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 Facility in Berlin, New Hampshire (“FCI Berlin”),
has filed a pro se petition seeking release to home confinement
pursuant to 28 U.S.C. § 2241 and the CARES Act. 	In support,
Alcorta contends that she is at risk of severe illness if she
were to contract COVID-19. 1 	Alcorta has also filed an “Emergency
Motion” (Doc. No. 5) to supplement her § 2241 petition in which
she asks the court to release her on bail because of an outbreak
of COVID 19 at the prison that occurred earlier in 2021.
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
1 The court uses female pronouns in reference to Alcorta, as
are used in the record.
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years of supervised release. 	She is currently serving her
prison 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.
The record in this case documents that Alcorta has asthma
and receives medication to treat that condition. 	She contends
that her asthma condition puts her at increased risk of serious
illness if she were to contract COVID-19. 	Alcorta has been
offered a vaccine for COVID-19, but she refused because she
states she previously had an allergic reaction that affected her
breathing (not a reaction to a COVID-19 vaccine). 	See Doc. No.
6, at 2; Doc. No. 13-2, at 77. 	She has offered no evidence that
any medical professional has recommended she decline the
vaccine, and the record indicates that the FCI Berlin medical
staff would offer her the vaccine again if she changes her mind
and decides to receive it. 	See Doc. No. 13-1 ¶ 73.
The Federal Bureau of Prisons (“BOP”) has implemented a
multi-step plan to control the transmission of COVID-19 within
the BOP and at FCI Berlin. 	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); see also Doc. 13-1, ¶¶ 9-68 (Declaration
of Pamela Pederson, M.D., FCI Berlin Acting Clinical Director).
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Vaccination, mask use, and social distancing are part of that
plan. 2 	See Doc. No. 13-1, ¶¶ 9-68.
Alcorta states that there were many cases of COVID-19 at
FCI Berlin during the spring of 2021. 	Case counts rose in
April-May 2021, but by the end of May 2021, the prevalence of
COVID-19 at FCI Berlin had fallen dramatically, and the N.H.
Department of Health and Human Services considered the outbreak
closed on May 24, 2021. 3 	The record here indicates that the last
positive test result for COVID-19 among inmates at FCI Berlin
was on May 1, 2021. 	See Doc. 13-1 ¶ 66 (regarding COVID-19 test
results preceding June 21, 2021). 	The BOP COVID-19 report,
which is updated and released each day, states that as of July
26, 2021, there were no positive test results among FCI Berlin
inmates, and one positive case among FCI Berlin staff members.
See BOP COVID-19 Cases, https://www.bop.gov/coronavirus/ (last
visited July 26, 2021). 	Alcorta has been tested repeatedly and
has had negative results each time. 	See Doc. 13-1 ¶ 72.
2 The BOP COVID-19 vaccine update states that 122 FCI Berlin
staff members and 500 FCI Berlin inmates were fully vaccinated
as of July 26, 2021, not counting any staff members who may have
received vaccine doses in the community but not in a BOP
facility. 	See BOP COVID-19 Vaccine Implementation,
https://www.bop.gov/coronavirus/ (last visited July 26, 2021).
3 A COVID-19 outbreak at that facility in April/May 2021,
involving 192 inmates and 9 staff cases, was deemed closed by
the State of New Hampshire on May 24, 2021. 	See COVID-19
Update-July 22, 2021, www.covid19.nh.gov/news/dhhs-updates
(“State Update”) (last visited July 26, 2021).
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Standard
A petitioner seeking relief through a writ of habeas corpus
may be released pending a determination on the merits of the
petition. 	Eaton v. Holbrook, 671 F.2d 670, 670 (1st Cir. 1982);
Mateo, 2021 WL 2109746, at *2. 	To qualify for release, however,
the petitioner must demonstrate “either (1) a clear case on the
law and facts, or (2) a substantial claim of constitutional
error and exceptional circumstances warranting immediate
release.” 	Mateo, 2021 WL 2109746, at *2, 2021 U.S. Dist. LEXIS
98383, at *4 (citing Glynn v. Donnelly, 470 F.2d 95, 98 (1st
Cir. 1972)). 	A substantial claim of constitutional error
requires a showing of a likelihood of success on the habeas
petition. 	Mateo, 2021 WL 2109746, at *2, 2021 U.S. Dist. LEXIS
98383, at *4. 	A successful showing on either prong of the Glynn
test entitles the petitioner to a bail hearing, which requires a
showing by clear and convincing evidence that the petitioner
would not be a danger to the public or a flight risk if
released. 	Mateo, 2021 WL 2109746, at *2, 2021 U.S. Dist. LEXIS
98383, at *4.
Discussion
As a preliminary matter, to the extent Alcorta seeks relief
under the CARES Act and/or 18 U.S.C. § 3582(c), this court lacks
authority to grant the request. 	See, e.g., United States v.
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Houck, No. 20-2216, 2 F.4th 1082, 2021 WL 2655056, at *3, 2021
U.S. App. LEXIS 19246, at *7 (8th Cir. June 29, 2021); United
States v. Saunders, 986 F.3d 1076, 1078 (7th Cir. 2021); United
States v. Mateo, No. 20-cv-1012-PB, 2021 DNH 89, 2021 WL
2109748, at *3, 2021 U.S. Dist. LEXIS 98383, at *5-6 (D.N.H. May
24, 2021).
Alcorta also seeks release to home confinement under
§ 2241. 	This court has construed her § 2241 petition to raise a
claim that her confinement at FCI Berlin during the COVID-19
pandemic violates the Eighth Amendment prohibition against cruel
and unusual punishment because of the risk of serious illness if
she were to contract COVID-19. 4 	As such, to be eligible for a
bail hearing, Alcorta would need to show a clear case on the
facts and law to support her assertion of an Eighth Amendment
violation or a likelihood she will succeed on her Eighth
Amendment claim and exceptional circumstances that warrant
immediate release. 	The record presented does not support either
outcome.
An Eighth Amendment claim that challenges the conditions of
a prisoner’s confinement requires proof of two elements: 	(1) an
objective requirement that the prisoner was incarcerated under
4 The court will presume, without deciding, that a habeas
petition under § 2241 is the appropriate means to raise this
claim. 	See Mateo, 2021 WL 2109748, at *2 & n.3, 2021 U.S. Dist.
LEXIS 98383, at *5 & n.3.
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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 Xingg v. Groblewski, 907 F.3d 630,
635 (1st Cir. 2018).
Even if Alcorta could show that the conditions of her
confinement presented a substantial risk of serious harm due to
the potential for illness from COVID-19, she cannot meet the
subjective requirement of deliberate indifference. 	Cf. Mateo,
2021 WL 2109748, at *4 n.6, 2021 U.S. Dist. LEXIS 98383, at *8
n.6 (“The fact that an outbreak has occurred, without more, is
insufficient to establish that the BOP was deliberately
indifferent to the risk of harm that COVID-19 poses.”). 	The
record shows that Alcorta’s medical conditions are being
treated, and that the BOP and the warden at FCI Berlin have
implemented detailed measures to address and ameliorate the
risks to inmate health presented by COVID-19, including
providing vaccines to inmates and staff. 	Those efforts appear
to have been a reasonable response to the risk, given the
reduction in cases of COVID-19 at FCI Berlin. 	The efforts to
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protect Alcorta and other prisoners at FCI Berlin from the
COVID-19 virus are reasonable and do not show any deliberate
indifference to the risks posed by the virus. 	See Mateo, 2021
WL 2109748, at *4, 2021 U.S. Dist. LEXIS 98383, at *8.
Therefore, Alcorta has not shown a clear case in her favor
on the law and facts of the case or a likelihood of success on
her petition and grounds for immediate release. 	As a result,
her request for bail is properly denied.
Conclusion
For the foregoing reasons, the district judge should deny
Alcorta’s motion for release on bail (Doc. No. 5). 	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 the specified 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
July 27, 2021
cc: 	Brian Alcorta, pro se
Seth R. Aframe, Esq.
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