Alcorta v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Brian Alcorta
v. 	Case No. 21-cv-250-PB
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Brian Alcorta, a transgender female inmate at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”),1 has filed a pro se petition seeking release to home
confinement pursuant to 28 U.S.C. § 2241 and the CARES Act.2 	In
support, Alcorta contends that she is at risk of severe illness
if she were to contract COVID-19. 	The warden moves for summary
judgment (Doc. No. 13), and Alcorta objects (Doc. Nos. 19, 21).
Standard
“Summary judgment is appropriate when the moving party
shows that ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’”
Joseph v. Lincare, Inc., 989 F. 3d 147, 157 (1st Cir. 2021)
(quoting Fed. R. Civ. P. 56(a)). 	In making that determination,
1 The court uses female pronouns in reference to Alcorta, as
are used in the record.
2 The CARES Act does not provide this court with authority
to release Alcorta. 	See Sept. 1, 2021 Order (Doc. No. 22)
(approving July 27, 2021 Report and Recommendation (Doc. No. 16)
(citing cases)).
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the court construes the record in the light most favorable to
the nonmoving party. 	Thompson v. Gold Medal Bakery, Inc., 989
F.3d 135, 141 (1st Cir. 2021). 	To avoid summary judgment, the
nonmoving party “must adduce specific facts showing that a trier
of fact could reasonably find in his favor” and “cannot rely on
conclusory allegations, improbable inferences, acrimonious
invective, or rank speculation.” 	Id. 	Summary judgment is
required if a party fails to make a sufficient showing to
establish an essential element of his or her case. 	Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Background
Alcorta pleaded guilty in the Western District of Texas,
San Antonio Division, to one count of conspiracy to distribute
methamphetamine. 	United States v. Alcorta, No. 5:13-CR-316-
OLG(13) (W.D. Tex. July 20, 2015). 	In October 2015, she was
sentenced to 151 months of imprisonment to be followed by five
years of supervised release. 	She is currently serving her
sentence at FCI Berlin. 	Alcorta has filed several motions in
the Western District of Texas for reduction of her sentence,
which have been denied by the sentencing court.
Alcorta is thirty-three years old. 	The record shows, and
the warden does not dispute, that Alcorta has asthma and a
seventeen-year history of smoking before being incarcerated.
Alcorta takes medication prescribed for her asthma at FCI
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Berlin. 	She contends that she is at an increased risk of
serious illness if she were to contract COVID-19, and the warden
has not disputed that issue for purposes of the motion for
summary judgment. 	See, e.g., Doc. No. 13-1, ¶ 72 (“Medical
literature supports the idea that Petitioner’s smoking history
makes her more at risk for severe illness from COVID-19.”).
The warden submitted the affidavit of Dr. Pamela Pedersen,
M.D., who is the Acting Clinical Director FCI Berlin, in support
of the warden’s motion for summary judgment. 	Doc. 13-1. 	As
described by Dr. Pedersen, the Bureau of Prisons (“BOP”) and FCI
Berlin have taken extensive measures to control the COVID-19
pandemic in the prison environment. 	Doc. 13-1, ¶¶ 9-68
(Declaration of Dr. Pedersen); see also Mateo v. Warden, No. 20-
cv-01012-PB, 2021 WL 2109748, at *3, 2021 U.S. Dist. LEXIS
98383, at *7-*8 (D.N.H. May 24, 2021). 	The measures taken at
FCI Berlin include quarantines, testing, changes in daily
routines, and vaccination. 	See Doc. No. 13-1, ¶¶ 9-68. 	The
number of fully-vaccinated FCI Berlin inmates has increased
substantially since Dr. Pedersen executed her declaration.3
3 The BOP’s daily COVID-19 vaccine update states that at
least 123 FCI Berlin staff members and 547 FCI Berlin inmates
had been fully vaccinated as of September 8, 2021. 	See BOP
COVID-19 Vaccine Implementation,
https://www.bop.gov/coronavirus/ (last visited Sept. 9, 2021).
Dr. Pedersen reported lower vaccination counts at FCI Berlin in
June 2021 when she executed her declaration:
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Dr. Pedersen’s June 2021 declaration reports that FCI Berlin did
not have a positive COVID-19 test until October 2020, coped with
an outbreak in winter/spring 2021, and then brought that
outbreak under control at the prison.4
Alcorta asserts that there were many cases of COVID-19 at
FCI Berlin in spring 2021, and that a new outbreak of the virus
began circulating among inmates in August 2021. 	It is
undisputed that COVID-19 remains a present concern; the State of
New Hampshire has listed FCI Berlin in September 2021 as an
institution with an ongoing COVID-19 outbreak, see N.H. Covid-19
Response, N.H. DHHS Update—Sept. 9, 2021,
https://www.covid19.nh.gov/news/dhhs-updates (last visited Sept.
9, 2021). 	The case counts associated with the current outbreak
(totaling 6 staff members and 36 inmates, to date), are
substantially lower than the case counts involved in the spring
2021 outbreak (which involved 9 staff members and 192 inmates.
As of June 9, 2021, at least 120 staff have been fully
vaccinated (roughly 55.6% of staff)[,] 197 inmates have
received one dose of a two-dose vaccine, and 318 inmates
have been fully vaccinated.
Doc. No. 13-1, ¶ 68.
4 See N.H. Covid-19 Response, N.H. DHHS Update—Sept. 2,
2021, www.covid19.nh.gov/news/dhhs-updates (last visited Sept.
8, 2021) (winter/spring 2021 outbreak was deemed closed on May
24, 2021). 	Dr. Pedersen reported that as of June 21, 2021, no
FCI Berlin inmate had tested positive for COVID-19 since May 1,
2021. 	See Doc. 13-1 at ¶ 66.
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See id. 	The BOP website currently lists 3 FCI Berlin staff
members and 0 inmates as confirmed active cases. 	See BOP COVID-
19 Cases, www.bop.gov/coronavirus/ (last visited Sept. 9, 2021).
Dr. Pedersen has reported that Alcorta had been tested
repeatedly for Covid-19 and had negative results each time.
Doc. 13-1, ¶ 72.
Alcorta has been offered a vaccine for COVID-19 at FCI
Berlin, but she refused to be vaccinated because she states she
had an adverse reaction to a vaccine (not the COVID-19 vaccine)
in the past. 	It is undisputed that the FCI Berlin medical staff
members have continued to offer her the vaccine despite her
refusal. 	See, e.g., Doc. No. 13-1, ¶¶ 68, 72 (“FCI Berlin
continues to order vaccinations and frequently encourages those
inmates who previously refused to reconsider.”). 	And she has
presented no evidence here that any medical professional has
recommended that she decline the COVID-19 vaccine.
Discussion
Alcorta contends that the conditions of her confinement
place her in danger of contracting COVID-19, and that the
warden’s failure to release or adequately protect her amounts to
a violation of her rights under the Eighth Amendment. 	The
warden notes that § 2241 may not be the appropriate means to
challenge conditions of confinement, but, for purposes of the
summary judgment motion, the warden further argues that Alcorta
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cannot show that FCI Berlin prison officials have been
deliberately indifferent to a substantial risk of serious harm.5
An Eighth Amendment claim that challenges the conditions of
a prisoner’s confinement, as Alcorta’s claim does, requires
proof of two elements: 	(1) an objective requirement that the
prisoner was incarcerated under conditions that posed a
“substantial risk of serious harm,” and (2) a subjective
requirement that the defendant acted or failed to act with
“deliberate indifference to inmate health or safety.” 	Farmer v.
Brennan, 511 U.S. 825, 834 (1994). 	To establish deliberate
indifference, a prisoner must show that the defendant knew of
the substantial risk to her health or safety and disregarded
that risk, amounting to a wanton or reckless failure to prevent
harm. 	See Zingg v. Groblewski, 907 F.3d 630, 635 (1st Cir.
2018). 	Stated in other terms, to meet the subjective component,
an inmate must show that the official’s mental state was
equivalent to criminal recklessness, which is “‘characterized by
obduracy and wantonness, not inadvertence or error in good
faith.’” 	Mateo, 2021 WL 2109748, at *3, 2021 U.S. Dist. LEXIS
98383, at *7 (quoting Leite v. Bergeron, 911 F.3d 47, 52-53 (1st
Cir. 2018)).
5 The court has presumed, without deciding, that a habeas
petition under § 2241 is the appropriate means to raise
Alcorta’s Eighth Amendment claim. 	See Mateo, 2021 WL 2109748,
at *2 & n.3, 2021 U.S. Dist. LEXIS 98383, at *5 & n.3.
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The undisputed matters stated in Dr. Pedersen’s declaration
and the case counts and vaccination information published each
day by the state public health authority and the BOP (as to
which judicial notice is properly taken, see, e.g., Robertson v.
Warden, No. 1:20-CV-2117, 2021 WL 916253, at *4 n.5, 2021 U.S.
Dist. LEXIS 44637, at *24 n.5 (M.D. Pa. Mar. 10, 2021)), all
demonstrate that responsible officials at FCI Berlin have
implemented detailed measures to address and ameliorate the
risks to inmate health presented by COVID-19. 	Those measures
have included offering to vaccinate Alcorta, an inmate who
presents no competent medical evidence that the vaccine is
contraindicated for her. 	Because it is undisputed that the
vaccine continues to be available to her, that her health
conditions potentially affecting her risk for serious COVID-19
illness have been addressed, and that detailed measures in
addition to vaccination have been implemented to reduce the risk
of COVID-19 infection among FCI Berlin inmates, Alcorta has
failed to raise any genuine dispute of fact as to the subjective
component of her Eighth Amendment claim. 	Accordingly, the
district judge should grant the respondent’s motion for summary
judgment.
Conclusion
For the foregoing reasons, the district judge should grant
the warden’s motion for summary judgment (Doc. No. 13), order
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that judgment be entered, and direct that the case be closed.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within that time waives
the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
September 10, 2021
cc: 	Brian Alcorta, pro se.
Seth R. Aframe, Esq.
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