Opinion
CIVIL ACTION NO. 3:20-cv-02245
02-03-2021
JOSE ROJAS-MARCHAN, A# 215 557 109, Petitioner, v. WARDEN OF CLINTON COUNTY CORRECTIONAL FACILITY, et al., Respondents.
(MARIANI, J.)
() REPORT AND RECOMMENDATION
On December 1, 2020, the Court received and filed the instant pro se petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2241, signed and dated by the petitioner, Jose Rojas-Marchan, on November 24, 2020. (Doc. 1.) In his petition, Rojas-Marchan, a native and citizen of Venezuela, challenges the legality of his continued detention. At the time of filing, Rojas-Marchan was being held in the custody of U.S. Customs and Immigration Enforcement ("ICE") at Clinton County Correctional Facility, which is located in Clinton County, Pennsylvania.
I. BACKGROUND
Rojas-Marchan is a native and citizen of Venezuela who entered the United States illegally at an unknown time and place. In July 2019, he was convicted of passport fraud and aggravated identity theft. He was sentenced to serve a term of 24 months and one day in federal prison.
On April 21, 2020, Rojas-Marchan was served with a notice to appear, charging him with being removable as an alien present in the United States without being admitted or paroled, as an immigrant without valid documents allowing entry or residence, and as an alien convicted of a crime involving moral turpitude. Following completion of his prison sentence on May 20, 2020, Rojas-Marchan was received into ICE custody. On August 19, 2020, an immigration judge entered an order of removal. Rojas-Marchan did not appeal the removal order.
On December 1, 2020, Rojas-Marchan filed his pro se petition for a writ of habeas corpus. (Doc. 1.) On December 22, 2020, the respondent filed a response to the petition. (Doc. 5.) On January 8, 2021, Rojas-Mrachan filed his pro se reply. (Doc. 12.) The matter is ripe for resolution.
II. DISCUSSION
Rojas-Marchan is currently detained in civil immigration custody pursuant to 8 U.S.C. § 1231(a)(6) as an inadmissible alien convicted of a crime involving moral turpitude. In support of his claim to habeas relief, he argues that his continued detention is unreasonable, and thus unconstitutional, based on the conditions of his confinement. He primarily bases this argument on various health conditions he suffers that place him at elevated risk should he contract COVID-19, claiming that immigration and jail officials have failed to implement adequate measures to mitigate the spread of COVID-19 within the facility. He also bases this argument on the otherwise "obscene" conditions of his confinement, which include service of spoiled food at a single meal, failure to clean his unit more than once per day, and a broken toilet in the vicinity of his dorm area. In addition, the respondent has liberally construed the petition as asserting free-standing substantive due process claims based on these same allegations, and we will as well. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants).
Rojas-Marchan argues that he is detained under 8 U.S.C. § 1226, but the evidence of record has clearly established that he is detained pursuant to a final removal order, and thus under 8 U.S.C. § 1231(a)(6).
A. Substantive Due Process Claims
A civil immigration detainee is entitled to the same due process protections as a pretrial detainee under the Fifth Amendment. Hope v. Warden York Cty. Prison, 972 F.3d 310, 325 (3d Cir. 2020). In the context of COVID-19, substantive due process claims by civil immigration detainees are generally based on two "separate but related theories": (1) because of the petitioner's age or health conditions, the detention facility's allegedly inadequate COVID-19 policies and practices constitute impermissible punishment; and (2) the detention facility's allegedly inadequate COVID-19 policies and practices amount to deliberate indifference to the petitioner's serious medical needs. See id.; Camacho Lopez v. Lowe, 452 F. Supp. 3d 150, 160-61 (M.D. Pa. 2020).
See generally Bell v. Wolfish, 441 U.S. 520, 549 (1979) (holding that pretrial detainees may not be punished before they are adjudicated guilty); Hope, 972 F.3d at 325-29.
See generally Helling v. McKinney, 509 U.S. 25, 34-35 (1993) (recognizing that a deliberate indifference claim may be based on an inmate's exposure to toxic substances posing unreasonable health risks); Hope, 972 F.3d at 329-31.
Here, Rojas-Marchan claims that immigration and jail officials have failed to take reasonable measures to mitigate the spread of COVID-19 within the facility. In particular, he alleges that immigration and jail officials have failed to comply with unspecified CDC guidelines. In her response, the respondent has provided substantial evidence and extensive argument to support her position that immigration and jail officials have implemented adequate policies and practices to reasonably mitigate the spread of COVID-19 within the detention facility, and that these policies and practices are also compliant with CDC guidelines applicable to correctional and detention facilities. But this particular issue is moot in light of the undisputed fact that the petitioner has already contracted COVID-19. See Camacho Lopez, 452 F. Supp. 3d at 160-61 ("While relevant to a claim for habeas relief by vulnerable detainees who are not yet ill, . . . claimed deficiencies in disease prevention efforts cannot serve as a basis, in habeas, to release a detainee who has already contracted the disease."). Once a petitioner has already contracted COVID-19, inadequate policies and practices to prevent the spread of COVID-19 can no longer constitute impermissible punishment for habeas purposes. See id.; Castillo-Perez v. Lowe, Civil No. 1:20-CV-02271, 2021 WL 229611, at *3 (M.D. Pa. Jan. 22, 2021).
The CDC has apparently released separate and distinct guidelines for the general public and for the correctional/detention facility setting. It is unclear which guidelines Rojas-Marchan has referenced.
In response to the petition, the respondent has advised that, on December 5, 2020—less than two weeks after he mailed his petition—Rojas-Marchan tested positive for COVID-19. She has also submitted an excerpt from the petitioner's medical records as an exhibit. (See Doc. 5-1, at 18.) Seventeen days later, on December 22, 2020, Rojas-Marchan was asymptomatic and in stable condition, according to the response. In his reply, Rojas-Marchan explicitly concedes that he tested positive for COVID-19 in December 2020, and he does not dispute the respondent's characterization of his condition as asymptomatic and stable.
Rojas-Marchan's related claim that the detention facility's allegedly inadequate COVID-19 policies and practices amount to deliberate indifference to his serious medical needs also fails because he has not alleged that immigration and jail officials provided him with inadequate medical treatment for his COVID-19 infection. See Castillo-Perez, 2021 WL 229611, at *3. Indeed, he has not alleged any symptoms at all that he suffered as a result of contracting COVID-19, nor has he alleged a need for—much less the denial of—any medical care. See id.; Mbewe v. Doll, No. 1:20-cv-01556, 2020 WL 7027599, at *5 n.1 (M.D. Pa. Nov. 30, 2020).
The petitioner also claims that he is entitled to release because the otherwise "obscene" conditions of his confinement constitute impermissible punishment. He alleges that he was served spoiled food at a single meal, but "the denial of a single meal cannot lead to the denial of sufficient nutrition in a way which shocks the conscience and departs from minimal civilized standards of life's necessities." Lloyd v. Barr, No. 4:20-CV-1107, 2020 WL 5076065, at *4 (M.D. Pa. Aug. 27, 2020) (dismissing immigration detainee's claim). He alleges that his "unit" is cleaned only once per day, but this too does not constitute impermissible punishment. See Algieri v. Jones, No. CIV-18-952-HE, 2019 WL 962015, at *2 (W.D. Okla. Jan. 9, 2019) (permitting pretrial detainee to clean his cell only one time per month did not amount to punishment); Sanders v. Van Doran, C.A. No. 8:08-3546-PMD, 2009 WL 82498, at *5 (D.S.C. Jan. 9, 2009) ("[T]he plaintiff complains that he is only allowed to clean his cell every two weeks. The fact that plaintiff's cell gets dirty does not mean that he is being denied the minimal civilized measure of life's necessities."). Finally, he alleges that there was a broken toilet with human waste in it near his dorm area, which had been broken for twelve days at the time when his habeas petition was mailed for filing; he does not allege that he was himself denied access to a working toilet. While undoubtedly unpleasant, this too does not constitute impermissible punishment. See Smith v. Copeland, 87 F.3d 265, 268-69 (8th Cir. 1996) (pretrial detainee's exposure to "raw sewage" in an overflowed toilet over four days without injury did not constitute impermissible punishment); Hardiman v. Sheahan, No. 96 C 3478, 1998 WL 89110, at *2 (N.D. Ill. Feb. 13, 1998) (pretrial detainee's exposure to plugged toilet in his cell for 13 days, but with daily access to a working toilet, was not unconstitutional); see also id. ("Mere exposure to offensive cell odors, such as those of a toilet, does not offend the Constitution.").
B. Unreasonable Length of Detention Claim
The Immigration and Nationality Act grants the government a period of ninety days in which to remove an alien who has been ordered removed from the United States. 18 U.S.C. § 1231(a)(1)(A). During this 90-day period, an alien's detention is mandatory. Id. § 1231(a)(2). The ninety-day removal period begins to run on "[t]he date the order of removal becomes final." Id. § 1231(a)(1)(B)(i). Moreover, an alien ordered removed who has been found inadmissible due to certain criminal convictions, such as a crime involving moral turpitude, "may be detained beyond the removal period." Id. § 1231(a)(6); see also id. § 1182(a)(2)(A)(i)(I).
The Supreme Court of the United States, however, has recognized that the indefinite detention of an alien may raise serious constitutional concerns, and it has concluded that the statute "implicit[ly] . . . limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention." Zadvydas v. Davis, 533 U.S. 678, 689 (2001). "[O]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 699. "[F]or the sake of uniform administration in the federal courts," the Supreme Court recognized a "presumptively reasonable period of detention" of six months from the date when the removal order became final. Id. at 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.
Here, Rojas-Marchan failed to appeal his removal order. As a consequence, his removal order became administratively final on September 18, 2020, when the 30-day period for appeal expired. See 8 C.F.R. § 241.1; 8 C.F.R. § 1241.1(c); see also Aramayo-Escobar v. Bureau of Immigration & Customs Enforcement, No. Civ. 3:CV-05-2140, 2005 WL 2860648, at *2 (M.D. Pa. Nov. 1, 2005). Rojas-Marchan's 90-day removal period, during which his detention was mandated by statute, expired on December 17, 2020—more than three weeks after he mailed his petition to the Court for filing. See 18 U.S.C. § 1231(a)(1), (2). The 6-month period during which his continued detention is presumptively reasonable does not expire until March 18, 2021—more than six weeks from now. See Zadvydas, 533 U.S. at 701. Thus, at this time, Rojas-Marchan's continued detention is presumptively reasonable under Zadvydas. See id.
In his petition, Rojas-Marchan has attempted to rebut this presumption, arguing that his continued detention is unreasonable because immigration and jail officials have taken inadequate measures to mitigate the spread of COVID-19 and he is medically vulnerable due to various health conditions. He also argues that his continued detention is unreasonable due to the "obscene" conditions of his confinement. But for the same reasons stated above with respect to his substantive due process claims, we find these alleged conditions insufficient to render the petitioner's continued detention unreasonable.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that the petition (Doc. 1) be DENIED without prejudice to the filing of a subsequent petition if Rojas-Marchan's detention extends beyond the 6-month presumptively reasonable period and there is no significant likelihood of removal in the reasonably foreseeable future. See Zadvydas, 533 U.S. at 701. Dated: February 3, 2021
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 3, 2021. 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: February 3, 2021
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge