Tripathy v. Schneider, # 20-CV-6366-FPG

• Decision Date: 15 July 2020
• Docket Number: # 20-CV-6366-FPG
• Citation: 473 F.Supp.3d 220
• Parties: Sanjay TRIPATHY, Petitioner, v. A. SCHNEIDER, Acting Superintendent, Gowanda C.F., DOCCS, et al., Respondents.
• Court: U.S. District Court — Western District of New York

473 F.Supp.3d 220

Sanjay TRIPATHY, Petitioner,

v.A. SCHNEIDER, Acting Superintendent, Gowanda C.F., DOCCS, et al., Respondents.

# 20-CV-6366-FPG

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

Signed July 15, 2020

Filed July 17, 2020

Sanjay Tripathy, Gowanda, NY, pro se.

Margaret Ann Cieprisz, New York State Attorney General's Office, New York, NY, Arlene Roces and Laura Lampert, for Respondents.

DECISION AND ORDER

FRANK P. GERACI, JR., Chief Judge

INTRODUCTION

Pro se Petitioner Sanjay Tripathy, a prisoner in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), has filed an Emergency Petition Due to Corona Virus/COVID-19/SARS-CoV2 ("Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (" Section 2254"). ECF No. 1. Petitioner primarily asserts that the ongoing COVID-19 pandemic has rendered the conditions of his confinement unconstitutional under the Eighth Amendment of the United States Constitution. Respondents have filed a Motion to Dismiss for Failure to State a Claim, arguing that Petitioner's claims are not cognizable in a federal habeas proceeding and, in any event, are unexhausted. ECF No. 6. For the reasons set forth below, the Court finds that the Petition is a "mixed petition" containing both exhausted and unexhausted claims. The Court further finds that dismissal of the Petition without prejudice, with leave to refile upon completion of exhaustion proceedings, is the appropriate course because dismissal will not jeopardize the timeliness of a subsequent Section 2254 petition. Therefore, the Court GRANTS Respondents’ Motion to Dismiss in part, to the extent it seeks dismissal of the Petition based on the failure to exhaust state remedies as to the conditions of confinement claim, and denies it in all other respects. The Petition is DISMISSED WITHOUT PREJUDICE.

BACKGROUND

Petitioner is incarcerated pursuant to a judgment entered on July 11, 2018, in New York State Supreme Court (New York County), following a jury verdict convicting him of first-degree criminal sexual act, first-degree sexual abuse, second-degree strangulation, second-degree assault, and second-degree unlawful imprisonment. Petitioner is serving an aggregate determinate sentence of seven years’ imprisonment at Gowanda Correctional Facility ("Gowanda C.F."). His earliest release date is May 15, 2024, at which time he will be subject to seven years’ post-release supervision.¹

According to Petitioner, his appellate counsel perfected his direct appeal in October 2019 in the Appellate Division, First Department, New York State Supreme Court. However, Petitioner states, the District Attorney's Office has not yet filed its brief in opposition. See ECF No. 1 at 4-5, 16-17.

In the Petition dated May 27, 2020, Petitioner contends that he is at increased risk of contracting COVID-19 and experiencing severe illness or death due to his age (50 years-old) and the following medical conditions: high blood pressure

, heart disease, allergies, "respiratory illness/asthma," high cholesterol, diabetes, and obesity. Petitioner also states that he suffered a stroke in March 2015. Id. at 3, 6. As a result of his complicating medical conditions, he asserts, his continued incarceration during the COVID-19 pandemic violates his Eighth Amendment right not to be subjected to cruel and unusual punishment. Id. at 2-3, 6-8. Petitioner seeks temporary release from prison and placement on home confinement in North Carolina during the COVID-19 pandemic. He states that once the pandemic is over, he will return to DOCCS custody to finish serving his sentence. Id. at 3, 10. As a second basis for the writ, Petitioner cites the "undue delay" by the District Attorney's appeals unit in filing its opposition to Petitioner's brief on direct appeal. Id. at 3, 4-5, 16-17.

Respondents responded to the Petition by filing a Motion to Dismiss for Failure to State a Claim, ECF No. 6. Respondents argue that Petitioner's claim based on the conditions of confinement is properly the subject of a civil rights action under 42 U.S.C. § 1983 (" Section 1983") and is not cognizable in a habeas corpus petition under Section 2254. ECF No. 6-3 at 3-5. Respondents contend that, even were Petitioner's Eighth Amendment claim cognizable in this Section 2254 proceeding, he cannot obtain federal habeas corpus relief on it because it is unexhausted. Id. at 5-8. Respondents argue that Petitioner's stand-alone claim based on appellate delay is unexhausted. Respondents further assert that any delay in Petitioner's appellate proceedings has not been so unreasonable as to warrant excusing the exhaustion requirement as to both claims. Id. at 8-12.

On June 26, 2020,² Petitioner filed a Response, ECF No. 8, to Respondents’ Motion to Dismiss. On July 4, 2020, he filed an Addendum, ECF No. 9, to his Response. On July 8, 2020, Respondents filed a Reply, ECF No. 10, with Supplemental Authorities, ECF No. 10-1, to Petitioner's Response and Addendum.

DISCUSSION

I. Motions to Dismiss in the Section 2254 Context

By their express terms, the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rules") apply to Section 2254 petitions. See Habeas Rule 1(a), 28 U.S.C. § 2254. Habeas Rules 4 and 5 require the respondent to file an answer and specified records from the underlying proceedings. See id. , Rules 4 & 5, 28 U.S.C. § 2254. However, Habeas Rule 12 does permit the discretionary use of the Federal Rules of Civil Procedure, when appropriate. See id. , Rule 12 (formerly Rule 11), 28 U.S.C. § 2254 ("The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules."); see also Fed. R. Civ. P. 81(a)(4) ("These rules apply to proceedings for habeas corpus ... to the extent that the practice in those proceedings: (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has previously conformed to the practice in civil actions."). In this District, respondents may file a motion to dismiss pursuant in lieu of an answer, as Respondents did here.

In proceedings under Section 2254, courts generally have applied "the familiar standards in Rule 12(b)(6) of the Federal Rules of Civil Procedure ... to the government's motion to dismiss." Walker v. Kelly , 589 F.3d 127, 138 (4th Cir. 2009) (citation omitted); see also , e.g. , Williams v. Breslin , 274 F. Supp. 2d 421, 425 (S.D.N.Y. 2003) (citations omitted). "[A] defendant may base such a motion on either or both of two grounds: (1) a challenge to the ‘sufficiency of the pleading’ under Federal Rule of Civil Procedure 8(a)(2) ; or (2) a challenge to the legal cognizability of the claim." Shuler v. Brown , No. 07-CV-0937, 2009 WL 790973, at *3 (N.D.N.Y. Mar. 23, 2009) (footnotes omitted; citing, inter alia , Wynder v. McMahon , 360 F.3d 73, 80 (2d Cir. 2004) ).

When ruling on a motion to dismiss, a court must accept all facts alleged in the complaint or petition as true, drawing all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). But a court need not accept unsupported legal allegations or legal conclusions couched as factual allegations. Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal citations and quotation marks omitted). Nonetheless, where a complaint fails to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests," it should be dismissed. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

In ruling on a motion to dismiss, a court "may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (citing Kramer v. Time Warner Inc. , 937 F.2d 767, 774 (2d Cir. 1991) ("[C]ourts routinely take judicial notice of documents filed in other courts, again not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings."); other citation omitted).

II. Cognizability of the Conditions of Confinement Claim

Respondents move to dismiss the Petition on the basis that the Eighth Amendment conditions of confinement claim is not cognizable in a Section 2254 proceeding and that the relief Petitioner seeks is only available under Section 1983. As Petitioner notes, this Court has considered and rejected the argument that relief under Section 1983 is available to a prisoner who, like Petitioner, is in state custody and seeks release from custody as his sole remedy for allegedly unconstitutional conditions of confinement. E.g. , Holloway v. Wolcott , No. 20-CV-6329-FPG, 2020 WL 3172772, at *3 (W.D.N.Y. June 15, 2020) ("[T] the relief Petitioner seeks is not available under 42 U.S.C. § 1983. However, the unavailability of such relief under Section 1983 does not foreclose the relief Petitioner seeks under Section 2254.") (citing Steward v. Wolcott , No. 20-CV-6282-FPG, 2020 WL 2846949, at *4 & n. 5 (W.D.N.Y. June 2, 2020) ; Preiser v. Rodriguez , 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ("[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.")); see also id. at *2, *3 (citing Thompson v. Choinski , 525 F.3d 205, 209 (2d Cir. 2008) ).

Notwithstanding these...