Jeffrey Olson v. Warden Schuylkill FCI

CLD-061 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2436
___________
JEFFREY OLSON,
Appellant
v.
WARDEN SCHUYLKILL FCI; and
DIRECTOR FEDERAL BUREAU OF PRISONS
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Civ. No. 1:21-cv-00387)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for a Decision on the Issuance of a Certificate of Appealability or
for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 13, 2022
Before: AMBRO, SHWARTZ and BIBAS, Circuit Judges
(Opinion filed: January 27, 2022)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Proceeding pro se, Jeffrey Olson and three other inmates filed a putative class
petition for habeas relief under 28 U.S.C. § 2241.1 Olson in essence claimed that FCI
Schuylkill—his place of confinement—has failed to keep inmates safe from COVID-19,
in violation of the Eighth Amendment. For relief, Olson primarily requested as follows:
“immediate transfer of the most medically vulnerable individuals to home confinement or
other appropriate settings[,] and immediate implementation for those who remain of the
social[-]distancing and hyg[i]ene measures essential to lowering the risk of the disease
and death.” Pet. 2; see also id. at 47-50.2
The Magistrate Judge issued a thorough report recommending that no class be
certified (given Olson’s pro se status), and that Olson’s individual habeas claims be
rejected (on exhaustion, cognizability, and merits grounds). Over Olson’s objections the
District Court entered an order on July 21, 2021, adopting the Magistrate Judge’s report
and denying all relief. This timely appeal by Olson followed.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a); a certificate of
appealability is not required for this appeal. See Reese v. Warden Phila. FDC, 904 F.3d
1As Olson is the sole appellant here, moving forward we will refer to only him in
describing the claims raised and adjudicated.
2
Last year, we issued a decision affirming the District Court’s order denying Olson’s
motion for compassionate release. See United States v. Olson, 849 F. App’x 340, 341 (3d
Cir. 2021) (per curiam). As indicated below, we do not consider Olson’s habeas action to
be duplicative of his motion for compassionate release in the sense that we would need to
consider the preclusive effects of our prior decision.
2
244, 246 (3d Cir. 2018). Our review is de novo. See Blood v. Bledsoe, 648 F.3d 203, 206
(3d Cir. 2011) (per curiam).
For many of the reasons given in the Magistrate Judge’s report, we agree with the
District Court’s disposition below. To complement the Magistrate Judge’s analysis, we
offer just a few points.
First, the District Court properly rejected Olson’s attempt to certify a class of
habeas petitioners. This Court and others have recognized that “pro se litigants are
generally not appropriate as class representatives.” Hagan v. Rogers, 570 F.3d 146, 158–
59 (3d Cir. 2009); see also DeBrew v. Atwood, 792 F.3d 118, 132 (D.C. Cir. 2015);
Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000); Oxendine v.
Williams, 509 F.3d 1405, 1407 (4th Cir. 1975).3 Notably, this is not a case in which a
district court prematurely denies class certification before adjudicating a pro se litigant’s
pending motion for appointment of counsel; Olson filed no such motion on the District
Court’s docket. Cf. Hagan, 570 F.3d at 159.4
3
In part to counter that case law, Olson references class actions arising out of FCI
Lompoc and FCI Danbury. Those cases, however, have been litigated by counsel. See,
e.g., Torres v. Milusnic, 472 F. Supp. 3d 713, 718 (C.D. Cal. 2020); Martinez-Brooks v.
Easter, 459 F. Supp. 3d 411, 414 (D. Conn. 2020). Equally unavailing is Olson’s reliance
on United States Parole Commission v. Geraghty, 445 U.S. 388 (1980), as the inmates in
that case, too, were represented by counsel, see Geraghty v. U.S. Parole Comm’n, 579
F.2d 238, 252 (3d Cir. 1978). Perhaps Olson cites Geraghty to instead argue more
broadly that inmate class actions are legally permissible. But that point is irrelevant to the
District Court’s decision and undisputed, in any event.
4
In his objections to the Magistrate Judge’s report, Olson referenced a counsel motion
that was filed in the case of a different inmate.
3
Next, on the issue of exhaustion, we observe that federal prisoners must avail
themselves of available administrative remedies before they may pursue relief in court
under § 2241. See Moscato v. BOP, 98 F.3d 757, 760 (3d Cir. 1996); see also Callwood
v. Enos, 230 F.3d 627, 634 (3d Cir. 2000) (“[W]e have consistently applied an
exhaustion requirement to claims brought under § 2241”). In its habeas opposition, the
Government argued that Olson failed to complete the multistep institutional review
process. Olson responded in conclusory fashion that exhaustion would be futile given the
amount of time it takes to secure review. The Magistrate Judge agreed with the
Government and determined that certain of Olson’s claims are inexcusably unexhausted
and thus procedurally defaulted. Olson does not contest the exhaustion determination on
appeal, and we discern no error in it regardless.
Finally, we touch on Olson’s request for transfer to home confinement. The
Magistrate Judge interpreted that request as an attempt by Olson to use § 2241 as an end-
run around the compassionate release statute (18 U.S.C. § 3582(c)(1)(A)) and the federal
CARES Act, which vests in the Director of the Bureau of Prisons discretion to transfer an
inmate to home confinement. See, e.g., 18 U.S.C. § 3624(c)(2); CARES Act, Pub. L.
116-136, Mar. 27, 2020, 134 Stat. 281, Div. B, Title II, § 12003(b)(2). We agree with the
Magistrate Judge that such a maneuver would be impermissible. See Wilson v. Williams,
961 F.3d 829, 838 (6th Cir. 2020) (“A district court reviewing a claim under § 2241 does
not have authority to circumvent the established procedures governing the various forms
of release enacted by Congress.”). But we are of the view that Olson is instead seeking
release as redress for allegedly Eighth Amendment-violative conditions of confinement
4
solely through the mechanism of § 2241. The District Court thus possessed habeas
jurisdiction, see Hope v. Warden York Cnty. Prison, 972 F.3d 310, 325 (3d Cir. 2020),
and had the authority to order a change in Olson’s custody if there was a valid basis to do
so, cf. Johnston v. Marsh, 227 F.2d 528, 529-30 (3d Cir. 1955). As the Magistrate Judge
rightly determined, though, Olson’s Eighth Amendment claims lack merit because he
failed to identify conduct rising to the level of deliberate indifference by his jailors, see
Hope, 972 F.3d at 329.
Accordingly, for the reasons given above, the District Court’s July 21, 2021 order will be
affirmed. See 3d Cir. L.A.R. 27.4 (2011); 3d Cir. I.O.P. 10.6 (2018).
5