Cheek v. Warden of Fed Med Ctr, et al

United States Court of Appeals
for the Fifth Circuit

No. 20-10712

John Ray Cheek,

Petitioner—Appellant,

versus

Warden of Federal Medical Center; Federal Medical
Center; Michael Carvajal; Federal Bureau of Prisons
Director,

Respondents—Appellees.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-677

Before Jolly, Southwick, and Wilson, Circuit Judges.
Per Curiam:*
A federal prisoner brought a habeas application pursuant to 28 U.S.C.
§ 2241. Among other things, the application sought release from a Federal
Medical Center to home confinement due to the global pandemic created by

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 24, 2020

Lyle W. Cayce
Clerk
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COVID-19. The district court dismissed for lack of subject-matter
jurisdiction because it held Section 2241 to be an improper vehicle for the
claims. Relying on other grounds, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND
John Ray Cheek is confined in the Federal Medical Center in Fort
Worth, Texas, as a result of his 2011 convictions for bank robbery and using,
carrying, and brandishing a firearm during or in relation to a crime of
violence. He and other inmates filed a putative class action via a Section 2241
habeas application in the United States District Court for the Northern
District of Texas. In that filing, the inmates alleged various constitutional
violations and principally sought relief in the form of release to home
confinement.
Before the Government responded, the district court dismissed the
case for lack of subject-matter jurisdiction. The court held that Section 2241
was not the proper basis for such claims. The court characterized the
prisoners’ allegations as “challenging unconstitutional conditions of
confinement.” Those, the court held, were not properly brought in a
traditional habeas corpus action. The court then dismissed the case for lack of
subject-matter jurisdiction. Cheek appeals.

DISCUSSION
Cheek’s goal is to be released to home confinement. We must decide
whether Cheek has brought the right form of suit to get such relief and, if he
has, whether he is entitled to be sent home.

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I. Section 2241
Section 2241 applications are used to challenge the length of a
prisoner’s sentence. See, e.g., Davis v. Fechtel, 150 F.3d 486, 487–88, 490 (5th
Cir. 1998). If the prisoner wishes to challenge the conditions of his
confinement, that claim is brought under 42 U.S.C. § 1983. See id. at 490. It
is the “blurry” distinction between the two that we try to clarify, at least a
little, today. See Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997).
When a federal prisoner contests being confined at all and, in addition,
the conditions of the confinement, “a court [can] split the complaint and deal
with that portion which is properly before it.” Shaw v. Briscoe, 526 F.2d 675,
676 (5th Cir. 1976) (discussing Preiser v. Rodriguez, 411 U.S. 475, 499 & n.14
(1973)). The district court summarily dismissed Cheek’s suit in its entirety
without determining if at least some claims were properly brought using
Section 2241.
Cheek is seeking a change in his physical confinement when he
requests that he be moved to home confinement due to the risk of contracting
COVID-19 while in the Federal Medical Center. “[R]elease from physical
confinement in prison constitutes release from custody for habeas purposes,
even though the state retains a level of control over the releasee.” Coleman
v. Dretke, 409 F.3d 665, 669 (5th Cir. 2005). If Cheek’s effort to be released
from a medical center to home confinement is “challenging the fact and
duration of his confinement,” as Cheek argues it is, then suit under Section
2241 is proper.
Two circuits have addressed the validity of a Section 2241 claim in the
context of the COVID-19 pandemic. Wilson v. Williams, 961 F.3d 829 (6th
Cir. 2020); Medina v. Williams, 823 F. App’x 674 (10th Cir. 2020). The Sixth
Circuit held that Section 2241 was the proper vehicle when prisoners sought
“release from custody to limit their exposure to the COVID-19 virus.”
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Wilson, 961 F.3d at 832–33. This was so because the prisoners argued “the
constitutional violations occurring at [the prison] as a result of the pandemic
can be remedied only by release.” Id. at 838. Cheek makes a similar
argument. The Tenth Circuit panel did not rule on the merits, but it did
suggest “the claim could be construed as also contending that in light of the
pandemic [the prisoner] should be released from custody because there are
no conditions of confinement that could adequately prevent an Eighth
Amendment violation.” Medina, 823 F. App’x at 676. We agree.
Cheek’s request for release to home confinement in the context of a
global pandemic was properly brought as an application for a writ of habeas
corpus under Section 2241 because a favorable ruling from the district court
would accelerate his release.
1

II. Relief requested
Though a habeas application is appropriate, Cheek encounters the
barrier that the precise remedy he seeks is outside the scope of a federal
court’s authority.

1
This holding, though, does not alter the availability and requirements of other
statutory provisions under which prisoners may seek relief due to COVID-19. See, e.g.,
Valentine v. Collier, 978 F.3d 154 (5th Cir. 2020) (holding that the Prison Litigation Reform
Act’s exhaustion requirements were not excused by the pandemic); United States v. Franco,
973 F.3d 465 (5th Cir. 2020) (holding that the exigent circumstances of the COVID-19
pandemic do not excuse the statutory requirements for requesting compassionate relief —
the prisoner must first seek relief from the BOP before seeking court intervention). But see
Valentine v. Collier, 956 F.3d 797, 807 (5th Cir. 2020) (Higginson, J., concurring) (“[O]ur
reasoning on PLRA’s exhaustion requirement does not foreclose federal prisoners from
seeking relief under the First Step Act’s provisions for compassionate release. Though that
statute contains its own administrative exhaustion requirement, several courts have
concluded that this requirement is not absolute and that it can be waived by the government
or by the court, therefore justifying an exception in the unique circumstances of the
COVID-19 pandemic.” (internal citation omitted)).
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The relevant statute states: “The Bureau of Prisons shall, to the
extent practicable, place prisoners with lower risk levels and lower needs on
home confinement for the maximum amount of time permitted under this
paragraph.” 18 U.S.C. § 3624(c)(2). COVID-19 concerns expanded the
Bureau of Prisons’ (“BOP”) power through legislation and directives from
the Attorney General, but the pandemic did not create judicial authority to
grant home confinement. Specifically, in March 2020, the Attorney General
asserted that “for some eligible inmates, home confinement might be more
effective in protecting their health”; the Attorney General provided a non-
exhaustive list of discretionary factors for the BOP to consider in making this
determination.
2
Soon after, the Attorney General issued a second
memorandum that instructed the BOP to “immediately review all inmates
who have COVID-19 risk factors, as established by the CDC” and allowed
the BOP to release prisoners, even in the absence of appropriate at-home
monitoring.
3
As just noted, though, these directives were given to the BOP.
Cheek proposes a route for us through use of a recent Congressional
enactment that established a COVID-19-related procedure. See Pub. L. No.
116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020). The provision on which
Cheek bases his argument states:
During the covered emergency period, if the Attorney General
finds that emergency conditions will materially affect the
functioning of the Bureau, the Director of the Bureau may
lengthen the maximum amount of time for which the Director
is authorized to place a prisoner in home confinement under

2
Memorandum from the Attorney General on Prioritization of Home
Confinement as Appropriate in Response to COVID-19 Pandemic to Director of Bureau of
Prisons (Mar. 26, 2020).
3
Memorandum from the Attorney General on Increasing Use of Home
Confinement at Institutions Most Affected by COVID-19 to Director of Bureau of Prisons
(Apr. 3, 2020).
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the first sentence of section 3624(c)(2) of title 18, United States
Code, as the Director determines appropriate.
Id. (emphasis added). This provision does not grant a court the necessary
power to order Cheek to be placed in home confinement. It is the BOP and
the Attorney General who have the discretion to consider the
appropriateness of home release based on certain statutory and discretionary
factors. No inmate has a constitutional right to be housed in a particular place
or any constitutional right to early release. See Wottlin v. Fleming, 136 F.3d
1032, 1037 (5th Cir. 1998); Rublee v. Fleming, 160 F.3d 213, 217 (5th Cir.
1998). It is not for a court to step in and mandate home confinement for
prisoners, regardless of an international pandemic.
To be clear, though, vested authority in the BOP might not wholly
eliminate a court’s role in such decisions. See Melot v. Bergami, 970 F.3d 596,
599–600 (5th Cir. 2020). Under the Elderly Offender Home Detention
Program, this court clarified that discretion “does not mean that the
Attorney General’s or BOP’s determinations regarding participation in the
Program are entirely insulated from judicial review.” Id. at 600. A challenge
to the BOP’s or Attorney General’s interpretation of the statute would make
judicial review appropriate. Id.
Here, though, the record does not indicate the extent to which the
BOP actually considered Cheek for home-confinement release. Without a
denial from the BOP, there is nothing for us to review. Cheek presents no
indication that the BOP denied him or others, appropriately or otherwise, a
request for home confinement. Instead, Cheek seems to challenge the BOP’s
silence, without any specific adverse decision. Cheek states that BOP
officials and staff are ignoring inmates or refusing to provide them a remedial
process. He asserts: “Inmates have no access to administrative remedies.”
These declarations cannot bypass the general rule that we must have some
decision to review under Melot. Thus, even Melot does not give us authority
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here to review an adverse decision because no such decision is present in the
record.
We may affirm on any ground before the district court, even if it was
not the basis for the district court’s decision. Janvey v. Alguire, 847 F.3d 231,
243 n.10 (5th Cir. 2017). Here, the district court classified Cheek’s claims as
challenges to the “conditions of confinement” and dismissed the case for
lack of subject-matter jurisdiction. We find that Cheek’s claims do sound in
habeas but that he has not presented an administrative decision that this court
can review.
4
Because release to home confinement is a discretionary decision
left to the Attorney General and the BOP, and there is no denial of relief for
the court to review, neither the district court nor this court can review the
BOP’s failure to release Cheek to home confinement. See United States v.
Sneed, 63 F.3d 381, 389 n.6 (5th Cir. 1995).
AFFIRMED.

4
The Tenth Circuit has affirmed the dismissal of a habeas petition under Rule
12(b)(6) after finding that the district court improperly dismissed based on a lack of subject-
matter jurisdiction. Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290 (10th Cir. 2001). That
court said, “[A]lthough the district court had subject matter jurisdiction over the
petitioners’ claims under 28 U.S.C. § 2241, it should have dismissed for failure to state a
claim under Rule 12(b)(6).” Id. Further, when “remand would only require a new Rule
12(b)(6) label for the same Rule 12(b)(1) conclusion,” remand is unnecessary. Morrison v.
Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010). We find that analysis applicable here.
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