USA v. CAVANAUGH

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
v.
JOHN J. CAVANAUGH, JR.,
Defendant.
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Docket No. 2:19-cr-00131-NT
ORDER ON MOTION FOR COMPASSIONATE RELEASE
On February 22, 2023, John J. Cavanaugh, Jr. self-reported to begin serving a
36-month sentence at FMC Devens. Sentence Monitoring Computation Data 1 (ECF
No. 186). On June 28, 2023, Mr. Cavanaugh mailed a Motion for Compassionate
Release to this Court. Mot. for Compassionate Release (ECF No. 185). On September
1, 2023, the Government filed its response. Gov’t’s Resp. in Opp’n to Mot. for
Compassionate Release (“Gov’t’s Opp’n”) (ECF No. 207).
The Government’s supported chronology of Mr. Cavanaugh’s compassionate
release request demonstrates that Mr. Cavanaugh has not properly exhausted his
administrative remedies.1 Gov’t’s Opp’n. at 1–4. Under 18 U.S.C. § 3582(c), I may not
1 	Mr. Cavanaugh submitted a request for compassionate release consideration to FMC Devens
on June 21, 2023, in which he asserted: (1) that he had been denied his antidepression medication,
Vraylar, and was suffering from debilitating PTSD and anxiety; (2) that he had lost a dangerous
amount of weight; and (3) that his hypertension had become dangerously high. Gov’t’s Resp. in Opp’n
to Mot. for Compassionate Release (“Gov’t’s Opp’n”) Ex. 1: Inmate Request for Compassionate
Release Consideration 1–2 (ECF No. 207-1). The next week, and before receiving a response from FMC
Devens, Mr. Cavanaugh filed a motion for compassionate release with this Court, claiming (1) that he
had not been receiving Vraylar, and was suffering from nightmares, severe depression, anxiety, and
mood fluctuations; (2) that his skin cancer was not being treated adequately; and (3) that he had a
tumor behind his ear that FMC Devens had concluded it did not have the capability to remove. Mot.
for Compassionate Release 1–2 (ECF No. 185). On July 11, 2023, the Acting Warden at FMC Devens
denied Mr. Cavanaugh’s request, informing him that he could appeal using the administrative remedy
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consider a motion for compassionate release where the inmate has not met the
exhaustion requirement unless the Government waives the exhaustion requirement,
which it has not done here. United States v. Perez-Crisostomo, No. 2:16-cr-00085-GZS,
2023 WL 3821098, at *3 (D. Me. June 5, 2023). The exhaustion requirement can be
met in two ways.
Both begin with requesting that the BOP bring a motion on the
defendant’s behalf. Following that initial step, the prisoner has a choice.
First, he may wait for a response from the BOP and seek further
administrative review of that response (assuming it is adverse). On that
path, only once he has exhausted all administrative rights to appeal may
he bring his motion in the district court. Second, a prisoner may wait 30
days after filing his request and—whether the BOP has ruled on the
request or not—he is free to file a motion in the district court.
United States v. Garrett, 15 F.4th 335, 338 (5th Cir. 2021) (internal citations and
quotation marks omitted); see also 18 U.S.C. § 3582(c)(1)(A); United States v. Mujo,
1:15-cr-00072-JDL-2, 2022 WL 4233755, at *1 (D. Me. Sept. 14, 2022).
process at the institution. Govt. Opp’n Ex. 2: FMC Devens response to compassionate release request
1 (ECF No. 207-2).
On July 26, 2023, I issued an Order to Show Cause why Mr. Cavanaugh’s motion should not
be denied for failing to either exhaust his administrative remedies or wait for 30 days following the
submission of a request to the warden of his facility. Order to Show Cause (ECF No. 191). Also on July
26, 2023, Mr. Cavanaugh mailed a “Motion for Compassionate Release,” which the Clerk docketed on
July 28, 2023 as a Response to the Order to Show Cause (ECF Nos. 193, 193-2). In the filing, Mr.
Cavanaugh presents additional arguments in support of compassionate release, but he does not
include proof that he had exhausted his administrative remedies. As a result, on August 3, 2023, I
denied the motion for compassionate release without prejudice. Order on Mot. for Compassionate
Release (ECF No. 194). On August 2, 2023, before receiving the order dismissing his motion, Mr.
Cavanaugh mailed a document to the Court that appeared to be a response to the Court’s July 26 show
cause order (ECF No. 195). The Clerk docketed the filing on August 4, labeling it as a Motion for
Reconsideration. In this filing, Cavanaugh asserts that his mental health has been “falling apart” and
he advances several other arguments in favor of release. Mot. for Reconsideration 1–2 (ECF No. 195).
He also attached his administrative release request to FMC Devens, the Acting Warden’s response,
and a variety of medical records. Mot. for Reconsideration – Attach. 1 (ECF No. 195-1). On August 14,
2023, I held a conference of counsel where I issued an oral order granting the motion for
reconsideration and directing the Government to respond to the Motion for Compassionate Release.
Oral Order (ECF No. 202).
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Mr. 	Cavanaugh 	came 	to 	the 	court 	prematurely,2 	and 	his 	subsequent
submissions have been flowing in without regard for the administrative review
process. I agree with the Government that Mr. Cavanaugh’s bases for relief are
evolving. As one basis for relief is dropped, another is added, and it is now unclear
which of the arguments are operative and which are moot.
Accordingly, I must once again deny his motion for compassionate release for
failure to meet the exhaustion requirement. If Mr. Cavanaugh wishes to file a new
motion for compassionate release, he must again meet the exhaustion requirement
by 	requesting 	release 	from 	the 	acting 	warden 	of 	his 	facility 	and then 	either
exhausting the BOP process or waiting thirty days after the submission of his
request. See United States v. Cain, 1:16-cr-00103-JAW-1, 2021 WL 388436, at *4 (D.
Me. Feb. 3, 2021) (“Successive compassionate release motions must independently
satisfy the exhaustion requirement.”).
Accordingly, Mr. Cavanaugh’s Motion for Compassionate Release (ECF No.
185) is DISMISSED without prejudice.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 3rd day of October, 2023.
2 	Mr. Cavanaugh filed his request for release with the warden of his facility on June 21, 2023.
See Mot. for Reconsideration – Attach. 1 at 5. The instant motion for compassionate release was filed
in this Court on June 30, 2023, before “the lapse of 30 days” and before he had fully exhausted all
administrative rights to appeal within the Bureau of Prisons. 18 U.S.C. § 3582(c)(1)(A).
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