Opinion
Civil Action 4:20-CV-2318
03-31-2021
MAMOUN AHMED, Petitioner v. WARDEN CLAIR DOLL, [1] Respondent
BRANN, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge
I. INTRODUCTION
Petitioner is a civil immigration detainee housed in York County Prison. He asks for release from custody on three grounds related to the COVID-19 pandemic and the length of his detention. None of these reasons for release, individually or together, justify relief. This petition for habeas corpus should be DISMISSED WITHOUT PREJUDICE to file again if circumstances change in a legally significant way.
II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
On December 10, 2020, Mamoun Ahmed (“Petitioner”) filed a Petition under 28 U.S.C. § 2241 seeking immediate release from the custody of United States Immigration and Customs Enforcement (“ICE”) due to the risk of severe illness posed by the COVID-19 pandemic in the prison setting. (Doc. 1). With his Petition, Petitioner filed a Motion to Expedite the case. (Doc. 2). On December 29, 2020, Petitioner paid the filing fee. On December 30, 2020, I issued a Show Cause Order (Doc. 6), setting forth an expedited briefing schedule. On January 8, 2021, Respondent filed a Motion for Extension of Time (Doc. 8) to respond to the Show Cause Order, which I granted (Doc. 9). On January 19, 2021, Respondent filed a Response (Doc. 10). Petitioner did not file a reply to Respondent's response, and his time to do so has passed. (See Doc. 6); see also Rule 5(e), 28 U.S.C. foll. § 2254.
In his Petition, Petitioner provides an overview of the events that have occurred since COVID-19 arrived in the United States and the government's attempt to control the virus's spread-specifically at York County Prison. Petitioner alleges that he “is 43 years old, Native and Citizen of Sudan. Who has been in ICE custody for more than 11-Months. He is Suffering from Diabetes and takes medication for it and also He takes medication For COVID-19 as he tested Positive.” (Doc. 1, p. 7) (emphasis in original). Petitioner alleges he is at imminent risk if exposed to COVID-19, and York County Prison cannot adequately address that risk. Id. at p. 10, ¶ 22(ix-xi). He asserts that “the only course of action that will provide Petitioner with reasonable safety” is “to release Petitioner to his loving family and supportive community who can provide a safe haven for us during this pandemic.” Id.
III. LEGAL STANDARD
Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief only if he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). When a petitioner seeks immediate release from custody, the “sole federal remedy” lies in habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Because Petitioner is in federal custody and seeks release, Section 2241 is the appropriate statute under which he may seek habeas relief.
IV. DISCUSSION
I address whether the length of Petitioner's detention constitutes a due process violation, whether the conditions of his confinement constitute unconstitutional punishment, and whether Respondent has been deliberately indifferent to the risks posed by the ongoing COVID-19 pandemic.
A. DUE PROCESS
Petitioner alleges in his Petition that he “has been in ICE custody for more than 11 months is Pro-longed already [sic] and need to be taken into Consideration.” (Doc. 1, ¶ 21). Respondent argues that Petitioner has failed to allege sufficient facts to raise a prolonged-detention claim. (Doc. 10, pp. 34-35). However, because Petitioner appears to allege that his then-eleven (11)-month detention is prolonged, I construe the Petition as raising a due-process challenge to the length of Petitioner's detention without a bond hearing.
1. Petitioner's Immigration History
Petitioner is a native and citizen of Sudan. (Doc. 1, p. 7, ¶ 22). He has been in ICE custody since December 12, 2019.
Petitioner entered the United State on approximately November 1, 1997, without being admitted or paroled. (See Doc. 10-1, Ex. 1). He has been subject to a final order of removal since November 13, 2007, see id. at Ex. 3, but Respondent states he was released on an order of supervision in 2008. (Doc. 10, p. 8). On March 4, 2019, Petitioner was sentenced to eighteen (18) months' incarceration for Unlawful Possession of a Firearm. See United States v. Ahmed, No. 2:18-CR-00144 (M.D. Fl. 2019). He was transferred to Federal Correctional Institution Allenwood on May 16, 2019. See id. at ECF No. 49. Petitioner was released from Bureau of Prisons custody into ICE custody on December 12, 2019. See Bureau of Prisons, Find an Inmate, https://www.bop.gov/inmateloc/.
On October 5, 2020, ICE attempted to remove Petitioner to Sudan on a commercial flight. (Doc. 10-1, Ex. 4). Before departing York County Prison, Petitioner refused to sign the Warrant of Removal/Deportation and advised ICE officers that he did not intend to comply with the removal order. Id. ICE issued a Failure to Comply notice. Id. Respondent states that ICE informed him on December 31, 2020 that Petitioner was scheduled to be removed on a charter flight on January 14, 2021. (Doc. 10, p. 9). However, for reasons unknown to local ICE counsel at the time of Respondent's Response, Petitioner was removed from the flight. Id. Petitioner therefore remains detained.
2. Statutory Basis for Petitioner's Detention
Petitioner, an alien as defined by 8 U.S.C. § 1101(a)(3), is detained pursuant to 8 U.S.C. § 1231(a). 8 U.S.C. § 1231 governs the detention, release, and removal of aliens who have been ordered removed from the United States. Under Section 1231, following an order of removal, the Attorney General is required to remove an alien within a ninety (90)-day “removal period.” 8 U.S.C. § 1231(a)(1)(A). The removal period begins the latest of the following: (i) the date the order of removal becomes administratively final; (ii) if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order; or (iii) if the alien is detained or confined (except under the removal process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(B). After the ninety (90)-day removal period, detention is no longer mandatory. 8 U.S.C. § 1231(a)(3). However, 8 U.S.C. § 1231(a)(6) permits continued detention “beyond the removal period” for certain categories of aliens, such as Petitioner.
In addition, “[t]he removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien . . . acts to prevent the alien's removal subject to an order of removal.” 8 U.S.C. § 1231(a)(1)(C).
3. Due Process Under 8 U.S.C. § 1231(a)(6)
In Zadvydas, the Supreme Court recognized six months as a “presumptively reasonable period” of post-final-order detention under Section 1231(a)(6). Zadvydas v. Davis, 533 U.S. 678, 688-89, 701 (2001). “After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.” Id.
In Guerrero-Sanchez, the Third Circuit further addressed due process concerns when an alien is detained under Section 1231(a)(6). Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 220 (3d Cir. 2018). The Court concluded that concluded that “an alien detained under § 1231(a)(6) is generally entitled to a bond hearing after six months (i.e., 180 days) of custody.” Id. at 226. The alien is entitled to release “unless the government establishes [by clear and convincing evidence] that the alien poses a risk of flight or a danger to the community.” Id. at 224 & n.12. However, if that six (6)-month period has passed “but the alien's release or removal is imminent, ” then no bond hearing is required. Id. at 226 n.15 (quoting Diouf v. Napolitano, 634 F.3d 1081, 1092 n.13 (9th Cir. 2011)).
Here, Petitioner's detention, which began on December 12, 2019, has extended beyond the “presumptively reasonable” six-month post-final-order period set forth in Zadvydas and Guerrero-Sanchez. Therefore, under Zadvydas, if Page 6 of Petitioner provides “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, ” then “the Government must respond with evidence sufficient to rebut that showing.” 533 U.S. at 701. Under Guerrero-Sanchez, Petitioner is entitled to a bond hearing unless his removal is imminent. 905 F.3d at 226 n.15.
The Court agrees with Respondent that Petitioner is not entitled to relief under to Zadvydas because he has not met his burden of “provid[ing] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” See Zadvydas, 533 U.S. at 701; see also (Doc. 10, p. 36).Conclusory allegations or a lack of evidence on the likelihood of continued detention will not sustain a Zadvydas claim. See, e.g., Umarbaev v. Lowe, 453 F.Supp.3d 698, 700 (M.D. Pa. 2020) (“Without any facts or evidence beyond conclusory allegations to support his Zadvydas claim, the Court will not grant relief on this ground.”). In addition to Petitioner providing no reason that he is unlikely to be removed in the reasonably foreseeable future, ICE in fact has taken recent steps to remove Petitioner, at least one of which Petitioner has not complied with. Petitioner is not entitled to relief under Zadvydas at this time.
Respondent does not argue that the removal period was suspended under 8 U.S.C. § 1231(a)(1)(C) due to Petitioner taking actions to prevent his removal.
Under Guerrero-Sanchez, Petitioner is entitled to a bond hearing if his removal is not “imminent.” 905 F.3d at 226 n.15 (quotation omitted). Respondent asserts that “ICE anticipates [Petitioner's] removal will be imminent” because Sudan has issued Petitioner's travel document, ICE has attempted to remove Petitioner twice in the last three months, and ICE has been successfully removing people to Sudan in recent years. (Doc. 10, p. 37). Petitioner refused to cooperate with ICE's first removal attempt, and it is not known why Petitioner was taken off of his second scheduled removal flight. Nonetheless, Petitioner's removal appears to be imminent for the reasons above. See id. at 226 n.15.
In addition, the record shows that Petitioner would have been removed as early as October 2020, but for his refusal to comply with the removal order. (See Doc. 10-1, Ex. 4). The Third Circuit has not addressed the effect of a detainee's failure to cooperate with removal on a Guerrero-Sanchez due-process analysis. In analyzing a claim under Zadvydas, the Third Circuit held in a non-precedential opinion that continued detention is permissible if a detainee refuses to cooperate in obtaining the travel documents necessary for removal. See U.S. ex rel. Kovalev v. Ashcroft, 71 F. App'x. 919, 924 (3d Cir. 2003). Similarly, the Ninth Circuit has reasoned persuasively that a “detainee cannot convincingly argue that there is no significant likelihood of removal in the reasonably foreseeable future if the detainee controls the clock.” Pelich v. I.N.S., 329 F.3d 1057, 1060 (9th Cir. 2003). District courts in this Circuit have concluded the same under Zadvydas. See Francis S. M. v. Decker, No. CV 19-8053(MCA), 2020 WL 1956053, at *4 (D.N.J. Apr. 23, 2020) (concluding detainee previously provided Guerrero-Sanchez hearing could not meet Zadvydas burden due to failing to cooperate with removal); Faustov v. Napolitano, No. 1:13-CV-1018, 2013 WL 3474766, at *4 (M.D. Pa. July 10, 2013) (“[D]elays attributable to the recalcitrance of the immigration detainee, and his refusal to cooperate with immigration officials, are not to be considered by the courts in making these determinations regarding whether a detainee has experienced excessive delays in deportation.”); Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 427-28 (M.D. Pa. 2004) (collecting cases).
Although Petitioner's detention exceeded six (6) months prior to his noncooperation with ICE's removal efforts in October 2020, his removal at this point is imminent, and his thwarting of that removal attempt further counsels against a finding that his continued detention is unreasonable. Accordingly, Petitioner is not entitled to a bond hearing under Guerrero-Sanchez.
Petitioner, however, remains free to file a new Section 2241 petition challenging his continued detention, should there be no progress on his removal or if events indicate that he will not be removed in the reasonably foreseeable future. See Zadvydas, 533 U.S. at 701 (“[F]or detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the ‘reasonably foreseeable future' conversely would have to shrink.”).
B. AVAILABILITY OF HABEAS RELIEF FOR CLAIMS BASED ON CONDITIONS OF CONFINEMENT
Petitioner challenges the conditions of his confinement. The Third Circuit has recognized the viability of a conditions-of-confinement claim through a Section 2241 petition. Hope v. Warden York Cnty. Prison, 972 F.3d 310, 324 (3d Cir. 2020). In Hope, the Third Circuit held that immigration detainees' constitutional challenge to their conditions of confinement, seeking release from custody, is “a matter properly challenged by petition for the writ.” Id. (emphasis added). The Hope petitioners varied in age from twenty-eight (28) to sixty-nine (69), with only one older than sixty-five (65), were detained for various reasons, and had “divergent health conditions.” Id. at 318. The Third Circuit explained that, under the “extraordinary circumstances” presented by the COVID-19 pandemic, the petitioners' “§ 2241 claim seeking release on the basis that unconstitutional conditions require it is not improper.” Id. at 324. It noted, “We do not address at this time whether a § 2241 claim may be asserted in less serious circumstances.” Id. at 325 n.5. The Third Circuit did not analyze petitioners' health conditions or other individual circumstances in concluding that their claim was cognizable in habeas. See id. at 323-26. Accordingly, I conclude Petitioner may pursue his conditions-of-confinement claim through a petition for a writ of habeas corpus under Section 2241.
C. PETITIONER'S CONDITIONS OF CONFINEMENT
Petitioner argues that his detention constitutes unconstitutional punishment He states,
The U.S. Constitution prohibits pretrial and civil detainees from being detained in punitive conditions of confinement because the purpose of such detention is not punitive. Darnell v. Pineiro, 849 f .3d 17. 29 (2d Cir. 2017). As a result, these detainees, including immigrant detainees, “may not be punished in any manner-neither cruelly and unusually or otherwise.” Id. (holding that protections for pretrial detainees, who may not be punished at all, are broader than those for convicted prisoners, for whom the Eighth Amendment provides protection against cruel and unusual punishment). E.D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir 2019).(Doc. 1, ¶ 58) (typographical errors in original).
In considering Petitioner's claim, I first review the legal standard for a conditions-of-confinement claim. Second, I review the detention conditions at York County Prison. Third, I review Petitioner's medical conditions in relation to the risk of complications from contracting COVID-19.
1. Legal Standard for Conditions-of-Confinement Claims
Under the Due Process Clause of the Fifth Amendment, detainees may not be punished before they are adjudicated guilty. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Therefore, in evaluating the constitutionality of the conditions of confinement of a detainee who is not adjudicated guilty, “the proper inquiry is whether those conditions amount to punishment of the detainee.” Id.
In determining whether conditions of confinement amount to punishment, the Supreme Court has stated,
A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. See Flemming v. Nestor, supra, 363 U.S.__, at 613-617, 80 S.Ct., at 1374-1376. Absent a showing of an expressed intent to punish on the part of the detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Kennedy v. Mendoza-Martinez, 372 U.S.__, at 168-169, 83 S.Ct.__, at 567-568; see Flemming v. Nestor, supra, 363 U.S., at 617, 80 S.Ct., at 1376. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate government objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal -if it is arbitrary or purposeless - a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.Bell, 441 U.S. at 538-39. The Supreme Court also noted in reaching this conclusion that considerations such as maintaining security and order are “peculiarly within the province and professional expertise of correctional officials” and that courts should defer to their expert judgment. Id. at 540 n.23.
The Third Circuit has articulated the Bell v. Wolfish standard as a two-part test: “[W]e must ask, first, whether any legitimate purposes are served by these conditions, and second, whether these conditions are rationally related to these purposes.” Union County Jail Inmates v. Di Buono, 713 F.2d 984, 992 (3d Cir. 1983). In Hope, the Third Circuit applied this standard to determine if conditions of confinement related to the COVID-19 pandemic constitute unconstitutional punishment. 972 F.3d at 326. It noted that “[i]n assessing whether conditions and restrictions are excessive given their purposes, the courts must acknowledge that practical considerations of detention justify limitations on ‘many privileges and rights, '” and “[t]hough not a convicted prisoner, a detainee ‘simply does not possess the full range of freedoms of an unincarcerated individual.'” Id. (citations omitted).
The government has several legitimate purposes in confining ICE detainees, including “(1) ensuring [detainees'] appearances at removal proceedings; (2) protecting the public; and (3) managing the detention facilities.” Id. at 327. The Third Circuit in Hope concluded that “[c]onsidering all the responsive measures specifically implemented [by York County Prison and Pike County Correctional Facility] to detect and to prevent spread of the virus, the challenges of facility administration during an unprecedented situation, and the purposes served by detention, ” the petitioners were not entitled to a preliminary injunction on their conditions-of-confinement claim. Id. at 329.
2. Conditions at York County Prison
Here, Petitioner argues that “ICE's response to COVID-19 is alarmingly inadequate.” (Doc. 1 at p. 8, ¶ 22(iii)). He alleges that detainees are kept in close quarters and that an increase in COVID-19 cases at York County Prison shows that the facility's safety measures are inadequate.
Social Distancing and Isolation of COVID-19-Positive Detainees
Petitioner argues, “Respondents' Facilities are plainly not equipped to protect
Petitioners from a potentially fatal exposure to a second stage of COVID-19 which is why all plaintiffs in this Petition have contracted this Virus due to ineffective measures.” Id. at p. 6, ¶ 22. He highlights the impossibility of maintaining social distancing:
In complete contradiction of the quarantine, isolation, and social distancing protocols for COVID-19, ICE imprisons immigrants, in close quarters in facilities that are notorious for their egregiously inadequate healthcare systems, as documented by the Department of Homeland Security's (“DHS”) own Office of Inspector General (“OIG”) and multiple other organizations. ....
It will be nearly impossible if not completely impossible to contain COVID-19 now that it has reached the York county Prison because of the close proximity between people, and currently more than 80% of the prison is in Quarantine. Rules and regulations that bar some basic disease prevention measures, and restrictions that prevent people from taking steps to protect themselves from infection, such as accessing hand sanitizer or gloves.
[D]etainees at York County Prison are confined in close quarters, forced to share bathrooms, sleeping and eating quarters, touching common surfaces without being able to clean them first, and limited in their access to basic cleaning supplies and protection gear. Moreover, even were Respondents to contend that they follow CDC guidance at York County Prison-which they do not-asymptomatic of the virus means that monitoring fever of staff or detainees is inadequate for identifying all who may be infected and preventing transmission.(Doc. 1, ¶¶ 22(ii), 30, 51).
York County Prison's Actions to Reduce the Spread of COVID-19
Respondent provided support as to the steps York County Prison has taken to reduce detainees' risk of contracting COVID-19. (See Doc. 10-1, Ex. 13, Stephen Ritchey Decl.). York County Prison has the capacity to house 2, 245 inmates. Id. ¶ 7. As of January 19, 2021, it housed 1, 311 combined male and female inmates and detainees. Id. The facility is following guidance from the Centers for Disease Control and Prevention (“CDC”), including by isolating any detainees who test positive. Id. at ¶¶ 9, 10, 14. New intakes are tested for COVID-19 antibodies and, if negative, tested by nasal swab for COVID-19. Id. at ¶ 12. All new asymptomatic detainees are cohorted with other new arrivals and observed for fourteen (14) days, with daily temperature and symptom checks. Id. at ¶¶ 12, 15. New detainees who present symptoms consistent with COVID-19 are placed in isolation. Id. at ¶ 13. York County Prison has also been quarantining asymptomatic detainees with a known exposure to COVID-19 for a minimum of fourteen (14) days, and usually up to twenty-one (21) days. Id. at ¶ 16.
On September 2, 2020, the prison updated its protocols to require all staff and personnel entering the facility to wear an N95 mask. Id. at ¶ 24(a). York County Prison has also increased sanitation frequency and cleans all high-traffic areas at least four times daily. Id. ¶ 19. While only staff, not detainees, are given access to of hand sanitizer, the prison issues one bar of soap per detainee and will immediately issue a replacement when that bar is exhausted. Id. ICE also “reviews its detained population of people who are ‘at risk for severe illness,' from COVID-19 as identified by the CDC and/or the subclasses certified in Fraihat v. ICE, 445 F.Supp.3d 709 (C.C. Cal. Apr. 20, 2020), to determine if detention remains appropriate.” Id. at ¶ 27-28.
Increase in COVID-19 Cases at York County Prison
Despite these protective measures, Petitioner alleges an outbreak of COVID-19 cases at York County Prison, “where 390 Inmates/Detainees have tested Positive for COVID-19 until 15 October, 2020.” (Doc. 1, ¶ 22). He details an increase in COVID-19 cases at York County Prison in 2020:
[F]om 5th to 9th September, 2020 YCP has 32 Positive COVID-19 cases, from 9th to 14th September, 2020 YCP has 93 Positive COVID-19 cases, from 15th to 30th September, 2020 YCP has 50+ Positive COVID-19 cases And also more than 20+ employees has also tested Positive ....Id.
Respondent provided a declaration describing the following COVID-19 case numbers as of January 19, 2021:
a. Since March 2020, at the York County Prison there have been 248 confirmed cases of COVID-19 among ICE detainees. Six of those 248 tested positive prior to entering ICE custody at the York County Prison. As of the morning of January 19, 2021, there were 29 ICE detainees who tested positive for COVID-19 housed in isolation under medical observation consistent with CDC guidelines. 219 ICE detainees who previously tested positive have been cleared and are no longer subject to isolation/quarantine requirements. Additionally, there have been 645 confirmed cases among county inmates, 556 of these inmates have been cleared and are no longer subject to isolation/quarantine requirements. Those inmates in isolation are under medical observation consistent with CDC guidelines.
b. Within the York County Prison there have been no hospitalizations among ICE detainees or deaths among ICE detainees or county inmates.(Doc. 10-1, Ex. 8, ¶ 24).
The number of active COVID-19 cases among ICE detainees as of January 19, 2021-twenty-nine (29)-is higher than it was at the time of several earlier COVID-19 cases that came before this Court. See, e.g., Mariazza-Chavez v. Doll, No. 4:20-CV-1651, 2020 WL 7755438, at *7 (M.D. Pa. Dec. 1, 2020) (noting, as of October 1, 2020, eighteen (18) active COVID-19 cases among ICE detainees at York County Prison), report and recommendation adopted, Mariazza-Chavez, v. Doll, No. 4:20-CV-01651, 2020 WL 7711353 (M.D. Pa. Dec. 29, 2020). In addition, the declaration shows that total cases (active and recovered) among ICE detainees and county inmates each roughly doubled in just three (3) and a half months, from October 1, 2020 to January 19, 2021: from 100 to 248 cases among ICE detainees, and from 368 to 645 cases among county inmates. Compare Doc. 10-1, Ex. 8, ¶ 24 (noting 248 cases among ICE detainees and 645 among county inmates as of January 19, 2021), with Mariazza-Chavez, 2020 WL 7755438, at *7 (noting 100 cases among ICE detainees and 368 among county inmates as of October 1, 2020). This second increase in cases is troubling.
In Thakker, an increase in COVID-19 cases at PCCF led Judge Jones to grant a preliminary injunction ordering the continued release of three high-health-risk ICE detainees at PCCF, but not of any detainees at York County Prison or Clinton County Correctional Facility. Thakker v. Doll, 456 F.Supp.3d 647, 658, 665 (M.D. Pa. 2020). He stated,
Alarmingly, PCCF now reports 40 confirmed cases of COVID-19 amongst PCCF inmates and staff. It appears 12 of those cases are currently quarantined. (Id.). Two inmates have died. (Id.). These numbers show that there has been a sustained outbreak at PCCF, and that it has not yet been controlled. We find that detainees are still effectively unable to social distance within PCCF, and therefore find this Facility to be distinct from [York County Prison] and [Clinton County Correctional Facility].
.... Petitioners at PCCF have shown that, despite their best efforts, they cannot practice these effective preventative measures.... Considering the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined, unhygienic spaces. Indeed, we cannot see the rational basis of such a risk and find that the legitimate government interests of reinstated detention are thus negated.Id. at 658 (footnotes omitted). The three detainees' medical conditions included, respectively, (1) high cholesterol and blood pressure, kidneys that are not fully functioning, and a heart stent; (2) Type II diabetes, blood clots, a heart stent, and being immunocompromised due to a kidney transplant; and (3) diabetes, high blood pressure, high cholesterol, and leukemia. Id. at *9, 11.
3. Petitioner's Medical Conditions
Petitioner alleges that he is forty-three (43) years old, that he suffers from diabetes, that he has tested positive for COVID-19, and that he takes medication for both conditions. (Doc. 1, p. 7).
Petitioner's medical records indicate that he has a history of hyperlipidemiaand that he is prescribed medications for diabetes. Id. at p. 3. Hyperlipidemia is not listed by the CDC as a COVID-19 risk factor, and Petitioner does not argue that it is. See COVID 2019, People with Certain Medical Conditions, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last updated Mar. 29, 2021). Diabetes, however, may be a risk factor. According to the CDC, “Having either type 1 or type 2 diabetes can make you more likely to get severely ill from COVID-19.” See id. (emphasis in original).
The Society for Vascular Surgery describes hyperlipidemia as an “umbrella term” for conditions involving elevated levels of lipids (fats, cholesterol, and triglycerides) in the blood. Gregory Moneta, Hyperlipidemia, SOCIETY FOR VASCULAR SURGERY (last accessed Mar. 29, 2021), https://vascular.org/patients/vascular-conditions/hyperlipidemia. Under Rule 201(b) of the Federal Rules of Evidence, the Court takes judicial notice of this background information.
That Petitioner has a medical condition that may place him in a higher risk category for complications from COVID-19 “does not ipso facto dictate relief from this Court.” Umarbaev v. Lowe, 453 F.Supp.3d 698, 710 (M.D. Pa. 2020) (emphasis in original). Moreover, Petitioner's medical records as of December 31, 2020 state he has “recovered” from COVID-19. (See Doc. 10-1, Ex. 5, p. 1). Petitioner notes in his Petition that he receives medication for his diabetes, and his medical records suggest he has regular access to medical care. (See Docs. 1; 10-1, Ex. 5); see also United States v. Moldover, No. CR 14-637, 2020 WL 6731111, at *9-10 (E.D. Pa. Nov. 13, 2020) (concluding, in compassionate-release case, that defendant's controlled “asthma, hypertension, and purported obesity” as well as “depression, anxiety disorder, hyperlipidemia, and nerve damage-do not present extraordinary and compelling reasons justifying his release”).
While I am sympathetic to Petitioner's report that he tested positive for COVID-19, his medical records indicate he has recovered. Petitioner further states that he received medication as a result of testing positive.
Based on Petitioner's medical conditions and treatment, he has not shown that his conditions of confinement are excessive given the government's legitimate purposes in his detention and the practical considerations of that detention. See Hope, 972 F.3d at 326. Petitioner has not alleged that he is not receiving any needed medical treatment or that he is confined with individuals who are positive for Page 20 of COVID-19, and Respondent provided support showing that York County Prison is isolating such inmates or detainees. Therefore, on this record, Petitioner has not shown that his confinement constitutes unconstitutional punishment, and he is not entitled to relief on that basis.
D. DELIBERATE INDIFFERENCE
In addition to Petitioner's conditions-of-confinement claim, he argues that Respondent is deliberately indifferent to the risks posed by the ongoing COVID-19 pandemic. Petitioner argues that “ICE is aware of the acute and imminent threat COVID-19 poses to detained populations, ” (Doc. 1, p. 8, ¶ 22(ii), and that “ICE has routinely failed to remedy inhumane conditions” (Doc. 1, p. 17, ¶ 50).
In making this argument, Petitioner cites to an apparent 2019 Inspector General report. (Doc. 1, ¶¶ 49-50). According to the Petition, the report found that “ICE ‘does not adequately hold detention facility contractors accountable for not meeting performance standards.'” Id. at ¶ 49.
The Eighth Amendment prohibits prison officials from acting with “‘deliberate indifference' to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). This standard “is more exacting” than a due-process claim based on conditions of confinement. See Thakker, 456 F.Supp. 3 at 658 & n.8 (concluding petitioners likely to succeed on merits of conditions-of-confinement claim, but unlikely to succeed on Eighth Amendment claim); see also Desmond K. B. v. Decker, No. CV 20-6884 (KM), --- F.Supp. ---, 2020 WL 4530003, at *8 (D.N.J. Aug. 6, 2020) (concluding petitioner demonstrated likelihood of success on conditions-of-confinement claim, but not deliberate-indifference claim).
The Supreme Court has defined deliberate indifference as existing only if a “[government] official knows of and disregards an excessive risk to inmate health or safety; the official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837 (emphasis added). A detainee must show that a detaining official knew, or should have known, of the claimed risk and consciously disregarded it. See Woloszyn v. County of Lawrence, 396 F.3d 314, 320-21 (3d Cir. 2005). While a detainee can establish deliberate indifference “even if detention officials afford some care to the detainee, ” a “‘mere disagreement' as to the response to the risk to [a detainee] in light of their medical condition will not support constitutional infringement.” Hope, 972 F.3d at 329 (quoting Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)). Likewise, “a failure to eliminate all risk” does not establish deliberate indifference. Id. at 330.
Here, Petitioner has not shown that York County Prison acted with deliberate indifference to the risks posed by COVID-19. While the prison has seen an increase in cases, it has also implemented changes in its sanitation practices since the start of the pandemic, follows CDC guidelines on the quarantine and isolation of suspected and confirmed cases of COVID-19, and is identifying and assessing detainees at high of risk of complications from COVID-19. Petitioner does not allege any current COVID-19 symptoms, lack of treatment for COVID-19, or exposure to individuals who presently have COVID-19. (See Doc. 1). The record further shows that he recovered from COVID-19 shortly after filing his Petition. (See Doc. 10-1, Ex. 5).
As Judge Connor concluded in Verma, “[t]here is no perfect solution to preventing the spread of COVID-19 in detention facilities, but York County Prison officials have taken reasonable steps to limit the spread throughout its facility.” 2020 WL 1814149, at *6. Likewise, in this case, the record does not show actions that rise to the level of deliberate indifference, based on the steps York County Prison has taken to minimize the risk of COVID-19 to ICE detainees. (See Doc. 10-1, Ex. 8). I cannot conclude on the record before me that Petitioner has demonstrated conscious disregard by prison officials to the risks posed by COVID-19. Respondent's conduct at this time does not constitute deliberate indifference.
V. RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED THAT:
(1) The Petition be DENIED and DISMISSED WITHOUT PREJUDICE;
(2) A CERTIFICATE OF APPEALABILITY NOT BE ISSUED as Petitioner has not made a substantial showing of a denial of a constitutional right; and
(3) The Clerk of Court be instructed to CLOSE THE CASE.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3 which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.