United States v. Rodriguez

Decision Date25 November 2019
Docket NumberCase No. 17-cr-00021-WHO-1
Citation424 F.Supp.3d 674
Parties UNITED STATES of America, Plaintiff, v. Antonio RODRIGUEZ, Defendant.
CourtU.S. District Court — Northern District of California

Helen L. Gilbert, U.S. Attorney's Office, San Francisco, CA, for Plaintiff.

Gabriela Bischof, Federal Public Defender, San Francisco, CA, for Defendant.

ORDER DENYING WITHOUT PREJUDICE MOTION FOR COMPASSIONATE RELEASE

Re: Dkt. No. 49

William H. Orrick, United States District Judge

INTRODUCTION

I am disturbed by the Bureau of Prison's ("BOP") decision-making concerning and treatment of defendant Antonio Rodriguez, a paraplegic whom I sentenced on August 10, 2017. The BOP originally sent him (after many interim stops) to FCI Allenwood, which apparently could not provide the assisted physical therapy his medical records demonstrated that he needed. When the BOP recognized its error, it inexplicably transferred him to a Medical Facility (FMC Devens) where he could not be placed in the general population, necessitating his placement in a segregated housing unit ("the SHU"). Faced with the deterioration of his mental health, an even more serious risk than the BOP's continued inability to maintain his physical health, Rodriguez signed a waiver refusing medical services in order to transfer out of the SHU and FMC Devens. The BOP shipped him back to FCI Allenwood, failed to provide the medical services it previously concluded he needed, and now claims that those services are no longer necessary.1

As a result of the BOP's mind-boggling conduct, Rodriguez seeks compassionate release due to his declining physical condition, difficulty taking care of himself in prison, and the BOP's demonstrated inability or unwillingness to provide him with the physical therapy and medical care that he needs.

The present medical record does not establish that the severity of the deterioration of his physical condition alone warrants granting Rodriguez's motion. He argues, in the alternative, that the totality of circumstances support a finding of "extraordinary and compelling reasons" to grant relief.

If Rodriguez was not coming to a nearby Residential Reentry Center ("RRC") on January 14, 2020, where the government has promised that he will receive the services he has been requesting, I would likely grant the motion. However, my concern about Rodriguez's welfare is balanced by my desire that he serve the sentence that I imposed. The record of his current physical health is confused in light of a recent evaluation at the BOP that contradicts the earlier ones. Because of the representation of the government that Rodriguez will receive assisted physical therapy services and necessary medical equipment (such as a standing frame) while at the RRC, and the short time between now and his arrival at the RRC, I will deny the motion without prejudice. But should the representations regarding services at the RRC prove untrue, I may sua sponte grant the requested relief. Given the record in this case, and to ensure that Rodriguez is receiving the services he needs, a Status Conference is scheduled for January 30, 2020, at 1:30 p.m. I direct that Probation Officer Gerstel file a written report by January 23, 2020, informing me and the parties whether the RRC is providing the promised services.

BACKGROUND
I. FACTUAL BACKGROUND

On September 5, 2019, Rodriguez filed a motion for compassionate release pursuant to the First Step Act ("FSA"), newly amended 18 U.S.C. § 3582(c)(1)(A)(i). Motion for Compassionate Release ("Mot.") [Dkt. No. 49] 1. Rodriguez requests that I resentence him to home-confinement due to his declining physical condition, difficulty taking care of himself in prison, and the BOP's demonstrated inability or unwillingness to provide him with the physical therapy and medical care that he needs. Id.

A. Medical Condition Before Incarceration

In 2010, Rodriguez suffered rib, spine and sternal fractures

due to gunshot wounds. Declaration of David Rizk in Support of Motion for Compassionate Release ("Rizk Decl.") [Dkt. No. 50], Ex. C (October 2011 medical record from Kaiser primary care physician). He also suffered a spinal cord severance, rendering him paraplegic. Id. Medical care providers who examined him in the years prior to his incarceration found that Rodriguez requires "help from a caregiver for most of his day to day needs." Id. ; see also Rizk Decl., Ex. D (July 2012 medical record from Kaiser Spinal Cord Wellness Clinic recommending daily use of a standing frame and exercise with the assistance of a physical therapist); Ex. E (February 2013 correspondence from Rodriguez's physical therapist recommending the same); Ex. F (April 2013 medical record from Kaiser Spinal Cord Wellness Clinic noting Rodriguez was receiving assistance from his brother to complete his exercises); Ex. G (January 2015 medical record from Kaiser recommending continued physical therapy); Ex. H (December 2015 medical record from Kaiser noting improvements following one year of therapy). In particular, Rodriguez's doctor recommended physical therapy to mitigate the tightness and spasticity in his legs. Rizk Decl., Ex. I (February 2016 medical record from Kaiser). Rodriguez's brother confirms that he was aiding his brother twice daily with exercises, stretches, and transfers to a standing frame up until the point when Rodriguez went into federal custody. Mot. 5; see Declaration of Anthony Rodriguez in Support of Motion for Compassionate Release [Dkt. No. 51], ¶ 5.

On January 12, 2017, Rodriguez was charged with one count of violating 18 U.S.C. § 922(g)(1), felon in possession of a firearm. Indictment [Dkt. No. 1]. He violated the conditions of his pre-trial release with a second firearms violation as well as a failed drug test. Presentence Report [Dkt. No. 35] ¶ 4. He pleaded guilty. On August 10, 2017, I sentenced Rodriguez to 41 months in prison followed by three years of supervised release. Judgment [Dkt. No. 39]. Rodriguez was committed to BOP custody on December 22, 2017. His current statutory release date is projected to be July 29, 2020 and his expiration of full term date is projected to be January 6, 2021. Rizk Decl., Ex. K.

B. Transfer from FCI Allenwood to FMC Devens for Physical Therapy Services

Rodriguez has been moved multiple times while in BOP custody. Mot. 6. Following sentencing, he was transferred to Santa Rita County Jail on September 14, 2017, Nevada Southern Detention Center on November 15, 2017, FTC Oklahoma City on November 30, 2017, FCI El Reno Oklahoma City on December 22, 2017, back to FTC Oklahoma City on February 24, 2018, FCI Allenwood on March 12, 2018, FMC Devens on December 6, 2018, and back to FCI Allenwood on March 12, 2019, where he remains now. Mot. 6; Rizk Decl., Ex. A (compassionate release request sent on January 30, 2019 detailing his multiple transfers while in BOP custody).

Rodriguez claims that starting in late 2017 and continuing through 2018 and 2019, he submitted numerous requests for access to physical therapy services, but BOP rejected his requests. Mot. 6; Rizk Decl., Ex. M (compilation of inmate request forms sent by Rodriguez). Rodriguez cites numerous medical records from BOP as evidence that he was not given the physical therapy services prescribed to him. Mot 6 – 7.

On August 8, 2018, an independent therapist not associated with BOP, Susan Andrews, evaluated Rodriguez. She noted that he can improve his mobility if "he is provided the opportunity for hands on and skilled rehab services (vs. independent exercise and rehab activities without the assistance or input of trained, skilled therapist)." Rizk Decl., Ex. N. Ms. Andrews further noted that "hands-on rehab cannot be done in the FCI Allenwood setting," and "as such, incarceration in a setting where these services are readily available might offer him the access to these services and ultimately increased mobility." Id.2 On August 22, 2018, BOP acknowledged the recommendation to have him moved to a facility with physical therapy services. Mot. 7; Rizk Decl., Ex. O (BOP Health Services administrative note stating that BOP "[w]ill inquire about this as a possibility").

Two months later, on October 24, 2018, Rodriguez was examined by an independent doctor of osteopathy, Dr. Melissa Michaluk, who recommended that Rodriguez have "ample access to therapeutic equipment, a standing frame, wheelchair vendors, and a gym." Rizk Decl., Ex. P. Dr. Michaluk concluded that if he "could have access to these services, his risk of worsening spasticity, nerve pain, and permanent loss of ability to stand would decrease significantly." Id. Citing this evaluation, BOP approved his transfer to a medical facility on November 16, 2018. Id. , Ex. Q. On December 6, 2018, Rodriguez was transferred to FMC Devens; the BOP transfer form indicates the reason for transfer as "Hospitalization and Treatment." Id. , Ex. R (BOP Transfer Form); id. , Ex. S (BOP Inmate Activity Form). BOP officials at FMC Devens determined that Rodriguez required a "care level" of 4, which means he "requires daily or nearly daily nursing interventions." Id. , Ex. T; see also id. , Ex. U (BOP Medical Classification Algorithm for Medical/Psychiatric Conditions or Disabilities).

C. SHU Confinement at FMC Devens and January 2019 Waiver Refusing Medical Treatment

Upon his arrival at FMC Devens, BOP placed Rodriguez in the SHU because FMC Devens was "dominated by MS-13 and the Sureños, meaning that Rodriguez was not safe in the general inmate population." Mot. 8; Rizk Decl., Ex. V ("Due to security reasons, Inmate Rodriguez has been housed in the SHU since his arrival."). Rodriguez argues that instead of finding a different medical facility, BOP put him in the SHU, where he was "confined for 23 hours a day," and only had "limited access to email, telephone calls, recreation time, and visitation." Mot. 8.

Rodriguez "begged to be moved out of the SHU," requesting BOP staff to lower his care level to 3 or 2 so that he could get out of the SHU. Mot. 8; Rizk...

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