Opinion
20 Cr. 652 (VM)
03-29-2024
UNITED STATES OF AMERICA, Plaintiff, v. DAVIT YEGHOYAN, Defendant.
DECISION AND ORDER
VICTOR MARRERO, UNITED STATES DISTRICT JUDGE.
Now before the Court is a motion filed by defendant Davit Yeghoyan (“Yeghoyan”) seeking a reduction in his term of imprisonment under the compassionate release provisions of 18 U.S.C. § 3582 (“Section 3582”). (See Dkt. No. 368 [hereinafter the “Motion” or “Mot.”]. ) For the reasons stated below, the Court denies the Motion.
Redacted versions of the relevant papers were filed by the parties on the Court's public docket, and unredacted versions were filed under seal, as they contained personal information about Yeghoyan's health. Citations in this Decision point the reader to filings available to the public, but the citations actually refer to the corresponding sealed and unredacted versions of the filings.
I. BACKGROUND
A. THE UNDERLYING CRIMINAL CASE
Yeghoyan, age 31, is one of nine defendants in the underlying criminal case. In November 2021, Yeghoyan pleaded guilty to racketeering conspiracy as set forth in Count One of the indictment. (See Dkt. No. 139; Indictment, Dkt. No. 2.)
During his plea colloquy, Yeghoyan admitted that from 2014 to 2020,
I was part of a group that worked together . . . to enrich the members of the group by obtaining money and goods through the use of fraudulent credit cards, and by running up credit accounts with the intent to never pay off the accumulated balances of these accounts by making misrepresentations to the creditors of these accounts and their agents.(Dkt. No. 130 at 14.) Yeghoyan also admitted that the group “possess[ed] credit cards that were coded with fraudulently obtained identifying information” and ran a credit card “in the name of a person other than myself through our business in Brooklyn in 2020 for goods and services that were never received, knowing that the balance of the credit card would never be paid off.” (Id.)
On August 22, 2022, the Court sentenced Yeghoyan to 45 months' imprisonment and ordered him to surrender to the Federal Bureau of Prisons (“BOP”) on November 17, 2022. (See Judgment, Dkt. No. 182.) The Court also ordered Yeghoyan to pay approximately $1.3 million in restitution. (See Id. at 6.)
B. YEGHOYAN'S PRIOR TREATMENT FOR ULCERATIVE COLITIS
On October 14, 2022, Yeghoyan visited Dr. Jack Braha (“Braha”), a gastroenterologist practicing in Brooklyn who had been treating Yeghoyan for ulcerative colitis, an inflammatory bowel disease. (See Mot. at 2-3.) Braha noted that Yeghoyan's symptoms had worsened and that he was having eight to ten bowel movements per day. (See Id. at 3.) Braha also noted,
Davit reports that he is going to be reporting to federal prison shortly. There are certain accommodations which will need to be made for a patient who has ulcerative colitis particularly who still has active disease and in flare. This includes the immediate availability to attend to a bathroom at any point during the day or night . . . . [H]e should be placed on the lower bunk given the above as well as be placed as close to a bathroom as possible . . . . In addition, given that he has an impaired immune system . . ., he will need to be separated as best as possible from individuals with communicable diseases . . . .(Mot. Ex. B at 14. )
The exhibits attached to Yeghoyan's Motion are stamped with Bates numbers, each with the prefix “YEGHOYAN.” Citations to such exhibits refer to the Bates numbers. Thus, for example, “Mot. Ex. B at 14” refers to the page contained in Exhibit B with the Bates stamp “YEGHOYAN000014.”
On October 20, Yeghoyan received an “infusion” of the drug Entyvio, his third in two months. (Mot. at 3.) On October 25, Yeghoyan surrendered early to the custody of the BOP at Federal Correctional Institution Allenwood (“FCI Allenwood”) in Pennsylvania, hoping that surrendering shortly after an infusion would help address his condition until he could receive treatment from BOP physicians. (See id.)
C. YEGHOYAN'S IMPRISONMENT AT FCI ALLENWOOD
Yeghoyan contends - and the Government does little, if anything, to dispute - that the treatment he received at FCI Allenwood was less than adequate. (See Id. at 3-10.) For example, Yeghoyan for months was prescribed a daily dose of 40 milligrams of prednisone, a corticosteroid that Yeghoyan argues “should only be used short-term to combat flare ups.” (Mot. at 4.) In a letter addressed "[t]o [w]hom [i]t [m]ay [c]oncern” and dated December 20, 2022, Braha called the longterm use of prednisone "unacceptable in the care of a patient with inflammatory bowel disease.” (Mot. Ex. B at 16.) However, the regular use of prednisone continued, according to another letter written by Braha on February 13, 2023:
I met with Davit's family member regarding Davit's care.
I reviewed notes that he has sent from prison and in review of his notes and reported experience, my concern is that he continues to suffer from ulcerative colitis, moderate-to-severe disease based on description requiring prolonged high doses of prednisone that is not being properly addressed by prison medical officials. This patient if he has not had resolution of symptoms on high doses of prednisone needs to be transferred to a hospital . . . . [H]e must be transferred to an inpatient setting to be seen by expert gastroenterology in my opinion.(Id. at 18.)
In January and February of 2023, Yeghoyan filed requests to be transferred to a medical facility, and the BOP denied both requests. (See Mot. at 6-7.) He filed with the BOP a request for compassionate release or a reduction in sentence in May 2023, and that request was also denied. (See Id. at 89.) On June 6, 2023, Braha wrote another letter “[t]o whom it may concern,” stating that Yeghoyan had been taking “prednisone for nearly 7 months according to reports to my office,” which “would appear to be a significant deviation from the standard of care.” (Mot. Ex. B at 19-20.) Braha wrote that, based upon records provided to him by Yeghoyan's family, Yeghoyan “clearly demonstrates signs of uncontrolled ulcerative colitis,” and he advised that Yeghoyan “should be immediately transferred to a hospital with expertise in the care of patients with inflammatory bowel disease.” (Id. at 19-20.)
D. YEGHOYAN'S MOVE TO FMC DEVENS
In July 2023, BOP reversed its prior decision and transferred Yeghoyan to Federal Medical Center Devens (“FMC Devens”) in Massachusetts. (See Mot. at 10.) He remains there now, and his scheduled release date is December 22, 2025, according to BOP's online inmate locator service as of the date of this Decision and Order.
FMC Devens is one of seven federal medical centers in the BOP system and provides “specialized medical services to federal inmates.” (Dkt. No. 367 [hereinafter “Gov't Supp. Br.”] Ex. G at 1.) Federal prisoners are assigned a “Medical Care” level between 1 and 4, “based on the medical history and health condition of the inmate.” (Id.) “Inmates with Care Level 1 needs are generally healthy,” while “[i]nmates with Care Level 4 needs are severely impaired.” (Id.) FMC Devens serves the medical and mental health care needs of male inmates at all four levels. (See id.) Yeghoyan is classified as a “Care Level 3” inmate, meaning he is a “fragile outpatient[] who require[s] frequent clinical contacts, and/or who may require some assistance with activities of daily living, but do[es] not require daily nursing supervision.” (Id. at 1-2.) Level 3 inmates also “may require periodic hospitalization.” (Id. at 1.)
When he arrived at FMC Devens, Yeghoyan was entitled to a lower bunk, “frequent bathroom requests,” and “5-7 additional rolls of toilet paper a week” due to his ulcerative colitis. (Dkt. No. 356 [hereinafter “Opp.”] Ex. A at 263.) Lab work performed on Yeghoyan revealed a serious bacterial infection, and he was moved to a hospital within FMC Devens. (See Mot. at 10.) On July 25, 2023, Yeghoyan saw a gastroenterologist - his first in-person interaction with such a doctor since incarceration. That doctor ordered that he be admitted immediately to a community hospital. (See Id. at 11.)
After Yeghoyan was discharged from the hospital, a rash developed on his shoulders. (See Mot. at 11.) On August 7, 2023, he visited an FMC Devens health clinic, where a nurse noted that he had been taking vancomycin, an antibiotic, which had been ordered by a doctor at the outside hospital. (See Id.; Id. Ex. D at 141.) The next day, a nurse practitioner noted the rash and also observed that Yeghoyan was “sitting, standing[,] walking, talking without any signs of distress, no guarding, no grimacing, no difficulty speaking in long clear full sentences while gesticulating easily with his arms, carrying a book.” (Id. Ex. D at 139.) Yeghoyan said he was aware that he would be seen again soon by a gastrointestinal specialist “and is willing to wait to be seen, says he doesn't need to go to the hospital today.” (Id.)
A week later, a gastroenterologist, Dr. Annie Chemmanur (“Chemmanur”) diagnosed him with “red man syndrome,” a reaction peculiar to vancomycin. (Mot. Ex. D at 162; see Mot. at 11 & n.13.) Chemmanur advised him to stop taking vancomycin and prescribed additional medication. (See Mot. Ex. D at 162.)
On August 9, 2023, Yeghoyan filed another compassionate release request, this time with the warden at FMC Devens. (See Mot. at 13.) On September 13, 2023, the warden denied the request, stating that Yeghoyan did not have a “deteriorating medical condition that would diminish your ability to function within a correctional setting.” (Mot. Ex. H at 746.) The warden further stated, “You . . . are independent with your activities of daily living and FMC Devens is able to manage your medical needs at this time.” (Id.)
On October 24, 2023, Yeghoyan underwent a colonoscopy performed by Chemmanur. (Id. Ex. D at 111.) Chemmanur found that the “sigmoid colon, descending colon, splenic flexure, transverse colon, ascending colon and cecum appeared normal.” (Id. at 112.) She further observed “[l]ocalized mild inflammation . . . in the recto-sigmoid colon” and “[n]on-bleeding internal hemorrhoids.” (Id.) Chemmanur also observed that the “examined portion of the ileum was normal.” (Id.) She recommended a repeat colonoscopy in six months and medication in the meantime. (See id.) During a follow-up appointment on December 5, 2023, Chemmanur repeated these recommendations and advised him to see a dermatologist for his rash and to see a rheumatologist to “rule out arthritis” for “shoulder pain and joint pain” due to “a family history of arthritis.” (Opp. Ex. A at 413.) Yeghoyan on December 5 “reported diarrhea 5-6 times per day,” and he “continues to have very frequent bowel movements, unless he takes low dose prednisone, which he has not been willing to take since November 2023, due to acute and long-term side effects.” (Gov't Supp. Br. Ex. G at 2.)
The day after his colonoscopy, a nurse practitioner at FMC Devens noted that his “results show improvement.” (Opp. Ex. A at 40.) On December 14, 2023, the medical staff at the facility did not assess Yeghoyan as needing a lower bunk or additional toilet paper, and he was cleared to work in food service without restrictions. (See Id. at 261.) Yeghoyan has been scheduled for a repeat colonoscopy in April or May 2024 and “continues to be seen by multiple specialists including internal medicine, gastroenterology, psychiatry, dermatology and ophthalmology.” (Gov't Supp. Br. Ex. G at 2.)
E. PROCEDURAL HISTORY
Through counsel, Yeghoyan moved in this Court for a sentence reduction on January 31, 2024. (See Dkt. No. 354.) Defense counsel attached hundreds of pages of medical records to Yeghoyan's opening memorandum, but the memorandum lacked citations to specific pages in the records. (See Dkt. No. 360 at 3-4.) The Government filed a response on February 9. (See Opp. at 1.) Yeghoyan filed reply papers on February 12. (See Dkt. No. 358 [hereinafter “Reply”].)
On February 14, the Court ordered the parties to submit supplemental briefing with respect to specified issues and ordered defense counsel to amend the opening memorandum to insert record citations that support the memorandum's factual contentions. (See generally Dkt. No. 360.) On February 28, the Government filed its supplemental brief. (See Gov't Supp. Br.) The same day, defense counsel filed Yeghoyan's supplemental brief (see Dkt. No. 369 [hereinafter “Def. Supp. Br.”] and an amended version of Yeghoyan's opening memorandum (see Mot. at 3 n.3).
II. LEGAL STANDARD
Yeghoyan brings his Motion under Section 3582(c)(1)(A)(i). (See Mot. at 1.) For compassionate release to be granted under that provision,
As the Second Circuit has explained, “compassionate release is a misnomer. [Section 3582] in fact speaks of sentence reduction. A district court could, for instance, reduce but not eliminate a defendant's prison sentence.” United States v. Garcia, 505 F.Supp.3d 328, 330 (S.D.N.Y. 2020) (quoting United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020)).
• the defendant must comply with an administrative exhaustion requirement,
• the defendant must show extraordinary and compelling reasons that, consistent with Section 1B1.13 of the U.S. Sentencing Guidelines Manual, warrant a sentence reduction,
• the Court must find that the sentencing factors set forth in 18 U.S.C. § 3553(a) are consistent with a lesser sentence than that previously imposed, and
• the Court must find that there is a particular sentence reduction consistent with the sentencing factors set forth in 18 U.S.C. § 3553(a) and warranted by extraordinary and compelling reasons.See United States v. Feliz, No. 16 Cr. 809, 2023 WL 8275897, at *2-4 & n.3 (S.D.N.Y. Nov. 30, 2023); United States v. Rengifo, 569 F.Supp.3d 180, 187 (S.D.N.Y. 2021).
Section 1B1.13 of the U.S. Sentencing Guidelines Manual (“Policy Statement 1B1.13”) governs whether a reason put forward by a defendant for a sentence reduction constitutes an “extraordinary and compelling” reason warranting relief under Section 3582. See Feliz, 2023 WL 8275897, at *4. More specifically, Policy Statement 1B1.13(b)(1) governs whether medical circumstances invoked by a defendant constitute an extraordinary and compelling reason for granting Section 3582 relief.
As relevant here, Policy Statement 1B1.13(b)(1) states that extraordinary and compelling reasons for a sentence reduction exist where the defendant is suffering from “a serious physical or medical condition . . . that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover” or from “a medical condition that requires long-term or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death.” Policy Statement 1B1.13(b)(1)(B)-(C).
Policy Statement 1B1.13 also contains a catch-all provision that allows a court to grant Section 3582 relief if a defendant “presents any other circumstance or combination of circumstances that . . . are similar in gravity” to the types of circumstances - such as terminal illnesses, serious family issues, or BOP abuse - specifically enumerated elsewhere in the Policy Statement. Policy Statement 1B1.13(b)(5). These “other circumstance[s]” can be “considered by themselves or together with” circumstances falling into the specifically enumerated categories. Id.
III. DISCUSSION
Yeghoyan argues that his medical circumstances constitute a sufficiently extraordinary and compelling reason under Policy Statement 1B1.13(b) (1) (B) (i), (b) (1) (C), and (b)(5) for a sentence reduction pursuant to Section 3582. (See Mot. at 19-25; Def. Supp. Br. at 1-3.) He further argues that the sentencing factors set forth in 18 U.S.C. § 3553(a) (the “Sentencing Factors”) also weigh in favor of a reduced sentence. (See Mot. at 25-30.)
In response, the Government argues that Yeghoyan has not shown extraordinary and compelling reasons warranting early release. (See Opp. at 5-6.) The Government also contends that the Sentencing Factors militate against granting Section 3582 relief. (See Id. at 6-7.)
For the reasons below, the Court holds that Yeghoyan has not set forth extraordinary and compelling reasons warranting early release under Policy Statement 1B1.13(b). The Court thus need not decide whether the Sentencing Factors weigh in favor of a sentence reduction.
The Government has not responded to Yeghoyan's argument (see Mot. at 15-16) that he has sufficiently exhausted his administrative remedies; thus, the Government has conceded that point. See United States v. Saladino, 7 F.4th 120, 121 (2d Cir. 2021) (stating that exhaustion requirement “is not a jurisdictional limitation on a court's power to consider an inmate's motion for compassionate release” and that the exhaustion issue “may be waived or forfeited by the government”).
A. POLICY STATEMENT 1B1.13(b)(1)(B)(i)
Policy Statement 1B1.13(b)(1)(B)(i) states that “a serious physical or medical condition . . . that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover” constitutes an extraordinary and compelling reason for a sentence reduction under Section 3582. Yeghoyan argues that his ulcerative colitis qualifies as such a condition.
As an initial matter, there is no doubt that Yeghoyan's ulcerative colitis is a serious medical condition that causes him significant suffering, and the Court understands that it may even be uncurable. The Government acknowledges as much. (See Gov't Supp. Br. at 5 (stating that the Government “does not seek to minimize the pain and hardship that Yeghoyan suffers as a result of his chronic illness”).) The question the Court must address, then, is whether Yeghoyan's condition “substantially diminishes” his ability “to provide self-care within the environment of a correctional facility.” Policy Statement 1B1.13(b)(1)(B).
The Court finds that Yeghoyan's ulcerative colitis, as treated by medical professionals working at or in conjunction with FMC Devens, does not substantially diminish his ability to care for himself. As noted above, in August 2023, a nurse practitioner at FMC Devens observed that Yeghoyan was “sitting, standing[,] walking, talking without any signs of distress, no guarding, no grimacing, no difficulty speaking in long clear full sentences while gesticulating easily with his arms, carrying a book.” (Mot. Ex. D at 139.) The next month, the warden found that Yeghoyan was “independent with [his] activities of daily living.” (Mot. Ex. H at 746.) Further, the day after Yeghoyan's October colonoscopy, a nurse practitioner at FMC Devens noted that his “results show improvement.” (Opp. Ex. A at 40.) And on December 14, 2023, medical staff at the facility cleared Yeghoyan to work in food service without restrictions and did not assess him as needing a lower bunk or additional toilet paper. (See Id. at 261.) Finally, records of Yeghoyan's communications with medical personnel at FMC Devens demonstrate that he is able to advocate for himself quite articulately. (See generally Mot. Ex. E.)
This matter is distinguishable from two cases on which Yeghoyan relies - United States v. Reaves, 668 F.Supp.3d 360 (E.D. Pa. 2023), and United States v. Fernandez, No. 10 Cr. 905 (S.D.N.Y. Aug. 27, 2020), ECF No. 2332. In both cases, unlike here, the Government conceded that the defendant presented extraordinary and compelling reasons warranting a sentence reduction. See Reaves, 668 F.Supp.3d at 362; Order, Fernandez, ECF No. 2332 at 2 n.1. Moreover, in Reaves, the defendant dealt not only with ulcerative colitis but also with “thyroid dysfunction; enlarged prostate; . . . schizophrenia; polythetic right eye and left eye blindness; and Crohn's disease,” and he “often require[d] assistance from other inmates to perform activities of daily living, such as bathing and dressing.” 668 F.Supp.3d at 364. And the decision in Fernandez was issued during the first months of the COVID-19 pandemic, before vaccines were available, and was largely based on the danger that the defendant's ulcerative colitis put him at high risk for severe illness or death from COVID-19. See Order, Fernandez, ECF No. 2332 at 2. By contrast, Yeghoyan's health concerns are not as materially severe or debilitating.
Yeghoyan, on the other hand, is vaccinated against COVID-19. (See Mot. at 12.) Although Yeghoyan's medical issues may increase his risk of becoming seriously ill from COVID-19, his vaccination and his relative youth mitigate that risk, as courts in this District have recognized. See Feliz, 2023 WL 8275897, at *5 & n.5.
Yeghoyan has thus not met his burden of showing extraordinary and compelling reasons for early release under Policy Statement 1B1.13(b)(1)(B)(i).
B. POLICY STATEMENT 1B1.13(b)(1)(C)
Yeghoyan's next argument is that his ulcerative colitis is “a medical condition that requires long-term or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death.” Policy Statement 1B1.13(b)(1)(C). It is clear that Yeghoyan's condition requires long-term and specialized medical care, and the Court credits Braha's warning that a failure to properly treat ulcerative colitis could lead to a serious deterioration in health or death. (See Mot. Ex. B at 16, 21.) The question for the Court is thus whether adequate treatment “is . . . being provided” at FMC Devens. Policy Statement 1B1.13(b)(1)(C). For present purposes, adequate treatment means treatment sufficient to avoid a serious deterioration in health or death - not treatment better than Yeghoyan could or would receive outside the prison system. See United States v. Teman, No. 19 Cr. 696, 2024 WL 262781, at *6 (S.D.N.Y. Jan. 24, 2024) (“[T]he decisive question is not whether [the defendant] would fare better and receive better care if living at home. It is how [his] medical conditions measure against the demanding standards set by the Sentencing Commission.”).
The Court concludes that, at the present time, FMC Devens is providing adequate treatment for Yeghoyan's ulcerative colitis under the standard set forth by Policy Statement 1B1.13(b)(1)(C). In October 2023, Yeghoyan underwent a colonoscopy performed by Chemmanur, who found that his “sigmoid colon, descending colon, splenic flexure, transverse colon, ascending colon and cecum appeared normal” and that the “examined portion of the ileum was normal.” (Mot. Ex. D at 112.) Chemmanur recommended a repeat colonoscopy in six months (see id.), and Yeghoyan is scheduled to undergo that repeat colonoscopy in April or May of this year (see Gov. Supp. Br. Ex. G at 2).
Further, the record shows that Dr. Patricia Ruze (“Ruze”), clinical director at FMC Devens, has reviewed Yeghoyan's medical records and “confirm[ed] that FMC Devens is capable of meeting an adequate standard of care such that [his] medical issues are properly managed by the BOP.” (Gov. Supp. Br. Ex. G at 2.) Ruze writes in a letter dated February 28, 2024 that Yeghoyan “continues to be seen by multiple specialists including internal medicine, gastroenterology, psychiatry, dermatology and ophthalmology” and that his “internal medicine physician is addressing his joint symptoms and would refer out to a sub-specialist, if medically indicated.” (Id.) Additionally, Yeghoyan's medical records show that the FMC Devens staff has hospitalized Yeghoyan both within FMC Devens and outside of the prison when necessary. (See, e.g., Mot. at 10-11.)
The Court is thus persuaded that FMC Devens - which is one of the few BOP facilities equipped to provide a relatively high level of care to inmates, see United States v. Gaffey, No. 18 Cr. 693, 2021 WL 1530053, at *5 (S.D.N.Y. Apr. 19, 2021) - is currently providing treatment for Yeghoyan's ulcerative colitis that is adequate to avoid “serious deterioration in health or death.” Policy Statement 1B1.13(b)(1)(C). In arriving at this result, the Court reaches a conclusion similar to the one reached by another Judge of this District who was presented with a comparable motion for compassionate release in United States v. Cherry, No. 18 Cr. 786, 2021 WL 1222121 (S.D.N.Y. Mar. 31, 2021), aff'd, No. 21-913, 2022 WL 1210663 (2d Cir. Apr. 25, 2022).
In Cherry, the defendant was 60 years old and suffered “from a rare and extreme form of ulcerative colitis.” 2021 WL 1222121, at *2. He was “bedridden on a feeding tube.” Id. The defendant was being held under guard at a hospital in Brooklyn and was waiting to be transferred to FMC Devens. Id., at *1-2. Then-Chief Judge Colleen McMahon did not dispute that the defendant's condition “might very well constitute an ‘extraordinary and compelling' basis for granting compassionate release,” but she concluded, based on “a letter from a member of the medical staff at FMC Devens,” that the “BOP stands ready, willing, and most importantly, able” to care for the defendant. Id., at *2-3. Based on the Sentencing Factors and “because the BOP is capable of caring for [the defendant's] medical needs,” Judge McMahon denied the motion for compassionate release. Id., at *3.
The Court's conclusion in this case is reinforced by a significant consideration: Much of Yeghoyan's Motion focuses on the treatment he received from the BOP before he was transferred to FMC Devens. (See Mot. at 3-10; see also Reply at 2; Def. Supp. Br. at 5.) The Government makes little, if any, effort to defend that treatment, but Policy Statement 1B1.13(b)(1)(C) is written in the present tense, focusing on whether adequate medical care “is not being provided” (emphasis added). As discussed above, the record makes clear that Yeghoyan began to receive better medical treatment after his arrival at FMC Devens. To the extent, if at all, that certain past acts or omissions by BOP officials committed at a different BOP facility rose to the level of a clearly established Eighth Amendment violation, Yeghoyan may have a claim for damages under the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). But where, as here, adequate medical treatment is currently being provided, compassionate release is ordinarily an inappropriate remedy for an injury an inmate suffered because of such acts or omissions. See United States v. Mollica, 640 F.Supp.3d 1209, 1216 (N.D. Ala. 2022) (“[T]hese types of claims are more appropriate in a civil suit alleging deliberate indifference to a serious medical need in violation of the Eighth Amendment and not in a motion for compassionate release in [the defendant's] criminal case.”).
See also Carlson v. Green, 446 U.S. 14 (1980) (extending Bivens to Eighth Amendment context); Walker v. Schult, 717 F.3d 119 (2d Cir. 2013); Mendoza v. Edge, 615 F.Supp.3d 163, 169 (E.D.N.Y. 2022) (stating that in Carlson, the Supreme Court extended Bivens to the context of “an Eighth Amendment claim for failure to provide adequate medical treatment”).
The Court expresses no opinion here about whether a claim under Bivens would have merit in Yeghoyan's case.
Yeghoyan relies heavily on United States v. Reid, No. 2:19 Cr. 20637, 2023 WL 4918264 (E.D. Mich. Aug. 1, 2023), but that case does not control the instant Motion and is also distinguishable. There, the defendant's ulcerative colitis required a surgical intervention to “create a J-pouch, which is an internal pouch doctors fashioned out of his intestine to hold his excrement.” 2023 WL 4918264, at *1. The J-pouch was highly susceptible to a condition called “pouchitis” that, if uncontrolled, can lead to a colostomy. See Id. The defendant was demonstrating symptoms consistent with pouchitis, including weight loss, yet the defendant had not been seen by a gastrointestinal specialist. See Id. The court, observing based on BOP medical records that the defendant had “received little, if any, medical treatment related to his ulcerative colitis and pouchitis,” concluded that the defendant's medical issues constituted extraordinary and compelling reasons for compassionate release. Id., at *2. Unlike the defendant in Reid, Yeghoyan is receiving gastroenterological care and does not present medical complications or risks analogous to those arising from the creation of a J-pouch.
Yeghoyan's opening memorandum in support of the Motion contended that Yeghoyan “has lost over 50 pounds” since his incarceration. (See Dkt. No. 354 at 1.) The only support for this contention among the hundreds of pages of medical records attached to the Motion appears to be a lone statement by Chemmanur on August 15, 2023 that Yeghoyan had “lost 50 pounds.” (See Mot. Ex. D at 161.) The Court is persuaded by the Government's argument (see Gov't Supp. Br. at 3) that Chemmanur's statement is inaccurate in light of the rest of the medical records. The records show that Yeghoyan weighed 208 pounds on November 7, 2022. (See Mot. Ex. D at 317.) From February 2023 to July 2023, his weight fluctuated between 182 and 198 pounds. (See Opp. Ex. A at 231-32.) After Yeghoyan arrived at FMC Devens, his weight increased to 200 pounds and then fluctuated between 200 and 210 pounds from August 2023 to January 2024. (See Id. at 231; see also Id. at 35 (stating that Yeghoyan “has been steady at 200lb since arrival” at FMC Devens).)
In light of the Court's finding in this case that FMC Devens is providing Yeghoyan adequate medical care for the purposes of Policy Statement 1B1.13, the letters submitted by Braha are also an insufficient basis upon which to grant compassionate release. Of these letters, the only one written after Yeghoyan was transferred to FMC Devens is a letter dated October 24, 2023. (See Mot. Ex. B at 21-22.) Braha ends that letter with two concerns. First, he urges that Yeghoyan's treatment team cease relying on prednisone for long periods of time. (See Id. at 21.) Second, he urges that Yeghoyan be seen by a gastroenterologist. (See Id.) Both of these concerns have been addressed. Yeghoyan has stopped taking prednisone, and he underwent a colonoscopy performed by a gastroenterologist on the same day Braha wrote his letter. (See Gov. Supp. Br. Ex. G at 2; Mot. Ex. D at 111.) Further, he is scheduled for a follow-up colonoscopy in April or May 2024. (See Gov. Supp. Br. Ex. G at 2.)
In sum, Yeghoyan has not established under Policy Statement 1B1.13(b)(1)(C) that his ulcerative colitis constitutes an extraordinary and compelling reason warranting a sentence reduction pursuant to Section 3582.
C. POLICY STATEMENT 1B1.13(b)(5)
Yeghoyan's final argument is that he has established extraordinary and compelling reasons for Section 3582 relief under the catch-all provision in Policy Statement 1B1.13(b) (5) . (See Def. Supp. Br. at 2-3.) That provision states that a sentence reduction might be appropriate if the defendant puts forward reasons for early release that are “similar in gravity” to the types of circumstances - such as terminal illnesses, serious family issues, or BOP abuse - specifically enumerated elsewhere in the Policy Statement. Policy Statement 1B1.13(b)(5). Reasons advanced by a defendant under the catch-all provision can be “considered by themselves or together with” circumstances falling into the Policy Statement's specifically enumerated categories. Id.
Yegohyan argues that - together with his ulcerative colitis - his joint pain, his rash, and his mental health issues constitute extraordinary and compelling reasons for compassionate release under the catch-all provision. He claims that he “has been denied access to a rheumatologist” and “has been denied access to a dermatologist” in “contravention of the medical directives of Dr. Chemmanur.” (Def. Supp. Br. at 5.)
The Court is not persuaded. In December 2023, Chemmanur did advise that Yeghoyan see such doctors. (See Opp. Ex. A at 413.) Ruze's February 2024 letter indicates, however, that Yeghoyan is now receiving psychiatric and dermatological treatment and that his “internal medicine physician is addressing his joint symptoms and would refer out to a subspecialist, if medically indicated.” (Gov. Supp. Br. Ex. G at 2.)
Finally, Yeghoyan appears to argue, at least by implication, that the BOP's pattern of behavior is itself, perhaps when considered in conjunction with Yeghoyan's health issues, an extraordinary and compelling reason warranting early release. The theory of that argument seems to be that certain of Yeghoyan's health issues, such as his joint pain and his rash, are themselves the result of the BOP's failure to adequately treat his ulcerative colitis and that Yeghoyan narrowly avoided other preventable health issues by sheer luck in light of the BOP's placement of Yeghoyan “in close proximity to COVID-positive patients at FMC Devens after having just returned from the hospital and while still in medical isolation.” (Def. Supp. Br. at 5.)
The Court declines to grant Section 3582 relief on that basis. As explained above, the record shows that Yeghoyan's health and the quality of his treatment have improved since he was reassigned to FMC Devens, and any claims arising from BOP acts or omissions that occurred before that reassignment should be brought, if anywhere, in a civil suit for damages.
Moreover, the possibility that certain of an inmate's medical issues could have been prevented had he received the medical treatment of his choice outside prison has been held not to constitute an extraordinary and compelling reason warranting a sentence reduction. See Teman, 2024 WL 262781, at *6. As a Judge of this District put it in Teman,
The Court does not minimize [the defendant's] preexisting conditions, or the extent to which he has found incarceration . . . arduous and unhappy. The Court also accepts that the incidents of federal incarceration . . . may have been responsible for various of the symptoms [the defendant] has reported . . . .
In the end, however, the decisive question is not whether [the defendant] would fare better and receive better care if living at home. . . . [The defendant's] voluminous BOP medical records . . . support the BOP's determination that . . . the BOP is capable of addressing his medical needs.Id.
The Court thus concludes that Yeghoyan has not presented an extraordinary and compelling reason warranting early release under Policy Statement 1B1.13. Therefore, Yeghoyan's motion for a sentence reduction pursuant to Section 3582 is denied. Further echoing Teman, however, the Court “expects the BOP's medical staff to continue to attend, with dispatch, to [Yeghoyan's] medical issues when reported.” 2024 WL 262781, at *9.
By reaching this conclusion, the Court does not mean to imply that it is persuaded by the Government's argument (see Gov't Supp. Br. at 5) that Yeghoyan's immigration status is relevant to whether he has shown an extraordinary and compelling reason warranting early release. The Government contends that Yeghoyan is expected to be deported to Armenia upon release from prison and that he “has not shown that he would receive better treatment in [U.S. Immigration and Customs Enforcement] custody or in Armenia than he is currently receiving at FMC Devens.” (Id.) The Government cites no authority supporting the proposition that a defendant in Yeghoyan's circumstances must make such a showing, and one of the cases the Government cites actually undermines that proposition. See Teman, 2024 WL 262781, at *6 (stating that “the decisive question is not whether [the defendant] would fare better and receive better care” outside prison). Further, nothing in the text of Section 3582 or Policy Statement 1B1.13 supports the Government's argument.
IV. ORDER
For the foregoing reasons, it is hereby
ORDERED that the motion (see Dkt. Nos. 354, 368) filed by defendant Davit Yeghoyan for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) is DENIED; and it is further
ORDERED that the Clerk of Court is respectfully directed to restrict the viewing levels applicable to this Decision and Order (the “D&O” or “Order”) to only the parties, their counsel, and the Court. If any party wishes to propose redactions to the D&O, the parties shall confer and jointly submit such proposed redactions, along with legal authority requiring such redactions, to the Court under seal within seven (7) days of the date of this Order. After the expiration of such seven-day period and after reviewing any proposed redactions received from the parties and any legal authority provided in support thereof, the Court will direct that the Clerk of Court publicly docket a redacted or unredacted version of the D&O, as the case may be.
SO ORDERED.