NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1648 ___________

ELDON LAMAR WASHINGTON, Appellant

v.

WARDEN CANAAN USP ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:21-cv-00211) District Judge: Honorable Sylvia H. Rambo ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2), Or for Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 on June 24, 2021

Before: McKEE, GREENAWAY, JR., and BIBAS, Circuit Judges

(Opinion filed: September 7, 2021) ____________________________________ ___________

OPINION* ___________

PER CURIAM

Eldon Washington is serving a sentence, imposed by the United States District Court

for the Eastern District of Kentucky, at USP Canaan in Waymart, Pennsylvania. According

to the Government, Washington’s projected release date is March 31, 2022.

Washington filed in the United States District Court for the Middle District of Pennsyl-

vania a habeas petition under

seeking release to home confinement or

from custody altogether. Washington asserted in his petition that: federal prisons present a

“uniquely hospitable environment for COVID-19 to spread”; his particular medical profile

makes him susceptible to severe consequences from a SARS-CoV-2 infection; and his con-

ditions of confinement violate the Eighth Amendment.

After denying Washington’s motion for appointment of counsel and eliciting the Gov-

ernment’s response to Washington’s habeas petition, the District Court denied the petition

on the merits. The District Court determined that there was no basis to disturb the decision

of the Bureau of Prisons (BOP) rejecting Washington’s plea for home confinement. The

District Court reasoned that discretion to make home confinement decisions is vested

solely in the BOP and, to the extent that the BOP’s exercise of discretion is subject to

judicial review, the exercise was reasonable in Washington’s case. Additionally, the

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 District Court noted that, insofar as a request for compassionate release under

(c)(1)(A)(i) was embedded in Washington’s habeas petition, such a request needed

to be directed to the sentencing court (in Kentucky).

The District Court next addressed Washington’s Eighth Amendment conditions-of-con-

finement claim. The District Court assumed, arguendo, that such a claim is cognizable in

habeas proceedings under § 2241. And it determined that the claim lacks merit because

“even when considering Petitioner’s underlying health conditions, he has neither identified

a sufficiently serious deprivation that rises to the level of an Eighth Amendment violation

nor has he established that officials at USP Canaan have acted with deliberate indifference

to his health or safety.”

Washington now appeals the District Court’s judgment. He does not need a certificate

of appealability to proceed. See Reese v. Warden Phila. FDC,

(3d Cir.

2018). We have jurisdiction under

. Our review is plenary. See Reese,

.

We conclude that Washington’s petition was properly denied, for substantially the rea-

sons given in the District Court’s memorandum opinion. In particular, we agree with the

District Court that whether to transfer an inmate to home confinement is a decision within

the exclusive discretion of the BOP. See

(c)(2); see also CARES Act,

Mar. 27, 2020,

, Div. B, Title II, § 12003(b)(2) (“[T]he Director

of the [BOP] may lengthen the maximum amount of time for which the Director is author-

ized to place a prisoner in home confinement under [§ 3624(c)(2)].”) (emphasis added). We

also agree with the District Court that, assuming the cognizability of Washington’s Eighth

3 Amendment claim, cf. Hope v. Warden York Cty. Prison,

, 324–25 (3d Cir.

2020) (“Given the extraordinary circumstances that existed in March 2020 because of the

COVID-19 pandemic, we are satisfied that their § 2241 claim seeking only release on the

basis that unconstitutional confinement conditions require it is not improper.”) (emphasis

added), the claim lacks merit because Washington’s allegations fail to demonstrate delib-

erate indifference by USP Canaan (or the BOP more generally), see Farmer v. Brennan,

(1994); see also Hope,

(“Although the District Court

criticized the Government for the lack of ‘effective containment measures,’ and for not

doing ‘nearly enough’ to combat COVID-19, those critiques are not tantamount to estab-

lishing the Government’s deliberate indifference.”) (internal citation omitted); Wilson v.

Williams,

(6th Cir. 2020) (holding that the BOP’s early efforts to curtail

the spread of COVID-19 demonstrated “the opposite of a disregard of a serious health

risk”).

Because this appeal presents no substantial question, we will summarily affirm the

judgment of the District Court. See 3d Cir. L.A.R. 27.4 (2011); 3d Cir. I.O.P. 10.6 (2018).

4