Horner v. Warden, Belmont Corr. Inst.

KENNETH HORNER, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:20-CV-6118

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

March 11, 2021

JUDGE EDMUND A. SARGUS, JR.

Chief Magistrate Judge Elizabeth P. Deavers

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This matter is before the Court on the Petition, Respondent's Motion to Dismiss, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that the Motion to Dismiss (ECF No. 10) be DENIED and that this action be DISMISSED.

I. BACKGROUND

Petitioner challenges his continued incarceration as barred by the Eighth Amendment based on the impact of COVID-19. He complains that he is confined, eats, and sleeps within three feet of other prisoners and is at high risk for complications due to COPD, Hepatitis-C, and the denial of the use of an inhaler and stomach medications by prison staff due to COVID-19 cutbacks. Petitioner states that inmates and staff do not wear masks. Petitioner has pursued relief in the state courts through the filing of a petition for post-conviction relief, a motion for judicial release, and a state habeas corpus petition in the Ohio Supreme Court. (ECF No. 9, PAGEID # 115, 132, 141.) He has filed an appeal of the trial court's November 17, 2020, denial of his petition for post-conviction relief. (ECF No. 126.) His state habeas corpus petition also apparently remains pending in the Ohio Supreme Court. Petitioner seeks immediate release and a preliminary injunction. Respondent has filed a Motion to Dismiss the action for failure to present a cognizable claim for habeas corpus relief. (ECF No. 204.)

II. Propriety of Habeas Corpus Relief

Respondent maintains that Petitioner's claim cannot be considered in habeas corpus proceedings because it involves a "conditions of confinement" claim that would properly be pursued in an action under 42 U.S.C. § 1983. This Court has rejected this argument. (Order, ECF No. 6, PAGEID # 98-100.)

The United States Court of Appeals for the Sixth Circuit has held that, where the petitioner requests immediate release from confinement, this claim may properly be addressed in a petition for a writ of habeas corpus under the provision of 28 U.S.C. § 2241. See Walker v. Warden, No. 1:20-cv-302, 2020 WL 6392463, at *1-2 (S.D. Ohio Nov. 2, 2020) (citing Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020)). "[W]here a petitioner claims that no set of conditions would be constitutionally sufficient the claim should be construed as challenging the fact or extent, rather than the conditions, of the confinement." Wilson v. Williams, 961 F.3d at 838 (citing Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); cf. Terrell v. United States, 564 F.3d 442, 446-48 (6th Cir. 2009)). "[R]elease from confinement. . . is 'the heart of habeas corpus.'" Id. (citing Preiser v. Rodriguez, 411 U.S. 475, 498 (1973)). See also Aultman v. Shoop, No. 2:20-cv-3304, 2020 WL 4287535, at *1 (S.D. Ohio July 27, 2020) (Plaintiff's request for immediate release from custody fails to state a claim under 42 U.S.C. § 1983 and must be brought under the provision of 28 U.S.C. § 2241) (citing Wilson, 961 F.3d at 838); Gerald v. Warden, Lebanon Corr. Inst., No. 1:20-cv-603, 2020 WL 8370958, at * 2 (S.D. Ohio Aug. 27, 2020) (concluding that state prisoners' COVID-19 claims may properly be brought under the provision of 28 U.S.C. § 2241) (citing Van Diver v. Nagy, No. 20-11340, 2020 WL 4696598, at*2 (E.D. Mich. Aug. 13, 2020) (other citations omitted), as have other federal district courts in the Sixth Circuit, see Blackburn v. Noble, 479 F.Supp.3d 531, -- (E.D. Ky. 2020) (the provision of 28 U.S.C. § 2241 provides avenue of relief for state prisoners seeking immediate release based on COVID-19) (citing Wilson, 961 F.3d at 838; Malam v. Adducci, 452 F.Supp.3d 643, 649 (E.D. Mich. 2020)); but see Jaeger v. Wainwright, No. 1:19-cv-2853, 2020 WL 3961962, at *3 (N.D. Ohio July 7, 13, 2020) (and cases cited therein) (holding that a habeas action by state prisoners bringing COVID-19 claim must be brought under the provision of 28 U.S.C. § 2254) (citations omitted).

Bradley, referred to by the Respondent, does not hold to the contrary. The Sixth Circuit in Bradley the petitioner's request for a certificate of appealability from the dismissal of a habeas corpus petition filed under the provision of 28 U.S.C. § 2254 raising a COVID-19 claim, declining to construe the action under 28 U.S.C. § 2241:

True, the Sixth Circuit recently permitted federal inmates to bring a claim similar to Bradley's under 28 U.S.C. § 2241. See Wilson v. Williams, 961 F.3d 829, 838-39 (6th Cir. 2020). But Bradley petitioned under 28 U.S.C. § 2254, not 28 U.S.C. § 2241, and "our interpretation of § 2241 does not control our interpretation of § 2254." Bailey v. Wainwright, 951 F.3d 343, 347 (6th Cir. 2020). Nor does anything require "courts to convert § 2254 petitions to petitions under § 2241[.]" Allen v. White, 185 F. App'x 487, 489 (6th Cir. 2006).

Bradley, 2021 WL 688859, at *2. Thus, Bradley, an unreported decision, does not stand for the proposition that Petitioner's claim cannot be brought in habeas corpus proceedings.

III. Exhaustion

Respondent indicates that Ohio has no adequate remedy for a state prisoner seeking immediate release under the Eighth Amendment based on COVID-19. (Motion to Dismiss, ECF No. 10, PAGEID # 240, 247.)

Smith v. DeWine, 476 F.Supp.3d 635, 655 (S.D. Ohio Aug. 3, 2020), outlines the procedure for exhausting administrative remedies on a COVID-19 claim through the prison grievance procedure in an action filed under 42 U.S.C. § 1983:

Ohio has established a procedure for resolving inmate complaints. Ohio Admin. Code § 5120-9-31. To properly exhaust a claim seeking relief "regarding any aspect of institutional life that directly and personally affects the [inmate]," an inmate at an ODRC facility must comply with its three-step grievance system. Id. For the first step, the inmate must submit an informal complaint to the staff member or to the direct supervisor of the staff member or to the department most directly responsible over the subject matter with which the inmate is concerned. Id. § 5120-9-31(K)(1). If the inmate is not satisfied with the results at the first step, he may take the second step by filing a formal grievance with the inspector of institutional services at the prison where he is confined. Id. § 5120-9-31(K)(2). That inspector will investigate the matter and issue a written response to the inmate's grievance within fourteen calendar days of receipt. Id. If the inmate is still dissatisfied, he may pursue the third step, which is an appeal to the office of the Chief Inspector of [the] ODRC. Id. § 5120-9-31(K)(3). An inmate does not exhaust his remedies under § 5120-9-31 until he has received a decision in an appeal to the office of the Chief Inspector. Younker v. Ohio State Univ. Med. Ctr., No. 2:11-cv-00749, 2013 WL 3222902, at *3, 2013 U.S. Dist. LEXIS 88963, at *4 (S.D. Ohio June 25, 2013).

Id. at 655.

Federal courts have been divided on whether the exhaustion requirement should apply to COVID-19 Eighth Amendment prison claims in view of the potential danger of the virus and the time sensitive nature of the claim:

In light of the COVID-19 pandemic, federal courts are split on the issue of whether administrative remedies are currently available to prisoners. Some courts have considered the irreparable harm and time-sensitive nature prisoners face in light of the virus and find grievance procedures unavailable and thus, exhaustion not required. See e.g., Sowell v. TDCJ, No. H-20-1492, 2020 WL 2113603, at *3, 2020 U.S. Dist. LEXIS 77809, at *7 (S.D. Tex. May 4, 2020) ("Where the circumstances present an imminent danger to an inmate, TDCJ's time-consuming administrative procedure, which TDCJ may choose to extend at will, presents no 'possibility of some relief.' " (citing Ross, 136 S. Ct. at 1859)); United States v. Vence-Small, No. 3:18-cr-00031, — F.Supp.3d —, —, 2020 WL 1921590, at *5, 2020 U.S. Dist. LEXIS 69354, at *12-13 (D. Conn. Apr. 20, 2020) ("In light of these emergency circumstances, some judges have [waived exhaustion requirements,]") (citing United States v. Russo, 454 F.Supp.3d 270, 272-74 (S.D.N.Y. 2020) andUnited States v. Haney, 454 F.Supp.3d 316,2020 WL 1821988, at *1-2 (S.D.N.Y. 2020)).

Id. at 656.

Regardless, a federal court may dismiss an unexhausted claim on the merits. 28 U.S.C. § 2254(b)(2); see Cameron, 815 F. App'x at 983 n.1 (declining to address non-jurisdictional procedural issues where claim fails on the merits).

[T]he failure to exhaust does not divest this Court of jurisdiction over their petition. Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). A federal habeas court may consider unexhausted claims where "'unusual' or 'exceptional' circumstances" exist. Id. (quoting O'Guinn v. Dutton, 88 F.3d 1409, 1412 (6th Cir. 1996) (citing Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987))). As other Courts have observed, the current pandemic is an unusual or exceptional circumstance that could allow a federal court to consider the matter at hand. Cameron v. Bouchard, — F.Supp.3d —, —, 2020 WL 2569868, at * 15 (E.D. Mich. May 21, 2020).

Blackburn v. Noble, -- F.Supp.3d --, --, 2020 WL 4758358, at **5 (E.D. Ky. Aug. 17, 2020).

For the reasons that follow, Petitioner's claim does not provide him relief. Exhaustion therefore does not preclude consideration of the issue.

IV. Merits

The Eighth Amendment requires prison officials to guarantee the safety of and provide adequate medical care to prison inmates. Blackburn v. Noble, 479 F.Supp.3d 511, 539 (E.D. Ky. Aug. 17, 2020) (citing Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). "[W]hen the State takes a person into its custody and holds...