Opinion
No. 1:20-CV-00104-H
06-15-2020
Jose Roberto CURENO HERNANDEZ, Petitioner, v. Steve MORA, et al., Respondents.
Katrina Gallagher Eash, Winston & Strawn LLP, Dallas, TX, Ruben Loyo, Pro Hac Vice, National Immigrant Justice Center, Chicago, IL, Walter M. Berger, Pro Hac Vice, Winston & Strawn LLP, Houston, TX, for Petitioner. Ann Cruce-Haag, US Attorney's Office, Lubbock, TX, for Respondents.
Katrina Gallagher Eash, Winston & Strawn LLP, Dallas, TX, Ruben Loyo, Pro Hac Vice, National Immigrant Justice Center, Chicago, IL, Walter M. Berger, Pro Hac Vice, Winston & Strawn LLP, Houston, TX, for Petitioner.
Ann Cruce-Haag, US Attorney's Office, Lubbock, TX, for Respondents.
ORDER
JAMES WESLEY HENDRIX, United States District Judge
Petitioner Jose Roberto Cureno Hernandez, an immigration detainee proceeding with the assistance of counsel, filed an emergency petition for a writ of habeas corpus under 28 U.S.C. § 2241. He raises two independent grounds for relief, asserting that each entitles him to immediate release. First, and more urgently, Petitioner argues that the ongoing COVID-19 pandemic—and Respondents' alleged inadequate response to the pandemic—have created unconstitutional conditions of confinement at the Bluebonnet Detention Center (BBDC). Second, Petitioner argues that the mandatory-detention provision of 8 U.S.C. § 1226(c) is unconstitutional as applied to him because his two-year detention is so long that it constitutes a violation of his Fifth Amendment right to due process. The Court ordered expedited briefing, which is now complete. To expedite a decision on the COVID-19 issue, the Court will address Petitioner's two grounds for relief separately. The Court addresses only the conditions-of-confinement claim in this order. As explained below, the Court finds that Petitioner's first ground for relief is not cognizable under Section 2241 and must be dismissed for lack of subject-matter jurisdiction. His second ground for relief remains pending, and the Court will address it by separate order in due course.
1. Background
Petitioner is a 41-year-old native and citizen of Mexico who is detained in the custody of Immigration and Customs Enforcement (ICE) while his removal proceedings are pending. He is currently confined in the BBDC in Anson, Texas.
A. COVID-19 and Petitioner's Health Conditions
The World Health Organization declared that the new coronavirus outbreak (COVID-19) qualified as a global pandemic nearly three months ago. Courts have recognized that the pandemic "presents an extraordinary and unique public-health risk to society," which has required "unprecedented protective measures" by local, state, and national governmental authorities to limit the spread of the virus. Sacal-Micha v. Longoria , 449 F. Supp. 3d 656, 665–66 (S.D. Tex. Mar. 27, 2020). New information about the virus is published daily as research quickly develops.
WHO Timeline – COVID-19 , World Health Organization (Apr. 27, 2020), https://www.who.int/news-room/detail/27-04-2020-who-timeline---covid-19 (last visited June 5, 2020).
Based on the information available now, the Centers for Disease Control (CDC) recommends that individuals practice social distancing and wear masks. Recent guidance from the CDC says that "[b]ased on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19."
People Who Are at Higher Risk for Severe Illness , Centers for Disease Control and Prevention (May 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited June 5, 2020).
Here, it is undisputed that Petitioner has no chronic medical issues. And his age does not place him in the category of "older adults" considered by the CDC to be at heightened risk for the disease. Nevertheless, Petitioner states that he "has smoked a few cigarettes a day since he was young, and he is worried that the side effects of smoking will make him more susceptible to complications" if he contracts COVID-19. (Dkt. No. 1 at ¶ 44.)
See Older Adults , Centers for Disease Control and Prevention (Apr. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html (last visited June 5, 2020).
B. Petitioner's Allegations Regarding the BBDC
The virus has significantly impacted the BBDC. When Petitioner filed his emergency petition, there were 42 confirmed cases at the BBDC. (Dkt. No. 1 at 12.) Ten days later, there were 111 confirmed cases, including about 80 detainees who had recovered from the illness. (Dkt. No. 5 at 4.) The number of total confirmed cases rose to 132 within another ten days. (Dkt. No. 10 at 8.) Thankfully, more than a week later, only three new cases have been reported. And fortunately, no detainees at the BBDC have died after testing positive for COVID-19.
See ICE Guidance on COVID-19 , U.S. Immigrations and Customs Enforcement (June 12, 2020), https://www.ice.gov/coronavirus (last visited June 15, 2020).
See id.
Most of Petitioner's specific factual allegations about the conditions at the BBDC are described in his unsworn declaration under 28 U.S.C. § 1746, which he signed on May 7, 2020. Petitioner claims that the conditions at the BBDC do not allow for proper social distancing. (Dkt. No. 1 at 11.) He alleges that his dorm is at full capacity—that all 52 bunkbeds are occupied. He states that the beds are only 1-1.5 meters apart. (Dkt. No. 1-1 at 2, ¶ 4.) So, he claims that when he is in his bunk, he is unable to remain a safe distance away from the other men in his dorm. He also claims that the detainees all eat together and that there is not enough space to properly distance themselves in line or while they sit to eat. (Id. )
Petitioner alleges that the BBDC has not provided adequate cleaning supplies or personal protective equipment (PPE). (Dkt. No. 1 at 10–12.) He says that the detainees all have access to hand soap and body soap in the bathrooms, but that the soap sometimes runs out. (Dkt. No. 1-1 at 3, ¶ 12.) He also states that, although he has access to gloves and hand sanitizer because of his work assignment, those items are not permitted for the general population. (Dkt. No. 1-1 at 3, ¶ 11.) He acknowledges that his dormitory is regularly cleaned, and that both the bathrooms and the dining area are cleaned three times a day. (Dkt. No. 1-1 at 3, ¶ 8.) Petitioner alleges that each detainee is provided with one face mask, which can only be laundered on certain days. (Dkt. No. 1-1 at 3, ¶ 10.) He does not have a back-up mask to wear while his mask is being washed. (Id. )
Finally, Petitioner alleges that the BBDC is not providing adequate medical screening or care. (Dkt. No. 1-1 at 4, ¶ 15.) He admits that nurses come to his dorm three times a day to respond to medical requests, but he asserts that "there do not seem to be many people" available if a detainee "get[s] really sick." (Id. ; see also Dkt. No. 1 at 13, ¶ 45.) He alleges that he felt ill with a sore throat and a cough about a week before he filed his petition. (Dkt. No. 1-1 at 3–4, ¶ 14.) He put in a request for medical attention and received Tylenol and cough syrup. (Id. ) He was no longer feeling ill when he filed the petition. (Id. ) Petitioner had not been tested for COVID-19 when he filed his petition. (Id. )
C. Respondents' Answer
Respondents dispute several of Petitioner's assertions. In support of their contentions, Respondents submitted the declaration of Miguel Vergara, the Assistant Field Office Director for ICE at the BBDC. (Dkt. No. 5 at 3-6.) Vergara's declaration, signed May 21, 2020, describes the steps taken by ICE and the BBDC generally to protect the safety of the detainees and staff at the BBDC, and specifically to protect Petitioner. (Id. at ¶ 7.)
Respondents state that the BBDC currently houses 423 detainees—a little over half of their total capacity of 750. (Id. at ¶ 10.) They allege that Petitioner's dorm has 56 beds, but it is far from full. (Id. at ¶ 22.) In fact, only nine other detainees live in Petitioner's dorm, which allows them to maintain safe distancing. (Id. ) Vergara's declaration says that each detainee at the BBDC was given two cloth and two surgical masks. (Dkt. No. 5 at 5, ¶ 18.) Additionally, all officers were given surgical masks, N-95 masks, or both. (Id. )
Respondents assert that due to the pandemic, meals are brought to detainees in their dormitory. (Dkt. No. 5 at 5, ¶ 14.) Additionally, they allege that proper PPE is worn by staff while the food is prepared and served. (Id. ) Detainees who have tested positive for COVID-19 are served food in Styrofoam plates with disposable utensils. (Id. )
According to Respondents, all detainees now have access to cleaning solutions to clean their personal space in addition to regular cleaning by the dorm porters. (Dkt. No. 5 at 5, ¶ 15.) The BBDC uses a bleach-based solution to clean dorms and other spaces. (Id. ) In non-dormitory areas like the teleconferencing room used for court hearings, BBDC employees apply the bleach-based solution to all hard surfaces after each group leaves and before a new group enters. (Id. ) A detainee may ask the officers to apply the bleach-based cleaner to surfaces or items as desired. (Id. )
Vergara describes diligent efforts by staff and detainees to maintain a distance of at least six feet apart with all parties wearing masks unless a medical procedure requires closer contact. (Dkt. No. 5 at 5–6, ¶ 19.) He explains that there are informational posters about proper hygiene and COVID-19 related procedures in each the dormitories and attaches a copy of the materials posted in Petitioner's dormitory. (Dkt. No. 5 at 6, ¶ 21.)
Detainees who have tested positive for COVID-19 are isolated in dorms and separated from all other detainees. (Dkt. No. 5 at 4–5, ¶ 12.) He explains the safeguards in place to prevent cross-contamination between dormitories. (Dkt. No. 5 at 5, ¶ 13.) Vergara states that Petitioner was tested for COVID-19 on May 14, 2020 and received a negative result on May 17, 2020. (Dkt. No. 5 at 4–5, ¶ 12.) He is housed with other detainees who have tested negative for the virus and will have no contact with detainees who have tested positive. (Id. )
On the merits, Respondents argue that Petitioner's conditions-of-confinement claim is not cognizable in a petition for writ of habeas corpus. Additionally, they argue that even if the Court had jurisdiction over Petitioner's conditions-of-confinement claim, he does not describe conditions that violate the Constitution.
In his reply, Petitioner does not specifically rebut any of the facts alleged in Vergara's declaration, but he asserts generally that "Respondents' characterization of these conditions is simply wrong." (Dkt. No. 10 at 7). He argues that the number of cases at the BBDC is proof that the conditions are unconstitutional and that the Respondents try to minimize the seriousness of the outbreak. Further, Petitioner argues that Respondents "ignore settled law that habeas is appropriate" in this context. The Court notes that although Petitioner and Respondents describe very different facts, the factual allegations stem from declarations dated three weeks apart. It is likely that Respondents, like everyone else in the world, are adapting to the pandemic and updating their practices and procedures as new information and resources become available.
Petitioner cites to no settled law to support his contention. The Supreme Court has "left open the question whether [petitioners] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus." Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1862–63, 198 L.Ed.2d 290 (2017) (leaving open the possibility that, instead, detainees may seek injunctive relief to challenge large-scale policy decisions concerning conditions imposed on hundreds of prisoners); see also Bell v. Wolfish , 441 U.S. 520, 526 n.6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ("[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself."). At most, Petitioner identifies a circuit split in which the Fifth Circuit consistently falls on the opposite side of his argument. Compare United States v. DeLeon , 444 F.3d 41, 59 (1st Cir. 2006) ("If the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available."), and Aamer v. Obama , 742 F.3d 1023, 1036 (D.C. Cir. 2014) ("The illegality of a petitioner's custody may flow from ... the conditions of detention ... and he may employ the writ to remedy such illegality."), with Cook v. Hanberry , 592 F.2d 248, 249 (5th Cir. 1979) ("Habeas corpus is not available to prisoners complaining only of mistreatment during their legal incarceration."), and Pierre v. United States , 525 F.2d 933, 935–36 (5th Cir. 1976) ("Simply stated, habeas is not available to review questions unrelated to the cause of detention."), and Rourke v. Thompson , 11 F.3d 47, 49 (5th Cir. 1993) (a petitioner "cannot avail himself of the writ of habeas corpus when seeking injunctive relief unrelated to the cause of detention.").
2. Legal Standard
Federal law provides two distinct avenues to relief for complaints related to incarceration: the petition for writ of habeas corpus and the civil-rights action for equitable or monetary relief. Muhammad v. Close , 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004). Habeas is reserved for "[c]hallenges to the validity of any confinement or to particulars affecting its duration," while civil-rights actions are typically used to attack conditions of confinement. Id. (citing Preiser v. Rodriguez , 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ).
"Which statutory vehicle to use depends on the nature of the claim and the type of relief requested." Poree v. Collins , 866 F.3d 235, 243 (5th Cir. 2017). The "core issue" is "whether the prisoner challenges the ‘fact or duration’ of his confinement or merely the rules, customs, and procedures affecting ‘conditions’ of confinement. Cook v. Tex. Dep't of Crim. Justice Transitional Planning Dep't , 37 F.3d 166, 168 (5th Cir. 1994).
A petitioner may seek habeas relief under 28 U.S.C. § 2241 if he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). Habeas exists solely to "grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose." Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976). "Simply stated, habeas is not available to review questions unrelated to the cause of detention." Id. at 935. "The Fifth Circuit follows a bright-line rule: ‘If a favorable determination ... would not automatically entitle [the detainee] to accelerated release, ... the proper vehicle is a [civil rights] suit.’ " Sacal-Micha , 449 F. Supp. 3d at 662 (quoting Carson v. Johnson , 112 F.3d 818, 820–21 (5th Cir. 1997) ).
Fifth Circuit precedent provides that unconstitutional conditions of confinement—even conditions that create a risk of serious physical injury, illness, or death—do not warrant release. Spencer v. Bragg , 310 F. App'x 678, 679 (5th Cir. 2009) (citing Carson , 112 F.3d at 820–21 ). Even allegations of mistreatment that amount to cruel and unusual punishment do not nullify an otherwise lawful incarceration or detention. Cook v. Hanberry , 596 F.2d 658, 660 (5th Cir. 1979). Rather, the proper remedy for unconstitutional conditions of confinement should be equitable—to enjoin the unlawful practices that make the conditions intolerable. See id. Thus, "allegations that challenge the fact or duration of confinement are properly brought in habeas petitions, while allegations that challenge rules, customs, and procedures affecting conditions of confinement are properly brought in civil rights actions." Schipke v. Van Buren , 239 F. App'x 85, 85–86 (5th Cir. 2007) (citing Spina v. Aaron , 821 F.2d 1126, 1127–28 (5th Cir. 1987) ).
A demand for release does not convert a conditions-of-confinement claim into a proper habeas request. See Springer v. Underwood , No. 3:19-CV-1433, 2019 WL 3307220, at *2 (N.D. Tex., Jun. 28, 2019) rec. accepted , 2019 WL 3306130 (N.D. Tex., Jul. 22, 2019) (finding that "[Petitioner's] allegations—that exposure to asbestos and mold while incarcerated violated the Eighth Amendment—must be pursued under Bivens [v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ]. And his request for a ‘reduction in [his] sentence’ ... does not convert his civil rights claims to habeas claims.") (citing Rios v. Commandant, U.S. Disciplinary Barracks , 100 F. App'x 706, 708 (10th Cir. 2004) ("In our view, a prisoner may not transform a civil rights action involving the conditions of his confinement into a § 2241 petition merely by seeking sentencing relief in a manner not connected to his substantive claims.")); see also Archilla v. Witte , 2020 WL 2513648, at *12 (N.D. Ala. May 15, 2020) ("But tacking a traditional habeas remedy on to a prototypical conditions-of-confinement claim does not convert that classic civil rights claim into a habeas claim"). In sum, it is well established in this circuit that a detainee is not entitled to habeas relief if he raises civil-rights claims related to the conditions of his confinement. Sanchez v. Brown , No. 3:20-CV-00832, 2020 WL 2615931, at *12 (N.D. Tex., May 22, 2020) (collecting cases).
3. Analysis
A. Petitioner's claims, if any, are not cognizable under the habeas statute, but rather arise under civil-rights statutes.
Given the above precedent, the Court lacks jurisdiction to consider Petitioner's conditions-of-confinement in the habeas context. Petitioner's complaints about the threat of infection and the conditions at the BBDC are unrelated to the cause or duration of his detention. Additionally, Petitioner's allegations, if true, would not automatically entitle him to accelerated release. Rather, Petitioner raises the types of conditions-of-confinement claims that are more properly considered in a civil-rights action, and, if proven, would naturally lead to an injunctive remedy to correct the unlawful practices rather than his release. Thus, under established Fifth Circuit law, the Court lacks subject-matter jurisdiction to consider the conditions claim in a habeas context.
In an attempt to avoid this result, Petitioner argues that habeas review should be available because he challenges the fact of his detention in unconstitutional conditions and because he seeks release. He asserts that the risk of infection in the BBDC makes his detention there unlawful. He claims, in conclusory fashion, that release is the only constitutionally acceptable remedy because "it is not possible to craft an injunction that could satisfactorily reduce the risk of Petitioner's exposure to COVID-19." (Dkt. No. 10 at 11.) The parties dispute the degree to which ICE and BBDC officials have taken appropriate steps to mitigate the spread of COVID-19 at the facility. But Petitioner argues that any preventive measures officials did implement "have been wildly ineffective in preventing the spread of the virus." (Dkt. No. 10 at 2.) So he claims that an injunction could never work, and his release is the only way to ensure his safety. Petitioner's demand for release does not bring his civil-rights claims within the scope of habeas review. He cannot circumvent the well-established limitations outlined above through a conclusory assertion that there is no possibility of narrowly tailored relief. He seeks release—and only release—without fully addressing, let alone rebutting, the protective measures and safety protocols detailed in Vergara's affidavit. The record falls well short of supporting the extraordinary remedy sought—release—and Petitioner provides no limiting principle for his argument. That is, if he must be released, despite his relatively mild health conditions, why shouldn't every detainee at the BBDC be released? His inability to provide any such limitation or to fully address Respondents' evidence and authorities precludes the Court from granting him the relief he seeks.
But following the same logic, even Petitioner's release could not fully guarantee his safety. The unprecedented preventive measures taken by communities and governing authorities have helped "flatten the curve" or slow the spread of COVID-19. See Chris Wilson, The U.S. Has Flattened the Curve. Next Up Is ‘Squashing’ It — and That's Not Going Well , Time (Apr. 27, 2020), https://time.com/5827156/squashing-squash-curve-coronavirus-covid19/ (last visited June 10, 2020). But the pandemic is ongoing, and even diligently following the CDC's recommendations can only decrease the threat of infection—it cannot eliminate it. Petitioner states that he intends to return to Chicago if he is released. Chicago is currently in Phase III of a five-phase plan implemented in response to the COVID-19 pandemic. See Reopening Chicago , City of Chicago, https://www.chicago.gov/city/en/sites/covid-19/home/reopening-chicago.html (last visited June 10, 2020). While the number of new cases is steadily declining, there were still between 41 and 209 new COVID-19 cases reported each of the last five days. See Daily COVID-19 Cases and Deaths , City of Chicago, https://data.cityofchicago.org/Health-Human-Services/Daily-COVID-19-Cases-and-Deaths/kxzd-kd6a (last visited June 12, 2020). See also Latest Data , City of Chicago, https://www.chicago.gov/city/en/sites/covid-19/home/latest-data.html (last visited June 9, 2020).
Petitioner's complaints about the risk of infection and the inadequate protections in place at the BBDC are attacks on the conditions of his confinement that do not entitle him to release. His conditions of confinement—even if they are dangerous and unconstitutional—do not nullify an otherwise lawful detention. This conclusion is consistent with established Fifth Circuit law. See Pierre v. United States , 525 F.2d at 936-37 (5th Cir. 1976) (Goldberg, J., concurring) ("The majority holds only that habeas has its boundaries; the writ does not permit us to roam the judicial range in a farfetched effort to grant declaratory or injunctive relief unrelated to the question of custody."); Rourke v. Thompson , 11 F.3d 47, 48–49 (5th Cir. 1993) (finding that Petitioner could not use a habeas petition to seek injunctive relief from conditions of confinement—denial of medical care and imposition of arbitrary disciplinary sanctions—that were unrelated to the cause of his detention); Cook v. Hanberry , 596 F.2d at 660 (holding that the appropriate remedy for conditions that constitute cruel and unusual punishment is to enjoin the practices or require correction of the conditions); Lineberry v. United States , 380 F. App'x 452, 453 (5th Cir. 2010) (finding that a prisoner's allegations that he was subjected to cruel and unusual punishment, even if proven to be true, would not result in his accelerated release and affirming the district court's dismissal without prejudice based on a determination that the prisoner must seek relief in a civil-rights action instead.); Spencer v. Bragg , 310 F. App'x 678, 679 (5th Cir. 2009) (finding petitioner's claims of exposure to asbestos, lack of proper medical treatment, retaliation, and loss of legal notes would not result in his accelerated release and were thus not the proper subject matter for habeas review).
The Court notes that Petitioner also challenges the lawfulness of his mandatory detention, but that claim is unrelated to and independent from the conditions claim addressed in this order.
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B. The district-court cases granting habeas relief to immigration detainees are distinguishable from this case.
The Court notes, however, that at least two district courts in this circuit have granted habeas relief and released some—but not all—immigration detainees seeking review under Section 2241 in light of the novel circumstances presented by the COVID-19 pandemic. See Vazquez Barrera v. Wolf , 455 F. Supp. 3d 330 (S.D. Tex., Apr. 17, 2020) ; Dada v. Witte , No. 1:20-CV-00458, 2020 WL 2614616, at *1 (W.D. La., May 22, 2020). The district court in Dada carefully limited its ruling to the particular fact pattern and plaintiffs before it. 2020 WL 2614616 at *1. The court recognized that the circumstances created by the pandemic are in constant flux, and "as we find out more about the disease," the "best approach changes daily," and the relevant facts "could well be different next week." Id. The court cautioned that "nothing decided in this case applies to any other detainee who might seek release based upon the situation existing at that time." Id.
In Vazquez Barrera , the district court granted a temporary restraining order and released one ICE detainee, finding that public safety concerns required denial of relief to the other petitioner. 2020 WL 1904497. Ultimately, the court found that the unique threat of infection in a detention setting was unconstitutional, and given the lack of information and resources at the time, no possible mitigation short of release would protect the detainee's constitutional rights. Id. at *3. Thus, the court reasoned that the plaintiffs were challenging the fact of their detention and were entitled to habeas review. Id. at *4.
The court did not find any express authority for using the writ in this way, but it relied on the fact that the Supreme Court has not "explicitly foreclosed the use of habeas for conditions-of-confinement claims." Id. Additionally, the court cited to Fifth Circuit cases acknowledging that the line between habeas and civil-rights actions is sometimes "blurry." See Poree v. Collins , 866 F.3d 235, 243 (5th Cir. 2017) (quoting Cook v. Tex. Dep't of Crim. Justice Transitional Planning Dep't , 37 F.3d 166, 168 (1994) ).
The facts present in Vazquez Barrera are distinguishable from this case, primarily because of how quickly the medical community has responded to the pandemic and how much has been learned in the last two months. We know more now, on the other side of the initial curve, about preventive measures and successful treatment, and testing is faster and more accessible. Mitigation of the risk is more possible now than it was when Vazquez Barrera was decided, making injunctive relief not only possible, but more appropriate. Additionally, the plaintiffs in Vazquez Barrera had serious chronic medical issues that are not present here. Further, the decision represents a minority view among district courts to consider this issue in this circuit and relies heavily on the lack of clear guidance from the Supreme Court. Nevertheless, this Court, like most district courts to consider the issue, will follow the bright-line rule established by decades of Fifth Circuit precedent that conditions-of-confinement claims are not the proper subject matter for a writ of habeas corpus.
C. Many district courts in the Fifth Circuit have correctly dismissed detainees' coronavirus-related habeas actions for lack of subject-matter jurisdiction.
Several district courts in this circuit have reached the same conclusion when considering similar conditions-of-confinement claims in light of the COVID-19 pandemic. See Sanchez , 2020 WL 2615931, at *12 (finding that the district court lacked jurisdiction over a habeas action brought by pretrial detainees to challenge the jail conditions caused by COVID-19); Livas v. Myers , No. 2:20-CV-00422, 455 F. Supp. 3d 272, 282–83 (W.D. La. Apr. 22, 2020) (noting the lack of Fifth Circuit authority allowing conditions-of-confinement claims under Section 2241 and dismissing a petition for lack of jurisdiction where prisoners sought release due to COVID-19); Sacal-Micha , 449 F. Supp. 3d at 664 (finding that an ICE detainee was not likely to succeed on the merits of his habeas petition because his allegation that ICE could not protect him from contracting COVID-19 was, at its core, a challenge to the conditions of his confinement); Ambriz v. United States , No. 4:20-CV-00568, 465 F. Supp. 3d 630 (N.D. Tex. Jun. 5, 2020) (summarily dismissing a habeas petition for lack of subject-matter jurisdiction, in part because it raises conditions-of-confinement claims unrelated to the fact or duration of his incarceration and which would not entitle him to accelerated release); Provines v. Wilson , No. 4:20-CV-00475, 2020 WL 2762563 (N.D. Tex. May 20, 2020) (same).
Similarly, in another division of this Court, eleven ICE detainees filed a consolidated habeas petition under Section 2241 and a motion for temporary restraining order (TRO) seeking immediate release because, "considering the COVID-19 global pandemic, their continued detention violates the right to due process under the Fifth Amendment." Umarbaev v. Moore , No. 3:20-CV-1279, 2020 WL 3051448, at *1 (N.D. Tex., Jun. 6, 2020). The petitioners expressly challenged their "unconstitutional detention," alleging that they are medically vulnerable and each one "has already tested positive for COVID-19 or faces a high risk of dying or becoming seriously ill if they do become infected." Id. at *2. They also alleged that "[d]espite the ongoing outbreak," ICE officials had "failed to take the steps necessary to ensure that Petitioners are held in even minimally constitutionally sufficient conditions." Id. But the court found that the petitioners did not challenge the legal authority for their detentions; they challenged only the conditions of their confinement. Id. The court denied the TRO and dismissed the habeas petition for lack of jurisdiction because the petitioners' conditions-of-confinement claims were not properly brought under Section 2241 and even if proven, would not entitle them to release. Id. at *4. The court went on find that, even if it had jurisdiction over the petitioners' claims, they had failed to demonstrate a violation of their Fifth Amendment rights. Id. at *7.
Here, Petitioner attacks his conditions of confinement independently of any question related to the fact or duration of his detention. These claims are not cognizable in habeas review. Instead, his claims fit squarely into the scope of a civil-rights action for injunctive relief. Moreover, the fact that he seeks release does not transform his civil-rights claims into a proper habeas action. See Springer , 2019 WL 3307220, at *2 ; Sanchez , 2020 WL 2615931, at *12. His conditions of confinement, even if proven to be constitutionally deficient, do not warrant his immediate or accelerated release. Thus, the petition for writ of habeas corpus must be dismissed for lack of subject-matter jurisdiction.
D. In any event, the Court would deny Petitioner's claim because he has failed to establish that the conditions of his confinement violate his civil rights.
Even assuming that the Court had jurisdiction to consider the merits of Petitioner's conditions-of-confinement claim, he has failed to demonstrate a violation of his civil rights. "[T]he fact that ICE may be unable to ... fully guarantee [Petitioner's] safety does not amount to a violation of his constitutional rights and does not warrant his release." Sacal-Micha , 449 F. Supp. 3d at 665–66. As an immigrant detainee awaiting removal proceedings, Petitioner's constitutional rights equate to those of a pretrial detainee and stem from the due process protections of the Fifth and Fourteenth Amendments, Edwards v. Johnson , 209 F.3d 772, 778 (5th Cir. 2000). There is no constitutionally significant distinction between the rights of pretrial detainees and convicted inmates to basic human needs such as reasonable safety and medical care. Hare v. City of Corinth , 74 F.3d 633, 643 (5th Cir. 1996). Officials "must provide humane conditions of confinement ... and must take reasonable measures to guarantee the safety of inmates." Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
Unlike convicted prisoners, civil detainees are entitled to be free from conditions that amount to punishment. Bell , 441 U.S. at 535, 99 S.Ct. 1861. However, not all discomforts associated with detention amount to punishment in the constitutional sense, even restrictions that the detainee would not experience if he were released. Id. at 540, 99 S.Ct. 1861. Courts should not underestimate the difficulties of operating a detention center. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington , 566 U.S. 318, 326, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (citing Turner v. Safley , 482 U.S. 78, 84–85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ). "A detention facility's protocols for isolating individuals, controlling the movement of its staff and detainees, and providing medical care are part and parcel of the conditions in which the facility maintains custody over detainees." Sacal-Micha , 449 F. Supp. 3d at 663.
"[T]he incidence of diseases or infections, standing alone, [cannot] imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks." Shepherd v. Dallas Cty. , 591 F.3d 445, 454 (5th Cir. 2009). "Rather, a detainee challenging jail conditions must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs; any lesser showing cannot prove punishment in violation of the detainee's Due Process rights." Id.
Petitioner has not shown a pervasive pattern of serious deficiencies in providing for his basic human needs. Petitioner relies primarily on the fact of the pandemic and the outbreak at the BBDC to establish his claim. Although he claims ICE and the BBDC have not done enough—and could never do enough—to adequately ensure his safety, his pleadings belie the sort of deliberate indifference normally associated with these claims. He describes consistent access to medical care and prompt medical treatment when he recently felt ill. He acknowledges that his dorm, bathroom, and dining area are cleaned multiple times per day and that he has regular access to cleaning supplies and sanitizer. He admits that Respondents have taken some extra precautions in light of the pandemic, including issuing PPE to detainees and detention staff. His pleadings alone do not establish that his conditions are unconstitutionally punitive. Moreover, Petitioner does not specifically deny that Respondents have implemented any of the additional protective measures described in Vergara's affidavit. As a result, Petitioner has failed to show that the conditions of his confinement at the BBDC violate his due process rights.
4. Conclusion
For the reasons set forth above, the Court finds that Petitioner's conditions-of-confinement claim is not cognizable under Section 2241 and the petition must be dismissed for lack of subject-matter jurisdiction. The Court finds that there is no just reason for delay in entering final judgment as to this claim, and it will enter judgment accordingly.