Opinion
Civil Action 4:20-CV-1986
03-22-2021
MARCO TULIO ARANA GUERRA, Petitioner v. WARDEN CLAIR DOLL, [1] Respondent
MARIANI, 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 separate grounds, including two related to the COVID-19 pandemic. 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 October 28, 2020, Marco Tulio Arana Guerra (“Petitioner”), a United States Immigration and Customs Enforcement (“ICE”) detainee at York County Prison, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc. 1). In his Petition, Petitioner seeks release from ICE custody due to the length of his detention as well as concerns about the health risks of contracting COVID-19 and the prison's ability to prevent the spread of COVID-19. With his Petition, Petitioner filed a Motion to Expedite (Doc. 2). On October 30, 2020, Petitioner paid the filing fee. On November 4, 2020, I issued a Show Cause Order (Doc. 5), setting forth an expedited briefing schedule. On November 12, 2020, Respondent filed a Response (Doc. 7). On November 25, 2020, Petitioner filed a Traverse (Doc. 8) replying to Respondent's Response.
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 spread of the virus-specifically at York County Prison. Petitioner alleges that he “is 46 years old, Native and Citizen of Guatemala. Who has been in ICE custody for more than 11-Months. Petitioner suffers from a Kidney Stone and Currently takes medication for that. Also Petitioner Suffers from Glaucoma and is Diabetic.” (Doc. 1 at p. 6, ¶ 22). Petitioner alleges that his medical conditions expose him to imminent risk if exposed to COVID-19 and that York County Prison cannot adequately address that risk. (Doc. 1 at pp. 9-10, ¶ 22(ix-xi)). In his Traverse, he argues that “his 13+ months detention[] need[s] to be taken into consideration for his release from the Civil detention.” (Doc. 8, ¶ 3). Petitioner requests immediate release from ICE custody as relief.
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 to Petitioner by the ongoing COVID-19 pandemic.
A. Due Process
Petitioner states in his Petition that he has been in ICE custody for more than eleven (11) months at the time of his Petition. (Doc. 1, p. 5, ¶ 21). In his Traverse, he argues,
[D]etention of more than a year needs to be taken into consideration as the Alien here is not a Violent Offender, and has ties to U.S. and when an Alien can prove after more than a year in Civil detention that he is not a Danger to Community and not a Flight risk, He deserves to have a relief in the form of Habeas as is here in case of the Petitioner.(Doc. 8, p. 2).
He further argues, “[ On November 7, 2018, this court granted a bond hearing for a detainee who has been held pursuant to 1226(c) for fourteen months. Bah v. Doll, Civil No. 3:18-cv-1409]. So here Petitioner is in the much worse situation and has been detained for Appx. Same time.” (Doc. 8 at p. 10, ¶ 25). I construe these arguments as 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 Guatemala. (Doc. 1 at p. 6, ¶ 22). It is not known to ICE when or where Petitioner entered the United States. (Doc. 7-1, Ex. 2, p. 1). A prior order of removal was entered against Petitioner on December 20, 2005, and Petitioner was removed from the country on January 13, 2006. Id. On November 12, 2019, ICE encountered Petitioner again, determined he had illegally re-entered the United States, and served him with a Notice of Intent/Decision to Reinstate Prior Order indicating that the 2005 removal order would be reinstated. (Doc. 7-1, Ex. 1, p. 2; Ex. 2). Petitioner was placed in detention that day. (See Doc. 7-1, Ex. 3, p. 1).
Petitioner claimed and was found to have a reasonable fear of persecution if returned to Guatemala, and he was placed into withholding-only proceedings. (Doc. 7-1, Ex. 4). On March 12, 2020, an immigration Judge (“IJ”) denied Petitioner's application for withholding of removal, see id., and the Board of Immigration Appeals (“BIA”) dismissed Petitioner's appeal on September 2, 2020 (Doc. 7-1, Ex. 5). On September 8, 2020, Petitioner filed a Petition for Review of the decision and a Motion to Stay Removal with the Third Circuit Court of Appeals. (Doc. 7-1, Ex. 9). Pursuant to a standing order, the Third Circuit granted a temporary stay of removal pending consideration of the merits. Id. On January 22, 2020, Petitioner filed a brief with appendix, following a noncompliance order requesting that he do so. Arana-Guerra v. Attorney General United States, USCA No. 20-2818 (Docs. 17, 18). Petitioner's Petition for Review of his withholding-only case is still pending.
On May 13, 2020, Petitioner was given a bond hearing pursuant to Guerrero-Sanchez v. Warden York Cnty. Prison, 905 F.3d 208 (3d Cir. 2018). (See Doc. 7-1, Exs. 1, 6). The hearing occurred six (6) months after Petitioner entered ICE custody in November 2019. At the hearing, an IJ denied Petitioner bond based on Petitioner posing a significant flight risk. (Doc. 7-1, Ex. 6). On August 12, 2020, an IJ denied a motion by Petitioner for a custody redetermination, finding Petitioner failed to establish changed circumstances since his prior bond hearing. (Doc. 7-1, Ex. 7). On August 26, 2020, Petitioner appealed the denial to the BIA. (See Doc. 7-1, Ex. 8). Respondent indicates that the BIA appeal regarding the custody redetermination is pending. (Doc. 7, p. 9).
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) (emphasis added). 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.
8 U.S.C. § 1231(a)(5) provides for the reinstatement of a prior removal order when a previously removed alien re-enters the United States illegally. Under this provision, “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed.” 8 U.S.C. § 1231(a)(5). The reinstated removal order is not appealable to the BIA. See 8 C.F.R. §§ 208.2(c)(2)(i), (3)(i).
An alien subject to a reinstated removal order may still enter withholding-only proceedings. 8 C.F.R. § 208.31(a), (e). But even if the “withholding claim is ultimately granted, this does not mean that [the alien] cannot be removed from the United States; it means only that he will not be sent to [the country to which he has a credible fear of returning].” Bucio-Fernandez v. Sabol, No. 1:17-CV-00195, 2017 WL 2619138, at *2 (M.D. Pa. June 16, 2017); see also 8 U.S.C. § 1231(a)(1)(B). Based on this framework, the Third Circuit concluded that “a reinstated order of removal against an alien who has initiated withholding-only proceedings is administratively final, ” and the alien is therefore detained pursuant to 8 U.S.C. § 1231(a). Guerrero-Sanchez, 905 F.3d at 217.
Here, Petitioner's withholding-only case is pending before the Third Circuit and his appeal of the order denying him a custody redetermination is pending before the BIA, but his reinstated order of removal remains final. He therefore is detained under 8 U.S.C. § 1231(a)(6). See Id. at 215-17.
3. Due Process Under 8 U.S.C. § 1231(a)(6)
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court recognized six months as a “presumptively reasonable period” of post-final-order detention under Section 1231(a)(6). Zadvydas, 533 U.S. at 688-89, 701. “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 addressed due process concerns when an alien detained under Section 1231(a)(6) is pursuing withholding-only relief. See 905 F.3d at 220. The Third Circuit concluded “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 the 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 received a bond hearing pursuant to Guerrero-Sanchez on May 13, 2020, six (6) months after entering ICE custody on November 12, 2019 and five (5) and one-half months before he filed the present Petition. (See Docs. 1, 7-1, Exs. 3, 6). Petitioner has requested a custody redetermination, and his appeal of the August 12, 2020 order denying that redetermination is still pending before the BIA. The record shows that Petitioner's May 13, 2020 bond hearing satisfied the due-process requirements of Guerrero-Sanchez, that he is exercising his right to request a custody redetermination and to seek review of that decision, and that his detention without a bond hearing has not become prolonged such that it violates the due process standards of Zadvydas, 533 U.S. 678, or Guerrero-Sanchez, 905 F.3d 208. Petitioner therefore is not entitled to relief based on the length of his detention.
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). Thus, 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 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. In Hope, the Third Circuit 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, that detainees who have tested positive for COVID-19 are housed in the general population, and that an increase in COVID-19 cases at York County Prison shows the inadequacy of the facility's safety measures.
Social Distancing and Isolation of COVID-19-Positive Detainees
Petitioner argues that Respondents “are plainly not equipped to protect Petitioners from a potentially fatal exposure to a second stage of COVID-19.” Id. at p. 5, ¶ 22. He highlights the impossibility of maintaining social distancing:
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, ¶¶ 30, 51).
In his Traverse, he alleges,
[S]ome [detainees] are triple celled and others are packed into open space where they literally can touch people sleeping next to them. Sixty people share a handful of sinks and shower in communal bathroom that are cleaned infrequently. They are sitting right next to each other on meals sharing the same tables, prepared and served in unsanitary conditions. The prison's medical practices are inconsistent with CDC guidelines.(Doc. 8, p. 4). Petitioner further alleges in his Traverse that detainees and inmates at York County Prison who test positive for COVID-19 are not being removed from the general population there. He states,
One [detainee] who had contracted COVID-19 before is still with us in the same dorm, 388 people have tested positive including employees, and many other detainees, have COVID19 symptoms, but the prisons not finished testing all the inmate and staff populations. They are neither quarantined nor isolated.
(Doc. 8, p. 4) (emphasis in original).
The Centers for Disease Control and Prevention (“CDC”) has provided guidance on the management of COVID-19 in detention facilities. (See Doc. 7-1, Ex. 11). Regarding the isolation of persons who have tested positive for COVID-19, the guidance references the CDC's general guidance on home isolation. Id. at p. 18. This guidance provides that, as of July 20, 2020, “[a] test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances.” See, Ending Home Isolation, Discontinuing Home Isolation for Persons with COVID-19, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home- patients.html (last updated Dec. 3, 2020). The CDC provides the following recommendations:
Accumulating evidence supports ending isolation and precautions for persons with COVID-19 using a symptom-based strategy. Specifically, researchers have reported that people with mild to moderate COVID-19 remain infectious no longer than 10 days after their symptoms began, and those with more severe illness or those who are severely immunocompromised remain infectious no longer than 20 days after their symptoms began. Therefore, CDC has updated the recommendations for discontinuing home isolation as follows:
Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:
• At least 10 days[] have passed since symptom onset and
• At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and
• Other symptoms have improved.
Persons infected with SARS-CoV-2 who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.Id. Petitioner has not alleged any facts that indicate York County Prison deviated from this CDC guidance by placing a detainee “who had contracted COVID-19 before” (Doc. 8, p. 4) in the general population.
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. 7-1, Ex. 13, Stephen Ritchey Decl.). York County Prison has the capacity to house 2, 245 inmates. (Id. ¶ 7). As of November 10, 2020, it housed only 1, 266 combined male and female inmates and detainees. Id. The facility is following guidance from the CDC, including by isolating any detainees who test positive. (Id. ¶¶ 9, 10, 14). All new intakes are tested for COVID-19 antibodies and, if negative, tested by nasal swab for COVID-19. (Id. at ¶ 13). All new asymptomatic detainees are cohorted with other new arrivals and observed for fourteen (14) days, with daily temperature and symptom checks. (Id. ¶¶ 13, 15). New detainees who present symptoms consistent with COVID-19 are placed in isolation. (Id. at ¶ 14). 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. ¶ 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. ¶ 18). Although only staff, not detainees, are given access to hand sanitizer, the prison issues one bar of soap per detainee and will immediately issue a replacement when that bar is exhausted. Id.
COVID-19 Cases at York County Prison
Despite these protective measures, Petitioner alleges that there has been 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 through September 2020:
From 2nd to 4th September, 2020 YCP has 20 Positive COVID-19 cases, from 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. at ¶ 22(iii). Respondent provided a declaration describing the following COVID-19 case numbers as of November 10, 2020:
a. Since March 2020, at the York County Prison there have been 107 confirmed cases of COVID-19 among ICE detainees. Three of those 107 tested positive prior to entering ICE custody at the York County Prison. As of the morning of November 10, 2020, there were 5 ICE detainees who tested positive for COVID-19 housed in isolation under medical observation consistent with CDC guidelines. 102 ICE detainees who previously tested positive have been cleared and are no longer subject to isolation/quarantine requirements. Additionally, there have been 394 confirmed cases among county inmates, 384 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. 7-1, Ex. 13, ¶ 23).
The number of active COVID-19 cases among ICE detainees as of November 10, 2020-five-is a decrease from that in recent COVID-19 cases 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). The declaration also shows that from October 1, 2020 to November 10, 2020, the facility had seven (7) new cases among ICE detainees and twenty-six (26) among county inmates, which is significantly lower than the more than 195 total new cases Petitioner alleges in the facility from September 2, 2020 to September 30, 2020. Compare (Doc. 7-1, Ex. 13, ¶ 23) (noting 107 cases among ICE detainees and 384 among county inmates as of November 10, 2020), with Mariazza-Chavez, 2020 WL 7755438, at *7 (noting 100 cases among ICE detainees and 368 among county inmates as of October 1, 2020); see also (Doc. 8, p. 2).
While York County Prison has still been experiencing new COVID-19 cases, it appears that it has been able to control the outbreak it experienced through September 2020.
3. Petitioner's Medical Conditions
Petitioner alleges that he is forty-six (46) years old and “suffers from a Kidney Stone and Currently takes medication for that. Also Petitioner Suffers from Glaucoma and is Diabetic.” (Doc. 1 at p. 6, ¶ 22). In Petitioner's intake screening on November 12, 2019, upon entry into ICE custody, Petitioner reported that he had kidney stones. (See Doc. 7-1, Ex. 10, Excerpt of Medical Records).
Petitioner's self-reported diabetes is the only medical condition he alleges that may be a CDC-recognized risk factor for complications from COVID-19. According to the CDC, individuals with type-2 diabetes “are at increased risk of severe illness from the virus that causes COVID-19, ” and individuals with type-1 diabetes “might be at an increased risk.” 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 Feb. 3, 2021) (emphases in original). Petitioner has not alleged what type of diabetes he has or what treatment he may be receiving at York County Prison to control it.
That Petitioner may have 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). Petitioner has not alleged that he lacks any needed medical treatment or that he is confined with individuals who are positive for COVID-19, see Bystron v. Hoover, 456 F.Supp.3d 635, 644 (M.D. Pa. 2020), and Respondent provided support showing that York County Prison is isolating such inmates or detainees. Based on Petitioner's medical conditions, 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; see also United States v. Jones, No. 2:19-CR-00249-DWA, 2020 WL 1511221, at *3 (W.D. Pa. Mar. 29, 2020) (stating, in criminal bond reconsideration case, that “while Defendant indicates that he suffers from hypertension, sleep apnea and asthma . . . his present health conditions are not sufficient to establish a compelling reason for release”). 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 has routinely failed to remedy inhumane conditions.” (Doc. 1, ¶ 50).
In making this argument, Petitioner cites to a 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 II, 2020 WL 2025384, at *6 & 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), 477 F.Supp.3d 357, 368 (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. The prison has implemented changes in its sanitation practices since the start of the pandemic, it follows CDC guidelines on the quarantine and isolation of suspected and confirmed cases of COVID-19, and it saw a large decrease in new cases from September to October 2020. 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).
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. 7-1, Ex. 13). I cannot conclude on the record before me that Petitioner has demonstrated conscious disregard by York County 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.