United States District Court, D. Maryland
ELLEN L. HOLLANDER[/author]], District Judge.
Self-represented petitioner Michael Crooker, a federal prisoner currently incarcerated at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See ECF 1; ECF 1-1. He complains that "he is being denied medical treatment for end stage liver disease." ECF 1-1 at 1. Petitioner seeks an injunction mandating that he receive certain medications, Sofosbuvir and Ribavirin, ECF 1-1 at 4, to treat his illness, i.e., "Cirrhosis, " ECF 1-1 at 3, caused by hepatitis C. Id. at 4. Crooker asserts that he is in need of the above-mentioned medication because in August of 2013, he "became re-infected with the Hepatitis C Virus, Genotype 2b, " and these drugs "have a 97% cure rate....: ECF 1-1 at 4.
In response to the petition, respondent Timothy Stewart, the Warden, filed a "Motion To Dismiss And Response To Habeas Petition" (ECF 9), along with a memorandum (ECF 9-1) and several exhibits. ECF 9-2 to 9-5. Petitioner was notified of his opportunity to file an opposition and exhibits. ECF 10. And, he has done so. ECF 11, ECF 12. He has also filed exhibits. See ECF 11-1; ECF 12-1. Respondent replied, ECF 13, and submitted another exhibit. ECF 13-1.
Petitioner has also filed other submissions. See ECF 14, 16, 21. In addition, Crooker has requested discovery (ECF 17), which respondent opposes. ECF 18. Petitioner's motion for leave to file his reply memorandum regarding his discovery request (ECF 19) is granted.
The relevant issues have been briefed. No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, petitioner's request for discovery shall be denied, respondent's dispositive motion shall be granted, and the petition will be dismissed. A certificate of appealability will not issue.
I. Factual Background
Petitioner, a federal inmate currently confined at FCI-Cumberland, asserts that he has end stage liver disease-cirrhosis-, initially caused by hepatitis C virus ("HCV") Genotype 1a. ECF 1-1 at 3-4. He also suffers from a serious complication, "esophageal varices." Id. at 3. In 2012-13, petitioner received medication therapy which he states cured his underlying HCV infection. In or about August 2013, he was re-infected with HCV Genotype 2b. Id.
On October 11, 2013, petitioner was examined at Beth-Israel Deaconess Medical Center/Liver Center in Boston. He alleges that it was recommended that he be treated with Sofosbuvir and Ribavirin as soon as Sofosbuvir was approved by the FDA. Petitioner was advised that he would need to take the medication for twelve weeks and claims he was told that there is a 97% cure rate of HCV Genotype 2b using this medication therapy. Id. at 4.
Petitioner was transferred to FCI-Cumberland in November 2013. Id. Sofosbuvir was approved by the FDA on December 6, 2013. Id. Crooker maintains that "panels of doctors in the community are recommending it be used on a priority basis with those patients like [him] who already have progressed to cirrhosis." Id. at 4. Nevertheless, FCI-Cumberland has refused to provide him with Sofosbuvir (brand name Sovaldi) or the other requested medication. Id. at 4.
Additional facts are included primarily in the Bivens Discussion.
II. Discussion 1. Habeas claim
Petitioner has brought suit pursuant to 28 U.S.C. §2241, seeking the medical treatment described above. ECF 1. An inmate may bring a petition for writ of habeas corpus under §2241 where he alleges he is "in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. §2241(a)(3). A § 2241 petition attacks the fact or length of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 488 (1973).
Respondent has moved to dismiss, claiming Crooker does not attack the fact or duration of his confinement. ECF 9 at 1. Rather, the Warden claims that Crooker challenges the conditions of his confinement, i.e., the alleged inadequacy of his medical care, which is not actionable under § 2241. Id.
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the adequacy of a complaint. To survive a Rule 12(b)(6) motion, a complaint must satisfy the pleading standard articulated in Fed.R.Civ.P. 8(a)(2), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 & n.3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted); see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
To defeat a motion under Rule 12(b)(6), a complaint "must plead facts sufficient to show that [the] claim has substantive plausibility." Johnson v. City of Shelby, Mis s., ____ U.S. ____, 135 S.Ct. 346, 347 (2014); see Iqbal, 556 U.S. at 684 ("Our decision in Twombly expounded the pleading standard for all civil actions'....") (citation omitted); Twombly, 550 U.S. at 570; see also Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012); Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). In reviewing a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint, '" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, ____ U.S. ____ , 132 S.Ct. 402 (2011). Dismissal "is inappropriate unless, accepting as true the well-pled facts in the complaint and viewing them in the light most favorable to the plaintiff, the plaintiff is unable to state a claim to relief....'" Brockington v. Boykins, 637 F.3d 503, 505-06 (4th Cir. 2011) (citation omitted).
Here, dismissal is warranted on the face of the Petition.
The circuits are split as to whether suits challenging conditions of confinement may be brought under §2241. Compare Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005) ("If a prisoner is not challenging the fact of his confinement, but instead the conditions under which he is being held, we have held that [he] must use a § 1983 or Bivens theory."), and Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000) ("[F]ederal claims challenging the conditions of his confinement generally do not arise under § 2241.") with Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (stating that "one in custody may challenge the conditions of his confinement in a petition for habeas corpus....").
However, the Fourth Circuit has said that where a petitioner does not assert entitlement to release, the claim is properly treated as a suit under 42 U.S.C. § 1983, or in the case of a federal inmate, a Bivens claim, under Bivens v. Six Unknown Named Agents of Fed Bureau of Narcotics, 403 U.S. 388 (1971), which is the federal equivalent of § 1983. In the recent case of Braddy v. Wilson, 580 Fed.Appx. 172 (4th Cir. 2014), for example, the Fourth Circuit dismissed a habeas petition alleging a condition of confinement claim as improperly brought under § 2241. See also Lee v. Winston, 717 F.2d 888, 891-92 (4th Cir. 1983) (suit seeking to enjoin state officials from forcing defendant to undergo medical procedure was properly brought under civil rights statutes and not cognizable as a habeas petition); Strader v. Troy, 571 F.2d 1263, 1269 (4th Cir. 1978) (holding petitioner's claim which did not relate to release from parole must be treated as suit under § 1983 not as a petition for habeas relief).
District courts throughout The Fourth Circuit have been unwilling to permit conditions claims to proceed under § 2241. See, e.g., Hawkins v. Perdue, 2014 WL 1962216 at *2 (N.D. W.Va. May 15, 2014) (holding challenges to the conditions of confinement are not cognizable under § 2241, but instead must be pursued through a Bivens action and finding district courts within the Fourth Circuit have demonstrated "a consistent reluctance to permit prisoners challenging the conditions of their confinement to proceed under § 2241"); Lawrence v. Drew, 2010 WL 8731904 at *2 (D.S.C. Nov. 23, 2010) (holding that petitioner challenging a condition of confinement, rather than the execution of his sentence, failed to state a cognizable claim under § 2241); Olajide v. B.I.C.E., 402 F.Supp.2d 688, 695 (E.D. Va. 2005) (claim regarding denial of medical care not cognizable in habeas proceeding); Mendez v. Beeler, 2005 WL 4753402 *1 (E.D. N.C. May 10, 2005) (challenge to condition of confinement appropriately brought as a Bivens action, rather than as an action seeking relief under § 2241); McCain v. Garrity, 2002 WL 32362032 *2 (E.D. Va. July 16, 2002) (case regarding the "quality of medical care while incarcerated challenges a prisoner's conditions of confinement and therefore properly lies in a § 1983 civil rights action or a Bivens action"); Johnson v. Solomon, 484 F.Supp. 278, 282 n.2 (D. Md. 1979) (challenges to "conditions of  confinement" would "only be cognizable under 42 U.S.C. § 1983").
Here, petitioner does not allege that he is entitled to release. Rather, he asserts an Eighth Amendment claim regarding the denial of adequate medical care. Petitioner's reliance on Aamer v. Obama, 742 F.3d 1023 (C.A.D.C. 2014), to support his contention that a habeas petition is the proper vehicle to bring his claim regarding inadequate medical care is misplaced.
The Aamer Court, in finding that petitioners could challenge the conditions of their confinement (forced feedings) via a petition under § 2241, dealt with the unique statutory basis, custody, and jurisdictional status of the detainees held at Guantanamo Bay and applied D.C. Court of Appeals precedent regarding the scope of the writ. Id. at 1032. Aamer is not controlling law in this Circuit. This court must follow the Supreme Court and Fourth Circuit authority, which holds that a prisoner may not challenge conditions of confinement ...