiege then was transferred back to Five Points. Id. at 2-3. “Since [his] arrival back [at] Five Points,” Schmiege “ha[s] been deni[ed] all of [his] pain medications . . . and [has] been cut off of [his] Ensure prot[ein] shakes without being provided with any substitute or reasoning.” Id. at 3. He also has been denied access to addictiontreatment programs. Id. Schmiege alleges that he has been denied adequate medical care “out of reta[]liation because [he] reported [] misconduct” by a doctor at Five Points. Id. And Schmiege says that he does not have health insurance and will not be covered by insurance “until [he] get[s] released from prison custody.” Docket Item 17 at 2, 8.
Schmiege has sought relief in state court based on those medical ailments. More specifically, in August 2021, Schmiege moved to vacate his conviction and sentence under New York Criminal Procedure Law (“C.P.L.”) §§ 440.10(h) and 440.20(1). Docket Item 1 at 6, 24-33.
Schmiege argued that his sentence should be vacated under C.P.L. § 440.20(1) because of his “unusual health circumstances.” See id. at 30. And Schmiege argued that his conviction should be set aside under C.P.L. § 440.10(h) because he did not knowingly and voluntarily plead guilty to the violation of probation. See id. at 24-25.
On December 30, 2021, the New York State Supreme Court, Niagara County, denied Schmiege's motions under C.P.L. §§ 440.10 and 440.20. Id. at 22-23. Schmiege then asked for leave to appeal that decision to the Appellate Division, id. at 14-21, and the Appellate Division denied leave to appeal, id. at 35. After that, Schmiege filed this petition under 28 U.S.C. § 2254 in this Court. Docket Item 1.
As an initial matter, the respondent argues that Schmiege's claims of inadequate medical care must be brought under 42 U.S.C. § 1983 instead of 28 U.S.C. § 2254. Docket Item 8-6 at 6-13. That is, the respondent says that because Schmiege's claims challenge his conditions of his confinement-not his underlying convictions or the validity or length of his sentence-he cannot seek habeas relief. See id.
Courts in this Circuit have reached different conclusions as to whether a prisoner who seeks his or her release from state custody due to unconstitutional conditions of confinement may bring a habeas corpus petition under 28 U.S.C. § 2254 or instead must proceed under 42 U.S.C. § 1983. Compare, e.g., Tripathy, 473 F.Supp.3d at 226 (“[T]his Court has considered and rejected the argument that relief under [s]ection 1983 is available to a prisoner who, like etitioner, is in state custody and seeks release from custody as his sole remedy for allegedly unconstitutional conditions of confinement.”), with, e.g., Acevedo v. Capra, 545 F.Supp.3d 107, 118 (S.D.N.Y. 2021) (). The Second Circuit recently heard several appeals that might have resolved whether conditions-of-confinement claims can be brought under 28 U.S.C. § 2254, but the court dismissed those cases because even if the petitioners' claims were cognizable under section 2254, they were unexhausted. See Bowman v. Capra, 2023 WL 4339502, at *1-2 (2d Cir. July 5, 2023); Brooks v. Annucci, 2023 WL 4344581, at *1-2 (2d Cir. July 5, 2023); Green v. Quiros, 2023 WL 4345405, at *1-2 (2d Cir. July 5, 2023). And this Court similarly has dismissed conditions-of-confinement claims brought under 28 U.S.C. § 2254 for failure to exhaust without opining about whether those claims can be brought under section 2254 in the first instance. See Williams v. New York, 2020 WL 5995185, at *1-2 (W.D.N.Y. Oct. 8, 2020).
That same reasoning applies here. For the reasons stated below, Schmiege's claims are unexhausted and cannot proceed in this Court. Because the petition is dismissed for that reason, the Court need not and does not resolve whether section 2254 is the appropriate vehicle for Schmiege's conditions-of-confinement claims.
Section 2254 “generally requires a petitioner for a writ of habeas corpus to show that he [or she] has ‘exhausted the remedies available in the courts of the [s]tate' in order for the writ to be granted.” McCray v. New York, 573 Fed.Appx. 22, 23 (2d Cir. 2014) (summary order) (quoting 28 U.S.C. § 2254(b)(1)(A)). “Exhaustion of state remedies requires that a petitioner 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.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (alterations omitted) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)); see also Chrysler v. Guiney, 806 F.3d 104, 116 (2d Cir. 2015) ().
“[T]he failure to exhaust may be excused only in the rare case where ‘there is an absence of available [s]tate corrective process' or ‘circumstances exist that render such process ineffective to protect the rights of the applicant.'” Tripathy, 473 F.Supp.3d at 229 (quoting 28 U.S.C. § 2254(b)(1)(B)). “These exceptions are met ‘where there is no further state proceeding for [the] petitioner to pursue,' or ‘where further pursuit would be futile.'” Elleby v. Smith, 2020 WL 2611921, at *4 (alterations omitted) (quoting Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000)). On the other hand, “[i]t is well established that a petitioner may not bypass state courts merely because they may be unreceptive to the [petitioner's] claim[s].” Jones v. Keane, 329 F.3d 290, 295 (2d Cir. 2003).
Schmiege argues that he exhausted the claims in his petition through his motion to vacate his sentence under C.P.L. § 440.20.[3] Docket Item 10 at 2-3; Docket Item 11 at 1. But because C.P.L. § 440.20 cannot be used to raise the sort of claims that Schmiege raises here, his claims remain unexhausted.
C.P.L § 440.20 provides that at “[a]ny time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed[,] or otherwise invalid as a matter of law.” N.Y....
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