Pennsylvania Cases April 27, 2021: Counterman v. Finley

Case Description

Rambo, Judge.

REPORT AND RECOMMENDATION

Martin C. Carlson, United States Magistrate Judge.

I. Introduction

This federal habeas corpus petition poses the following question: Can a federal inmate who has recovered from an asymptomatic case of COVID and who refuses to be vaccinated secure his release from custody by arguing that the prison COVID protocols are inadequate? The petitioner, James Counterman, says yes. We say no.

This case presents a federal habeas corpus petition (Doc. 1), filed by James Counterman, a federal inmate housed at the Federal Correctional Institution (FCI) at Schuylkill. Counterman's petition raises issues regarding prison conditions during a pandemic, and invites us to consider the challenges of corrections during the coronavirus. According to the petitioner, federal authorities at FCI Schuylkill are responding to the current COVID pandemic in an inadequate fashion, and in a manner that violates the petitioner's statutory and constitutional rights. Based upon these conditions of confinement claims, Counterman seeks either release from federal custody or some form of “order of enlargement, ” which would “enlarge” the petitioner's custodial status by releasing him from jail and placing him in home confinement. ( Id .)

At the outset, we note a curious aspect to this petition. As they were initially framed, these claims were set forth in a global 154-page pleading filed by Counterman and a number of other inmates. This pleading purported to bring individual federal habeas corpus claims on behalf of Counterman and several other prisoners, as well as endeavoring to assert putative class action claims on behalf of a large class of federal inmates. ( Id .) However, to the extent that Counterman, or any other federal inmate, is attempting to bring a putative pro se class action on behalf of their fellow prisoners, it is clear that they cannot do so.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, there are four prerequisites which must be met before this case could be certified as a class action. To obtain class certification, it must be shown that:

1) the class is so numerous that joinder of all members is impracticable;

2) there are questions of law or fact common to the class;

3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). These requirements are set forth in Rule 23 in the conjunctive. Therefore, a district court can only certify a class if all four requirements of Rule 23(a) are met. See In re Hydrogen Peroxide Antitrust Litig. , 552 F.3d 305, 309 n.6 (3d Cir. 2008); In re Prudential Ins. Co. of America Sales Practice Litigation , 148 F.3d 283, 308-09 (3d Cir. 1998). Since all four of these elements must be met before a class action may be certified, the failure to satisfy any single element is fatal to any proposed class certification.

In this case, turning first to Rule 23's requirement that “the representative parties will fairly and adequately protect the interests of the class, ” we find that Counterman cannot serve as a fair and adequate class representative since it is well settled that:

[A] prisoner proceeding pro se may not seek relief on behalf of his fellow inmates. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“[I]t is plain error to permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action.”); see also Wallace v. Smith, 145 Fed.Appx. 300, 302 (11th Cir. 2005).

Alexander v. New Jersey State Parole Bd. , 160 Fed.Appx. 249, 250 (3d Cir. 2005). Thus, “ pro se litigants are generally not appropriate as class representatives.” Hagan v. Rogers , 570 F.3d 146, 159 (3d Cir. 2009) (quoting Oxendine v. Williams , 509 F.2d 1405, 1407 (4 Cir. 1975)). Since Counterman, a pro se inmate litigant, cannot serve as a class representative, this class certification proposal does not meet the mandatory threshold consideration that the representative party will fairly and adequately protect the interests of the class, and this pro se request for class certification should be denied.

As for Counterman's individual federal habeas corpus claims, while Counterman seeks his release from custody or transfer to home detention, it appears uncontradicted that he has not fully exhausted his administrative avenues for relief within the Bureau of Prisons with respect to any of these claims prior to filing this petition for writ of habeas corpus. Thus, Counterman comes before us as a habeas corpus petitioner who has not exhausted his administrative remedies. Furthermore, the record before us indicates that Counterman's concerns are currently hypothetical since he had been diagnosed with asymptomatic COVID in December of 2020, but now appears to be fully recovered. In addition, Counterman has refused treatment for COVID-19 and has expressly refused to receive a vaccination. Accordingly, Counterman has refused to take the simple treatment offered by prison officials which would ensure his health and safety, vaccination, yet insists based upon health and safety concerns that he should be released from custody.

This matter has been fully briefed by the parties. (Docs. 1, 22, 25 and 27). Accordingly, this case is now ripe for resolution. Having reviewed this petition, and the government's response, for the reasons set forth below, it is recommended that this petition be denied.

II. Statement of Facts and of the Case

The undisputed facts in this case can be simply stated: The petitioner, James Counterman, is currently housed in the minimum security satellite camp at FCI Schuylkill where he is serving a 144-month sentence following his conviction for drug trafficking and money laundering. (Doc. 27, Ex. 1, Declaration of Jonathan Kerr, Attachment A). Counterman alleges that he suffers from obesity, hypertension, Hepatitis B and C, and COVID-19, and that all of this puts him at increased risk of medical complications due to COVID-19. (Doc. 1 at 2). However, two uncontested facts significantly undermine Counterman's COVID-related claims and concerns. First, it is undisputed that Counterman has already contracted COVID and recovered from this ailment. Specifically, Counterman tested positive for COVID-19 on December 22, 2020, but recovered without any medical complications. Second, it is also uncontested that Counterman has in fact refused care and treatment offered by correctional staff, care which would likely prevent and recurrence of this disease. Specifically, Counterman refused a COVID-19 vaccine that was offered to him on February 9, 2021. ( Id ., Ex. 1, ¶ 12; Att. 4 (COVID-19 Vaccine Consent - Inmate).

Counterman's recovery from COVID and refusal to cooperate with COVID vaccination protocols illustrate some of the challenges faced by the Bureau of Prisons in responding to this global pandemic. Like all correctional facilities throughout the United States, FCI Schuylkill has faced the challenge of ensuring safe confinement of inmates during the current COVID-19 pandemic. In response to these challenges, staff at FCI Schuylkill have taken a number of proactive steps to address inmate and staff health, safety and security concerns. There are several components to these efforts.

First, the COVID response at FCI Schuylkill entails testing of inmates and staff. In order to protect both its staff and inmates against the spread of COVID-19, FCI Schuylkill maintains a supply of COVID-19 tests, and both staff and inmates are tested for COVID-19 regularly. Furthermore, staff and inmates are regularly screened for a temperature exceeding 100.4 degrees or overt respiratory symptoms. Symptomatic inmates or inmates who have a temperature get isolated immediately and tested for COVID-19 using a Abbott ID NOW test. An inmate with a negative Abbot ID test then receives a PCR nasal swab test to confirm that he is COVID-free and must remain in isolation until the results of the same are received. All inmates who enter, or are discharged or transferred from the institution, are likewise tested for COVID-19. Moreover, when an inmate spends an extended period of time in a crowded setting, such as an emergency department, waiting area, overnight hospitalization, in court, a furlough or work release, that inmate is tested upon return to the institution. Prisoners are also tested for COVID both before they are placed in any form of quarantine and prior to being discharged from quarantine.

Beyond this COVID testing program, the prison maintains a series of protocols aimed at curbing the spread of the disease. While inmates are still provided access to commissary, laundry, showers, telephones, and computers, FCI Schuylkill has limited group gatherings, promotes social distancing where possible, and restricts movement of inmates among BOP facilities. Staff and inmates are issued face-masks, which they must wear in public areas and in those instances in which social distancing is not feasible.

Prison officials are also using quarantine and isolation strategies to mitigate the spread of the virus. Prisoners who test positive for COVID-19 remain in isolation until they test negative or medical staff, pursuant to the CDC criteria for a release from isolation, clear the inmate from isolation. Additionally, all new BOP admissions to FCI Schuylkill are placed in a fourteen-day quarantine upon arrival at the institution regardless of their test result.

In addition, FCI Schuylkill performs contact tracing when staff or inmates have confirmed cases of COVID-19. Close contacts are identified, assessed for symptoms, and administered an Abbot ID NOW or PCR nasal swab test. Inmates who display symptoms are tested and isolated, and asymptomatic inmates are tested and placed in exposure quarantine.

While these measures have not prevented COVID infections within the prison, they have mitigated both the scope and the severity of the contagion. As of March 23, 2021, FCI Schuylkill had 7 cases of COVID-19 infection among inmates and 10 documented cases of COVID-19 infection among staff. Since the onset of the pandemic, there have been no deaths at FCI Schuylkill as a result of COVID-19, and all 580 inmates who tested positive have recovered from COVID-19.

The Bureau of Prisons has also been given greater discretion to consider the medical release of inmates during this pandemic as part of the recently enacted CARES Act. In this case, prison officials have exercised this discretion, albeit in a fashion that has left Counterman dissatisfied. Specifically, on January 5, 2021, prison staff considered Counterman for potential home confinement placement under the five factors prescribed by 18 U.S.C. §§ 3621(b) and 3624(c)(2), the CARES Act, and Attorney General Barr's directives. At that time, it was determined that Counterman was not an appropriate candidate for release to home confinement.

Dissatisfied with the outcome of this review, Counterman filed the instant federal habeas corpus petition. However, it is undisputed that prior to proceeding to federal court, Counterman did not fully exhaust his administrative remedies within the prison system. Indeed, Counterman has admitted that he has not taken steps to fully exhaust these claims, stating that he failed to do so because he deemed exhaustion to be futile. (Doc. 25).

It is against the backdrop of these undisputed facts that we consider Counterman's petition for writ of habeas corpus.

III. Discussion

In our view, as discussed below with respect to this petitioner, the instant federal habeas corpus petition faces a series of insurmountable legal obstacles that combine to defeat this request for release from custody.

A. The Exhaustion Doctrine Bars Consideration of This Habeas Petition.

At the outset, this petition suffers from a fundamental procedural flaw, since the petitioner has failed to properly exhaust his administrative remedies within the federal prison system. Although 28 U.S.C. § 2241 contains no express exhaustion requirement, “[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241.” Gambino v. Morris , 134 F.3d 156, 171 (3d Cir. 1998); see also , e.g. , Callwood v. Enos , 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson , 682 F.2d 1050, 1052 (3d Cir. 1981). These exhaustion rules serve an important and salutary purpose. The Court of Appeals requires administrative exhaustion of a claim raised under § 2241 for three reasons: “(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy.” Moscato v. Federal Bureau of Prisons , 98 F.3d 757, 761-62 (3d Cir. 1996); see also Gambino , 134 F.3d at 171; Lyons v. U.S. Marshals , 840 F.2d 202, 205 (3d Cir. 1988). In order to facilitate this administrative exhaustion requirement, the Bureau of Prisons has established a clearly-defined procedure for addressing inmate grievances. See 28 C.F.R. § 542, et seq . Pursuant to this grievance process, an inmate must first attempt resolution of any issue on an informal level by presenting the matter to staff and allowing staff to attempt an informal resolution before an administrative remedy request is filed. See 28 C.F.R. § 542.13(a). If an inmate is unable to resolve his concerns informally with the staff, the prisoner may file a formal written complaint at the institution level with the Warden within 20 calendar days of the event that forms the basis of the grievance. § 542.14(a). If the Regional Director denies the appeal and the inmate remains dissatisfied, the inmate can lodge a final appeal to the BOP's Central Office in Washington, D.C. within 20 days of the denial. § 542.15(a). If denied by the Central Office, the inmate may then file a civil action. §§ 542.10, 542.15.

This case presents the very paradigm of an unexhausted petition since it is undisputed that Counterman did not fully exhaust these COVID-related release issues administratively with the Bureau of Prisons prior to filing this petition for writ of habeas corpus. This procedural default now has substantive consequences for the petitioner. With respect to unexhausted habeas claims like those presented here, “[c]ourts in the Middle District of Pennsylvania have consistently held that ‘exhaustion of administrative remedies is not rendered futile simply because a prisoner anticipates he will be unsuccessful in his administrative appeals ..... '” Ross v. Martinez, No. 09-1770, 2009 WL 4573686, at *3 (M.D. Pa. Dec. 1, 2009) (quoting Malvestuto v. Martinez , No. CIV.A. 1:09-CV-1339, 2009 WL 2876883, at *3 (M.D. Pa. Sept. 1, 2009)). Quite the contrary, rigorously applying these exhaustion requirements, courts have consistently rejected habeas petitions where the inmate-petitioners have failed to fully exhaust their administrative remedies. See, e.g. , Johnson v. Williamson , 350 Fed.Appx. 786 (3d Cir. 2009); Pinet v. Holt , 316 Fed.Appx. 169 (3d Cir. 2009); Moscato , 98 F.3d 757.

As this court has previously explained when dismissing a federal prisoner's habeas petition for failure to exhaust administrative remedies:

In order for a federal prisoner to exhaust his administrative remedies, he must comply with 28 C.F.R.' 542. See 28 C.F.R.' 542.10, et seq. ; Lindsay v. Williamson , No. 1:CV-07-0808, 2007 WL 2155544, at *2 (M.D. Pa. July 26, 2007). An inmate first must informally present his complaint to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R.' 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. 28 C.F.R.' 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. 28 C.F.R. '' 542.15(a), 542.18. No. administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP's Central Office. See Sharpe v. Costello , No. 08-1811, 2008 WL 2736782, at *3 (3d Cir. July 15, 2008).

Miceli v. Martinez, No. 08-1380, 2008 WL 4279887, at *2 (M.D. Pa. Sept. 15, 2008).

This exhaustion rule in federal habeas corpus proceedings is also subject to a procedural default requirement. As the Third Circuit has explained:

[A] procedural default in the administrative process bars judicial review because ‘the reasons for requiring that prisoners challenging disciplinary actions exhaust their administrative remedies are analogous to the reasons for requiring that they exhaust their judicial remedies before challenging their convictions; thus, the effect of a failure to exhaust in either context should be similar.' Sanchez [v. Miller , 792 F.2d 694, 698 (7th Cir. 1986)]. We require exhaustion for three reasons: (1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy. Bradshaw [v. Carlson , 682 F.2d 1050, 1052 (3d Cir. 1981)]; see also Schlesinger v. Councilman, 420 U.S. 738, 756-57, 95 S.Ct. 1300, 1312, 43 L.Ed.2d 591 (1975) (exhaustion avoids duplicative proceedings and insures that judicial review will be informed and narrowed); McKart v. United States , 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969) (circumvention of administrative process diminishes effectiveness of an agency by encouraging prisoners to ignore its procedures). Requiring petitioners to satisfy the procedural requirements of the administrative remedy process promotes each of these goals.

Moscato , 98 F.3d at 761-62. For these reasons, it is now well-settled that: “a federal prisoner who challenges a [prison decision] within a federal institution, fails to exhaust his administrative remedies because of a procedural default, and subsequently finds closed all additional avenues of administrative remedy, cannot secure judicial review of his habeas claim absent a showing of cause and prejudice.” Id.

These basic legal tenets apply here and are fatal to this habeas corpus petition, to the extent that it seeks judicial review of a prison placement decision made during this pandemic without full compliance by the petitioner with prison rules governing appeals of such requests. This court has specifically held that such COVID-related claims must be administratively exhausted before they are presented in federal court. See e.g ., Brennerman v. White , No. 3:20-CV-1069, 2020 WL 8617622, at *1 (M.D. Pa. Dec. 10, 2020), report and recommendation adopted in part, No. 3:20-CV-1069, 2021 WL 682070 (M.D. Pa. Feb. 22, 2021); Prelaj v. White , No. 3:20-CV-993, 2020 WL 7974008, at *1 (M.D. Pa. Dec. 10, 2020), report and recommendation adopted, No. 3:20-CV-993, 2021 WL 41755 (M.D. Pa. Jan. 5, 2021); Gottstein v. Finley , No. 3:20-CV-0935, 2020 WL 3078028, at *4 (M.D. Pa. June 10, 2020); Jackson v. White , No. 3:20-CV-0919, 2020 WL 3036075, at *6 (M.D. Pa. June 5, 2020); Cordaro v. Finley , No. 3:10-CR-75, 2020 WL 2084960, at *5 (M.D. Pa. Apr. 30, 2020). Therefore, with respect to any CARES Act or related constitutionally grounded custody complaints based upon the COVID pandemic, the petitioner is an inmate who has failed to fully exhaust his remedies and now fails to provide cause and prejudice to excuse this earlier procedural default. Moreover, as a matter of law, Counterman's subjective belief that exhaustion may be futile does not excuse him from fully exhausting these claims before proceeding to federal court. Accordingly, these unexhausted claims should be dismissed.

B. Counterman May Not Bring a Claim for Habeas Relief Under the CARES Act.

There is yet another fundamental flaw in this petition. Citing to the newly enacted provisions of the CARES Act, which conferred additional discretion upon the Bureau of Prisons to authorize the early release of some offenders during the current COVID-19 pandemic, the petitioner appears to invite us to order prison officials to exercise this discretion and direct his release to home confinement.

This we cannot do. On this score, Counterman's petition confuses and conflates the discretion conferred upon prison officials with the jurisdiction of this court. Simply put:

[T]he determination of which inmates qualify for home confinement under the CARES Act is with the BOP Director. See United States v. Doshi , 2020 WL 1527186, *1 (E.D. Mi. March 31, 2020) (The CARES Act “temporarily permits the Attorney General to ‘lengthen the maximum amount of time for which [it] is authorized to place a prisoner in home confinement' under § 3624(c)(2)”, and “the authority to make this determination is squarely allocated to the Attorney General, under whose authority is the Bureau of Prisons.”); United States v. Coker , 2020 WL 1877800, *1 (E.D. Tenn. April 15, 2020) (court stated that while section 12003 of the [CARES Act] “presently and temporarily provides for expanded prisoner home confinement”, “[t]he CARES Act places decision making authority solely within the discretion of the Attorney General and the Director of the Bureau of Prisons.”) (citations omitted). Thus, “[c]ourts ... do not have power to grant relief under Section 12003 of the CARES Act.” Id.

United States v. Cruz , 455 F.Supp.3d 154, 159 (M.D. Pa. 2020).

Accordingly, the rising tide of case law has consistently held that it is the responsibility of the Bureau of Prison, and not the courts, to make these COVID related release determinations. Therefore, petitioners may not seek judicial relief from this court under these provisions of the CARES Act. See e.g ., Robertson v. Warden , No. 1:20-CV-2117, 2021 WL 916253, at *7 (M.D. Pa. Mar. 10, 2021); Gonzalez v. Howard , No. 1:20-CV-1992, 2021 WL 65989, at *4 (M.D. Pa. Jan. 7, 2021)(Rambo, J.); United States v. Sawicz , 2020 WL 1815851, *1 (E.D.N.Y. April 10, 2020); United States v. Dosh i, 2020 WL 1527186, *1 (E.D. Mi. March 31, 2020) (The CARES Act “temporarily permits the Attorney General to ‘lengthen the maximum amount of time for which [it] is authorized to place a prisoner in home confinement' under § 3624(c)(2)”, and “the authority to make this determination is squarely allocated to the Attorney General, under whose authority is the Bureau of Prisons.”); United States v. Coker , 2020 WL 1877800, *1 (E.D. Tenn. April 15, 2020) (court stated that while section 12003 of the [CARES Act] “presently and temporarily provides for expanded prisoner home confinement”, “[t]he CARES Act places decision making authority solely within the discretion of the Attorney General and the Director of the Bureau of Prisons.”) (citations omitted); United States v. Berry , 2020 WL 1984117, *3 (M.D. Pa. April 27, 2020) (same); United States v. William s, 2020 WL 2748287, *1 (E.D. Tenn. May 27, 2020); United States v. Davis , No. 3:10-CR-187, 2020 WL 4530730, at *7 (M.D. Pa. Aug. 6, 2020); United States v. Frazier , No. CR 16-355, 2020 WL 6747979, at *3 (E.D. Pa. Nov. 17, 2020). Given this growing legal consensus, the petitioner cannot rely upon these legislative enactments to compel Counterman's release to home detention.

C. Counterman's Constitutional Claims Fail.

Finally, this petition raises Eighth Amendment constitutional concerns regarding the conditions of Counterman's confinement and the adequacy of his prison health care. However, even when cast in this light, the petition fails as a matter of law.

With respect to these constitutional habeas corpus claims based upon Counterman's conditions of confinement, recently the Court of Appeals has held that a habeas petitioner's “claim that unconstitutional conditions of confinement . . . require . . . release is cognizable in habeas.” Hope v. Warden York Cty. Prison , 972 F.3d 310, 325 (3d Cir. 2020). However, such claims, while legally cognizable, are judged against exacting standards. Thus, “a possible habeas attack on the conditions of confinement [is] cognizable in a federal habeas action only in extreme cases .” Id . at 324 (emphasis in original) (citations omitted).

In this case, Counterman's constitutional claims are premised upon alleged violations of the Eighth Amendment's prohibition against cruel and unusual punishment. Several overarching and animating constitutional considerations govern an analysis of any Eighth Amendment claim. As the Court of Appeals has observed:

The Eighth Amendment protects against infliction of “cruel and unusual punishment.” However, “not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.” Whitley v. Albers , 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). “After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Id. (citation and internal quotations omitted). “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Id.

Resolution of an Eighth Amendment claim therefore “mandate[s] an inquiry into a prison official's state of mind.” Wilson v. Seiter , 501 U.S. 294, 299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Two considerations define that inquiry. We must first determine if the deprivation was sufficiently serious to fall within the Eighth Amendment's zone of protections. Id. at 298, 111 S.Ct. 2321. If not, our inquiry is at an end. However, if the deprivation is sufficiently serious, we must determine if the officials acted with a sufficiently culpable state of mind. Id. In other words, we must determine if they were motivated by a desire to inflict unnecessary and wanton pain. “What is necessary to establish an ‘unnecessary and wanton infliction of pain ...' varies according to the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

Fuentes v. Wagner , 206 F.3d 335, 344-45 (3d Cir. 2000).

Thus, while prison officials may violate an inmate's rights under the Eighth Amendment to the United States Constitution by displaying “deliberate indifference” to an inmate's medical needs, to sustain such a claim an inmate must:

[M]eet two requirements: (1) “the deprivation alleged must be, objectively, sufficiently serious;” and (2) the “prison official must have a sufficiently culpable state of mind.” Farmer v. Brennan , 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions cases, “that state of mind is one of' deliberate indifference' to inmate health or safety.” Id . “Deliberate indifference” is a subjective standard under Farmer -the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.

Beers-Capitol v. Whetzel , 256 F.3d 120, 125 (3d Cir. 2001).

The same guiding principles apply to inmate complaints regarding their conditions of confinement. “When an Eighth Amendment claim arises in the context of a challenge to conditions of confinement, we must determine if prison officials acted with ‘deliberate indifference' to the inmate's health. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective inquiry is whether the inmate was ‘denied the minimal civilized measure of life's necessities.' Hudson , 503 U.S. at 9, 112 S.Ct. 995.” Fuentes , 206 F.3d at 345. In this setting, it is clear that:

The Eighth Amendment prohibits punishments inconsistent with “evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)). Conditions of prison confinement violate the Eighth Amendment only if they “deprive inmates of the minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)

Atkinson v. Taylor , 316 F.3d 257, 272 (3d Cir. 2003). Thus, these claims also require proof of a both culpable state of mind, and objective proof of physical conditions of confinement that shock the conscience and depart from the minimal civilized standards of life's necessities.

Judged by these standards, Counterman's Eighth Amendment claims fail since he has not alleged or shown any deliberate indifference to his health and safety by prison officials. Quite the contrary, the Respondents have shown without contradiction that prison officials have taken reasonable steps to address the COVID-19 pandemic within this institution. Moreover, it appears that Counterman's concerns are currently hypothetical since he has apparently fully recovered from an asymptomatic case of COVID. Further, it is noteworthy that Counterman has refused the care offered by his jailers and has specifically declined to be vaccinated, a simple measure that could largely ensure his well-being during the current pandemic. Given the measures undertaken by prison staff, and Counterman's refusal to cooperate in vaccination efforts, it cannot be said that the Respondents have been deliberately indifferent to Counterman's medical needs. Nor has Counterman shown that that he is being confined in a setting that deprives him of the minimal civilized measure of life's necessities. Simply put, Counterman cannot refuse medical care and then cite the lack of such care as an Eighth Amendment violation. In the absence of any proof of deliberate indifference to the petitioner's medical needs, these Eighth Amendment claims fail, and this petition for writ of habeas corpus should be denied.

We note that we are not alone in reaching this conclusion. Quite the contrary, given the conscientious efforts of prison officials to curb the spread of this pandemic, courts have consistently rejected inmate claims that the prison response to this pandemic constitutes deliberate indifference to prisoners' serious medical needs. Gonzalez v. Howard , No. 1:20-CV-1992, 2021 WL 65989, at *1 (M.D. Pa. Jan. 7, 2021) (Rambo, J.); Butcher v. Howard , No. 1:20-CV-01994, 2021 WL 37994, at *6 (M.D. Pa. Jan. 5, 2021); Brennerman v. White , No. 3:20-CV-1069, 2020 WL 8617622, at *1 (M.D. Pa. Dec. 10, 2020), report and recommendation adopted in part, No. 3:20-CV-1069, 2021 WL 682070 (M.D. Pa. Feb. 22, 2021); Prelaj v. White , No. 3:20-CV-993, 2020 WL 7974008, at *1 (M.D. Pa. Dec. 10, 2020), report and recommendation adopted, No. 3:20-CV-993, 2021 WL 41755 (M.D. Pa. Jan. 5, 2021); Rodriguez-Francisco v. White , No. 1:20-CV-1076, 2020 WL 4260766, at *5 (M.D. Pa. July 24, 2020). This growing body of caselaw is also fatal to this petition and compels the denial of Counterman's individual federal habeas corpus claim.

III . Recommendation

Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, (Doc. 1), IT IS RECOMMENDED that the Petition and motion both be DENIED. In addition, since the petitioner has not demonstrated “a substantial showing of the denial of a constitutional right.” 28 U.S.C § 2253(c)(2); see also Buck v. Davis , 137 S.Ct. 773-75 (2017); Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003); Slack v. McDaniel , 529 U.S. 473, 484 (2000), it is also recommended that a certificate of appealability should not issue. Further, since Counterman, a pro se inmate litigant, cannot serve as a class representative, this class certification proposal does not meet the mandatory threshold consideration that the representative party will fairly and adequately protect the interests of the class, and this pro se request for class certification should be DENIED.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

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Notes:

The institution's response to this unprecedented pandemic is detailed in a declaration of Jonathan Kerr, which has been filed in conjunction with the Respondents' response to this petition. (Doc. 27-1).

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