Wragg v. Ortiz

Decision Date27 May 2020
Docket NumberCIVIL NO. 20-5496 (RMB)
Citation462 F.Supp.3d 476
Parties Troy WRAGG, et al., Petitioners, v. David E. ORTIZ, et al., Respondents.
CourtU.S. District Court — District of New Jersey

Jeanne Locicero, Esquire, Tess Meiling Borden, Esquire, American Civil Liberties Union, Of New Jersey Foundation, 89 Market Street, 7th Floor, P.O. Box 32159, Newark, New Jersey 08102, Attorneys for Petitioners.

John Francis Basiak, Jr., AUSA, Mark E. Coyne, AUSA, Elizabeth A. Pascal, AUSA, J. Andrew Ruymann, AUSA, John T. Stinson, AUSA, United States Department of Justice, Office of the U.S. Attorney, 401 Market Street, P.O. Box 2098, Camden, New Jersey 08101, Attorneys for Respondents.


Bumb, United States District Judge:


In January 2020, the Centers for Disease Control and Prevention began issuing Guidelines to the American public to protect against the coronavirus disease 2019 (COVID-19), a vicious and insidious disease that had suddenly attacked the country. One of the later Guidelines recommended that people stay at least six feet apart (about two arms’ length) from other people and stay out of crowded places and avoid mass gatherings. Ubiquitous reminders to "social distance" or "physical distance" are now part of everyday life. But what if such distancing is not possible – such as in a prison setting? Should inmates (no matter the length of their sentences) be released to a setting where they can physically distance? Particularly the aged and medically vulnerable inmates? Petitioners, inmates at the Federal Correctional Institution at Fort Dix, New Jersey, say yes. They contend that they, as well as several hundreds of other vulnerable inmates, are being held in violation of the Eighth Amendment because "there is no set of protective measures that [prison officials] can feasibly implement to contain the spread of COVID-19 in Fort Dix." (Dkt. No. 30, at 38.) The only adequate remedy, they insist, is a "temporary enlargement of custody" – a term they purposefully use. In reality, Petitioners seek the immediate large-scale release of hundreds of inmates to various places outside the prison's walls: "a hospital, halfway house, a person's home, or other setting" which would be determined on an inmate-specific basis "so they can begin to practice distancing and protect themselves against [COVID-19]." (Dkt. No. 9-1, at 14, 15.) Petitioners have filed a "Complaint-Class Action for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus."

Respondents, the Warden of FCI Fort Dix and the Director of the Bureau of Prisons, respond that the Federal Bureau of Prisons has made "extraordinary efforts" to safeguard its inmates. And while even their best efforts have not spared all inmates from contracting COVID-19, their efforts have been particularly successful at FCI Fort Dix. To date, only one inmate has been hospitalized due to COVID-19.1 All have recovered. This demonstrates that there are clearly measures in place at FCI Fort Dix that can mitigate effectively the spread of COVID-19. But more to the point, Respondents contend that Petitioners’ claims are the clever product of linguistic legerdemain in an effort to invoke this Court's habeas corpus jurisdiction. Petitioners’ challenges to the conditions of their confinement at FCI Fort Dix are merely dressed up as challenges to the "fact" of their confinement to avoid dismissal of their lawsuit on jurisdictional grounds. Simply put, but for the conditions related to the COVID-19 pandemic, Petitioners’ claims would not exist. Thus, because these kinds of conditions-of-confinement challenges are not cognizable in a petition for writs of habeas corpus, Respondents have moved to dismiss the Petition. Respondents have also moved to dismiss Petitioners’ claims under the Rehabilitation Act for failure to state a claim because there is no allegation that the prison officials denied them any benefit solely by reason of their alleged disabilities. In the alternative, Respondents contend that Petitioners cannot satisfy the requirements for either class certification under Federal Rule of Civil Procedure 23(a) or a preliminary injunction.

For the reasons set forth below, the Court grants Respondents’ motion in its entirety and denies Petitionersmotion for preliminary injunctive relief and dismisses the Complaint.


A. Background: Security at Fort Dix and Inmate Placement

The Federal Correctional Institution at Fort Dix ("FCI Fort Dix") is the largest federal prison in the United States in terms of capacity, capable of housing up to 5,000 inmates, but currently housing approximately 2,900 inmates. (Declaration of James Reiser ("Reiser Decl.") ¶3, Dkt. No. 28-2.) It is a "low security" facility "with an adjacent minimum security satellite camp." See FCI Fort Dix, Bureau of Prisons website.2 The satellite camp ("the Camp") is completely separate from the low compounds.

(Id. )The Camp has a relatively low staff-to-inmate ratio and dormitory-style housing. (Id. ¶6.) The Camp currently has approximately 124 inmates, all of whom tested negative for COVID-19. (Id.; Declaration of Nicoletta Turner-Foster, M.D. ("Turner-Foster Decl. I") ¶28, Dkt. No. 28-6.)

The majority of FCI Fort Dix's inmates reside in its low-security facility (referred to as the "Low"). (Reiser Decl. ¶5.) The Low is divided into two compounds ("East" and "West"), which are divided into 370-person-capacity "units." (Id. ¶¶3, 4.) The East and West compounds are separated by fencing and roadways and have military-style dormitories, which were converted into a prison in the early 1990s. (Id. ) The housing units have three floors, consisting of 12-man rooms and a small number of 2-man rooms, with communal showers and television rooms. (Id. ¶4.) The determination of whether to place an inmate in the Camp or in the Low is based on a number of individualized assessments of an inmate, one of which is called a "security designation and custody classification." BOP Program Statement No. P5100.08, Inmate Security Designation & Custody Classification, at 1.3

Petitioners Troy Wagg and Leonard Bogdan are currently housed in the west compound of the Low. (Compl. ¶¶7, 9.) Petitioners Michael Scronic and Eliezer Soto-Concepcion are currently housed at the Camp. (Id. at ¶¶ 8, 10.) All Petitioners allege that they have medical conditions that make them medically vulnerable to COVID-19. Those conditions are described below.

B. BOP's Action Plan to Combat the Spread of COVID-19

Since January 2020, BOP has been coordinating with subject-matter experts, including the World Health Organization and the Centers for Disease Control ("CDC"), on a COVID-19 action plan.4 As a result, BOP implemented a multi-phased operational plan called the "Action Plan," which seeks to "mitigate the spread of COVID-19" among inmates and staff, continue effective operations of the federal prison system, and ensure that staff remain healthy and available for duty. Id. To be clear, there is little dispute between the parties that these measures proscribed by the CDC and other agencies, as described herein, are being taken. The heart of the dispute is Respondents’ belief that no measures, absent their release to afford social distancing, would address their concerns. Indeed, as set forth below, Respondents even disagree with the CDC's interim guidance regarding correctional institutions.

As of May 18, 2020, the time of the filing of the Motion to Dismiss, BOP was in "Phase 6" of its Action Plan, an extension of the measures taken in Phase 5 as of April 1, 2020. (Turner-Foster Decl. I ¶14, Dkt. No. 28-6.) All inmates in every BOP institution must be secured in their assigned cells/quarters for a period of at least 14 days, to stop the spread of COVID-19. (Turner-Foster Decl. I ¶12(a), Dkt. No. 28-6.) Group gathering is limited, with attention to social distancing to the extent possible, for commissary, laundry, showers, telephone, and Trust Fund Limited Computer System (TRULINCS) access. (Id. ¶12(e)). Staff and inmates are issued appropriate face coverings and strongly encouraged to wear the face coverings in public areas when social distancing cannot be achieved. (Id. ¶12(h)).

When inmates are newly admitted to FCI Fort Dix, they are screened for COVID-19 exposure risk factors and symptoms. (Id. ¶¶6, 20.) "Asymptomatic inmates with risk of exposure are placed in quarantine." (Id. ) "Symptomatic inmates are placed in isolation until they test negative for COVID-19 or are cleared by medical staff as meeting CDC criteria for release from isolation." (Id. ) In addition, all staff were subjected to enhanced health screening in areas of "sustained community transmission," as determined by the CDC, and at medical referral centers. (Id. ¶7.) "Staff registering a temperature of 100.4 degrees Fahrenheit or higher are barred from the facility on that basis alone." (Id. )

Contractor access to FCI Fort Dix is restricted to those performing essential services (e.g., medical or mental health care, religious, etc.) or those who perform necessary maintenance on essential systems. (Id. ¶12(i)). Contractors who require access are screened for symptoms and risk factors. (Id. ¶12(i)). Social visits were stopped as of March 13, 2020. (Id. ¶12(j)). Legal visits are permitted on a case-by-case basis; lawyers are subject to health screening before admission. (Id. )

As of the writing of this Court's Opinion, BOP is now in Phase 7 of the Action Plan. This phase extends all measures from Phase 6 (as described above) through June 30, 2020, at which time the plan will be evaluated. (Declaration of Nicoletta Turner-Foster, M.D. ("Turner-Foster Decl. II"), Ex. 1, Dkt. No. 34 at 13-15.) Phase 7 includes an extension of plans to significantly decrease movement between BOP facilities nationwide. (Turner-Foster Decl. II ¶3, Dkt. No. 33-1.) BOP stated that it is unable to offer staff testing at institutions at present, but BOP...

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