Dov v. Warden

Background

Shayeh Dov, proceeding without a lawyer, was incarcerated at Otisville Federal Correctional Institution while serving an 87-month sentence imposed after his guilty plea to conspiracy to commit wire fraud. He filed a third petition under 28 U.S.C. § 2241, a procedure that federal prisoners may use to challenge certain aspects of their custody. Dov asked the court to order his transfer to home confinement under the Coronavirus Aid, Relief, and Economic Security Act.

Dov relied on his type II diabetes, kidney disease, an atrophic left kidney, and other medical findings. He submitted medical records from 2021 and 2022. Those records showed that the Bureau of Prisons arranged outside consultations and continued monitoring his conditions. They also showed that Dov refused several recommended outside appointments, although he later sought to reschedule some of them.

Dov had previously filed two similar petitions seeking transfer, medical treatment, or home confinement. The court had denied both earlier petitions, finding, among other things, that the Bureau of Prisons has sole discretion to designate his place of confinement, that this court was not the proper forum for a home-confinement recommendation, and that Dov had not exhausted required administrative remedies. The sentencing court had also denied Dov’s request for home confinement or compassionate release.

Arguments

The Warden argued that the third petition was barred by the habeas doctrine known as abuse of the writ. That doctrine allows a court to decline to consider a later habeas petition that repeats an earlier claim or raises a claim that could have been presented earlier. The Warden also argued that the petition failed on the merits because home-confinement decisions under the CARES Act belong to the Bureau of Prisons and because Dov had not shown inadequate medical care.

Dov argued that he had only recently become eligible for home confinement under the CARES Act’s discretionary criteria. He also asserted that the Bureau of Prisons had processed him for a transfer but never transferred him.

Court’s Analysis

The court held that the third petition repeated the same legal issue resolved in Dov’s first two petitions: whether the court could order the Bureau of Prisons to place him in home confinement. The court found that Dov had not identified a relevant change in circumstances or an intervening change in law that justified reconsidering the issue. It therefore found that the third petition constituted an abuse of the writ and denied it on that ground.

The court separately addressed the merits for completeness. It held that the Bureau of Prisons has sole discretion to designate Dov’s place of confinement, including whether to transfer him to home confinement under the CARES Act. The court stated that it lacked authority to order that transfer and that Dov’s reliance on the CARES Act did not change the result. The request for a home-confinement recommendation was also denied in this case.

The court further held that Dov had not shown that he exhausted the Bureau of Prisons’ four-step administrative complaint process or established grounds to excuse exhaustion. Even assuming exhaustion could be excused, the court ruled that Dov had not shown deliberate indifference to serious medical needs, which is the constitutional standard for an Eighth Amendment medical-care claim. The records showed ongoing medical monitoring and treatment, including attempts to arrange outside consultations. The court concluded that any disagreement about the appropriate treatment did not establish deliberate indifference.

Disposition

The Third Petition was DENIED. The court also declined to grant leave to amend because amendment would be futile, directed the Clerk to close the case, and directed that a copy of the Opinion and Order be mailed to Dov.