United States v. Komoroski

• Decision Date: 17 June 2020
• Docket Number: 3:17-CR-156
• Citation: 467 F.Supp.3d 227
• Parties: UNITED STATES of America v. Mark KOMOROSKI, Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

467 F.Supp.3d 227

UNITED STATES of America

v.Mark KOMOROSKI, Defendant

3:17-CR-156

United States District Court, M.D. Pennsylvania.

Signed June 17, 2020

C. D. Marchioli, US Attorney's Office - Criminal, Harrisburg, PA, for United States of America.

Albert J. Flora, Jr., Wilkes-Barre, PA, for Defendant.

MEMORANDUM

MALACHY E. MANNION, United States District Judge

I. BACKGROUND

On April 29, 2020, defendant Mark Komoroski, an inmate at FPC-Schuylkill, Minersville, Pennsylvania, filed, pro se , an Emergency Motion for Compassionate Release and request for Release to Home Confinement under 18 U.S.C. § 3582(c)(1)(A), based on the COVID-19 pandemic and his alleged "high risk of death from coronavirus infection in federal prison" due to his underlying sleep apnea condition, which he states requires him to use a CPAP machine, and which he characterizes as a "chronic lung disease." (Doc. 75 & Doc. 79 at 70 note of Dr. Kozicki stating that it is medically necessary for Komoroski to have a CPAP machine due to sleep apnea. The note also indicates that Komoroski is prescribed Lipitor and Fenofibrate for high cholesterol). Defendant states that he has filed an administrative request for home confinement with the Bureau of Prisons ("BOP") as well as his instant Emergency Motion for Compassionate Release which he filed with this court. Defendant attached Exhibits to his motion, including a copy of Warden's Finley's April 21, 2020 denial of defendant's March 26, 2020 request for Compassionate Release/Reduction in Sentence based on "Medical Circumstances." (Doc. 75 at 16). Defendant also attached a copy of an April 2020 decision from the District Court for the Southern District of New York, United States v. Scparta, ––– F.Supp.3d ––––, 2020 WL 1910481 (S.D.N.Y. 2020), (Doc. 75 at 17-25 & 75-1), which he alleges "proves this court has jurisdiction to order the compassionate release of the prisoner" who was suffering from sleep apnea, hypertension, high blood pressure and high cholesterol, since the inmate was more susceptible to death from COVID-19. Defendant states that the court in Scparta "order[ed] the immediate compassionate release to home confinement of the prisoner" due to the COVID-19 pandemic. The court in Scparta, also held that administrative exhaustion did not bar the defendant's motion for compassionate release. The court furhter held that that the First Step Act's exhaustion requirement "is not jurisdictional" and, that "the statute's exhaustion requirement is amenable to equitable exceptions." The Scparta case provides no precedential authority for this court and, it was decided in the Second Circuit and not the Third Circuit.

Defendant states that "if [he] becomes infected with the coronavirus while in custody of the [BOP], he will face imminent death from contracting COVID-19." Defendant contends that since he is "almost 58 years old" (DOB 07/22/1962) and suffers from sleep apnea he is a risk to suffer serious illness or death if he contracts COVID-19 and that this constitutes an "extraordinary and compelling reason" to release him from prison to home confinement. He further alleges that he does not pose any risk to the public.

In his motion, defendant Komoroski also refers to Attorney General Barr's March 26, 2020 Memorandum to the BOP regarding prioritization of home confinement for at-risk inmates due to the COVID-19 pandemic. Defendant alleges that he meets all of the factors to be considered for home confinement "as mandated by Attorney General Barr in his Memorandum", including his age, his sleep apnea, his confinement in a "minimum security federal prison camp", the length of his sentence (7-months), and he has been approved to by the BOP to be released to home confinement for the final 10% of his sentence, and his "exemplary" prison conduct. (Doc. 75 at 11-12).

Defendant states that he submitted a request to the BOP to consider him for immediate release to home confinement as compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Defendant's request was based on "severe breathing conditions." Defendant further alleges that "his requests [to the BOP] have been ignored and not answered." (Doc. 75 at 13). However, the April 21, 2020 response defendant attached to his motion from Warden Finely belies his contention that the BOP has not responded to his request. (Id. at 16).

Further, defendant does not allege in his motion that there are any positive cases of COVID-19 of any inmate or staff at FCI-Schuylkill, including the camp where he is confined, but he alleges that the prison's proximity to New York City puts inmates in the prison at risk of the virus.

As such, defendant requests the court to order his immediate release from prison and to allow him to serve the remainder of his sentence in home confinement with his wife and daughter, as compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A).

On May 20, 2020, the court directed the government to file a response to Komoroski's motion. (Doc. 76).

On May 28, 2020, the government filed its brief in opposition to Komoroski's motion with attached Exhibits, filed under Seal by court Order, i.e., defendant's BOP medical records. (Docs. 77, 79).

Komoroski requests the court to direct the BOP to release him from prison and direct that he serve the remainder of his sentence in home confinement. According to his PSR, (Doc. 40 at 10), Komoroski resided in Nanticoke, Luzerne County, Pennsylvania, prior to his incarceration.¹

To the extent Komoroski requests the court to direct the BOP to release him from prison to home confinement, or to amend his sentence to allow him to serve the remainder of his prison term in home confinement, due to COVID-19, his filing is a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), and it will be dismissed without prejudice for lack of jurisdiction due to his failure to exhaust his BOP administrative remedies.

To the extent Komoroski is deemed as seeking the court to order the BOP to find him eligible for immediate home confinement designation under the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act"), Pub. L. 116-136, § 12003, the court does not have authority to grant his request for relief and order the BOP to release him to home confinement.

II. DISCUSSION²

In his present motion, (Doc. 75), defendant Komoroski requests the court to order the BOP to immediately transfer from FPC-Schuylkill to home confinement and requests the court to allow him to serve the remainder of his 7-month prison sentence in home confinement due to the COVID-19 pandemic. Komoroski's filing is a motion compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Komoroski states that he is in danger of contracting the virus in the prison since the CDC safety measures cannot be practiced and that if he contracts the virus he will be at risk of suffering severe complications due to his sleep apnea medical condition. Based on these allegations, Komoroski that there exists extraordinary and compelling circumstances warranting his release from prison to home confinement.³

In its brief in opposition, (Doc. 77), the government initially argued that Komoroski's motion for compassionate release from prison to home confinement under 18 U.S.C. § 3582(c)(1)(A), should be dismissed because he has not exhausted his administrative remedies. The government, (Id. at 9), stated that "[Komoroski] submitted a request to the warden for Compassionate Release/Reduction in Sentence on March 26, 2020. Doc. 75, at 16. The request was based on "severe breathing conditions." Id. The warden denied that request on April 21, 2020. Id. "Komoroski has not appealed the warden's denial through the BOP's administrative-remedy process."

However, the government also noted in its brief, (Doc. 77 at 15 n. 2), that:

In certain cases, the Government has conceded that § 3582(c)(1)(A) ’s exhaustion requirement is satisfied when (as here) a defendant's request is denied by the warden within 30 days of receipt and 30 days have passed since the warden's receipt. The Department of Justice is currently reviewing its position on this issue. If, during the pendency of Komoroski's motion, undersigned counsel learns that the Department has completed its review and that the Department's position would support a finding of exhaustion in this case, then counsel will notify the Court.

On June 3, 2020, the government filed a supplement to its brief and indicated that after review by the DOJ regarding its position on exhaustion, "the Government no longer contends that Komoroski failed to satisfy § 3582(c)(1)(A) ’s exhaustion requirement", and that "[t]he Court should nonetheless deny Komoroski's motion on the merits." (Doc. 81).

Notwithstanding the government's withdrawal of its argument regarding exhaustion in this case, the court must still consider whether Komoroski has exhausted his BOP administrative remedies. As stated, Komoroski received a response from the Warden denying his request for compassionate release, and he has not yet appealed the response from the Warden. Also, since the Warden timely responded to Komoroski's March 26, 2020 request on April 21, 2020, Komoroski cannot directly file an appeal with the court without exhausting his administrative remedies. Only if the Warden fails to respond to the inmate's request within 30 days, can the inmate file his motion for compassionate release with the court without exhausting his BOP administrative remedies.

As the court in United States v. Smith, 2020 WL 2063417, *2 (N.D. Oh. April 29, 2020), explained:

Smith has also failed to fully exhaust his administrative remedies with respect to his original motion. Because the Warden explicitly denied his 2019 request for compassionate release, Smith needed to exhaust by appealing the Warden's decision. See 28 C.F.R. § 542.15(a) ; see also B.O.P. Program Statement 5050.50 § 571.63 (citing the Administrative Remedy Program appellate procedure as the proper method of administratively

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