Opinion
CIVIL ACTION NO. 4:20-CV-1354
11-30-2020
DARREN CYRRUS ALADE, Petitioner v. WARDEN CLAIR DOLL, Respondent
(MARIANI, D.J.) ()
REPORT AND RECOMMENDATION
I. INTRODUCTION
On August 3, 2020, Petitioner Darren Cyrrus Alade, ("Petitioner"), along with nineteen (19) other Immigration and Customs Enforcement ("ICE") detainees at York County Prison, filed a Petition for Writ of Habeas Corpus (Doc. 1). This Petition is construed to be individual actions for habeas relief by each of the petitioners. See Standing Order 20-13. In his Petition, Petitioner seeks release from ICE custody due to concerns of the health risks of contracting COVID-19 and the prison's ability to prevent the spread of COVID-19 within the facility. For the reasons below, I recommend that the Petition be DENIED and DISMISSED WITHOUT PREJUDICE.
II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
On August 3, 2020, twenty (20) individuals currently detained by ICE at York County Prison filed a joint petition under 28 U.S.C. § 2241 seeking immediate release from custody due to the risk of severe illness in the prison setting posed by the COVID-19 pandemic. (Doc. 1). Along with the Petition, these individuals filed a "Motion to Expedite" (Doc. 2). The joint petition and Motion to Expedite were docketed separately, with a unique case number being assigned to each Petition. (Doc. 5). Then, an Order was issued directing each Petitioner to either pay the required filing fee or file a motion seeking leave to proceed in forma pauperis.
On August 28, 2020, Petitioner paid the filing fee. 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. Regarding his health, Petitioner alleges that he
was tested positive for COVID-19, on [sic] George W. Hill Correctional facility and brought [to] York County Prison by ICE on June 29, 2020 and put on the same dorm with [other detainees], share everything together without no treatment not even a lot bit medication, also has anxiety, and heart problem."(Doc. 1, ¶ 21(e) at p. 6). In his traverse, he further alleges that he
is 26 years old native and citizen of Liberia who has been Detained by ICE at YORK COUNTY PRISON, for 2 months and has Suffered from COVID-19 as he has tested Positive in Delaware County Prison and After his transfer to ICE custody Prison knowing he has been infected they put him with general population. He currently suffers from several serious health conditions, including Anxiety . . . .(Doc. 9, ¶ 3 at p. 5). He asserts that his medical conditions expose him to "an imminent risk of death or serious injury if exposed to COVID-19." (Doc. 1, ¶ 21). As relief, Petitioner requests immediate release from ICE custody.
On September 1, 2020, I issued a Show Cause Order (Doc. 6), setting forth an expedited briefing schedule. On September 8, 2020, Respondent filed a Response. (Doc. 8). On September 21, 2020, Petitioner filed a traverse in response to Respondent's filing (Doc. 9) as well as a Supplement to his Petition (Doc. 10). This matter is now ripe for disposition.
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 to seek habeas relief under.
IV. DISCUSSION
A. DUE PROCESS
Petitioner is detained pursuant to 8 U.S.C. § 1226(c). He is a native and citizen of Liberia and was admitted to the United States as a lawful permanent resident in September 1997. (Doc. 8-1, Ex. 1, Notice to Appear, p. 1). He is twenty- six (26) years old. (Doc. 9 ¶ 3). On January 10, 2019, Petitioner was convicted in Pennsylvania of Forgery and sentenced to twenty-three months' imprisonment. Id. Petitioner became known to ICE during routine ICE activities at Delaware County Prison, where Petitioner was confined for that conviction, and he has been in ICE custody since June 29, 2020. (Doc. 8-1, Ex. 2, Record of Deportable/Inadmissible Alien, p. 2). Petitioner was served with a Notice to Appear on June 29, 2020 and charged as removable under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act. (Doc. 8-1, Ex. 1). Petitioner filed an I-589, Application for Asylum and for Withholding of Removal, on August 31, 2020. (Doc. 8-1, Ex. 3, Application for Asylum). Petitioner was scheduled for a hearing before an immigration judge on September 2, 2020. (Doc. 8-1, Ex. 4, Notice of Hearing). Respondent states Petitioner was then scheduled for an October 27, 2020 hearing on the merits of his applications for relief from removal. (Doc. 8, p. 9). Petitioner's removal proceedings are ongoing.
Petitioner does not specifically address the length or the legality of his detention. However, because he appears to raise due process concerns, I find that it is appropriate to address whether Petitioner's continued detention violates his due process rights.
Due Process Legal Analysis in the Third Circuit
Previously, under authority from the United States Court of Appeals for the Third Circuit, there were limits to the Government's authority to detain individuals under Section 1226(c) without an opportunity to be considered for bond. See Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 473 (3d Cir. 2015); Diop v. ICE/Homeland Sec., 565 F.3d 221, 233 (3d Cir. 2011). In Chavez-Alvarez, the Third Circuit "read a reasonable time limit into the statute, relying on the Court's earlier decision in Diop, which employed the doctrine of constitutional avoidance to come to this conclusion." Coello-Udiel v. Doll, No. 3:17-CV-1414, 2018 WL 2198720, at *3 (M.D. Pa. May 14, 2018) (citing Chavez-Alvarez, 783 F.3d at 475; Diop, 656 F.3d at 231).
However, in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme Court rejected the interpretation of an implicit time limit in Section 1226(c). See Jennings, 138 S. Ct. at 846-47. In Jennings, the Supreme Court stated:
[Section] 1226(c) does not on its face limit the length of the detention it authorizes. In fact, by allowing aliens to be released "only if" the Attorney General decides that certain conditions are met, § 1226(c) reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. And together with § 1226(a), § 1226(c) makes clear that detention of aliens within its scope must continue "pending a decision on whether the alien is to be removed from the United States." § 1226(a).
In a reprise of their interpretation of § 1225(b), respondents argue, and the Court of Appeals held, that §1226(c) should be interpreted to include an implicit 6-month time limit on the length of mandatory detention. Once again, that interpretation falls short of a "plausible statutory construction."
In defense of their statutory reading, respondents first argue that § 1226(c)'s "silence" as to the length of detention "cannot be construed to authorize prolonged mandatory detention, because Congress must use 'clearer terms' to authorize 'long-term detention.'" Brief for Respondents 34 (quoting Zadvydas, 533 U.S., at 697, 121 S.Ct. 2491). But § 1226 is not "silent" as to the length of detention. It mandates detention "pending a decision on whether the alien is to be removed
from the United States," § 1226(a), and it expressly prohibits release from that detention except for narrow, witness-protection purposes. Even if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly may not transmute existing statutory language into its polar opposite. The constitutional-avoidance canon does not countenance such textual alchemy.Jennings, 138 S. Ct. at 846-47 (emphasis in original).
. . . .
Respondents next contend that § 1226(c)'s limited authorization for witness-protection does not imply that other forms of release are forbidden, but this argument defies the statutory text. By expressly stating that the covered aliens may be released "only if' certain conditions are met, 8 U.S.C. § 1226(c)(2), the statute expressly and unequivocally imposes an affirmative prohibition on releasing detained aliens under any other conditions.
. . . .
We held that § 1226(c) mandates detention of any alien falling with its scope and that detention may end prior to the conclusion of removal proceedings "only if" the detained alien is released for witness protection purposes.
In light of the Jennings decision, this Court has held that the Third Circuit's decisions in Chavez-Alvarez and Diop "have been abrogated, since they relied on the doctrine of constitutional avoidance to read a reasonable time limitation into the statute." Coello-Udiel, 2018 WL 2198720, at *3. Thus, Petitioner is not entitled to a bond hearing under Chavez-Alvarez or Diop. See, e.g., Vurimindi v. Lowe, No. 3:19-CV-0007, 2020 WL 730354, *5 (M.D. Pa. Feb. 13, 2020). My analysis does not end with Jennings.
The Jennings decision did not, however, reach the merits of the constitutionality argument related to Section 1226(c). "It is unclear under current Supreme Court precedent at what point a detention pursuant to § 1226(c) becomes unreasonable without a hearing, making continued detention unconstitutional in a particular case." Coello-Updiel, 2018 WL 2198720, at *3. The Third Circuit has stated that "Jennings did not call into question [the] constitutional holding in Diop that detention under § 1226(c) may violate due process if unreasonably long." Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 278 (3d Cir. 2018).
Petitioner's Detention
Thus, the question remains whether Petitioner's detention is unreasonably long—i.e., a due process violation. Petitioner was first taken into ICE custody on June 29, 2020. (Doc. 8-1, Ex. 2, p. 2). At this time, Petitioner has been detained for just more than three (3) months.
Following the Jennings decision, this Court, and other district courts in the Third Circuit, have found that detention under Section 1226(c) for just over a year did not rise to the level of a due process violation. Dyrden v. Green, 321 F.Supp.3d 496, 502 (D.N.J. 2018) (concluding detention for just over a year not unconstitutional); Fernandez v. Lowe, No. 3:17-CV-2301, 2018 WL 3584697, at *4 (M.D. Pa. July 26, 2018) (finding detention for fifteen months not unconstitutional given the regular progression of the proceedings); Carlos A. v. Green, No. 18-741, 2018 WL 3492150,a t*5 (D.N.J. July 20, 2018) (concluding detention for just over thirteen months not unconstitutional). Significantly longer periods of detention, even in the absence of bad faith, have been found to be so prolonged that it has resulted in an unconstitutional application of Section 1226(c). See, e.g., Williams v. Hoover, No. 3:19-CV-1619, 2020 WL 905600, *2-3 (M.D. Pa. Feb. 25, 2020) (Munley, J.) (concluding that twenty months' detention was unreasonably prolonged). In Williams, a bond hearing was ordered. Id. at *3.
The government has appealed that order (3:19-CV-1619 (Doc. 11), USCA Case No. 20-1886).
Here, Petitioner's as-applied challenge fails. As noted above, Petitioner has been detained now for approximately five (5) months. This is well within the timeframes that Courts in this district have upheld as reasonable. Moreover, nothing in the Petition or in the record suggests "that the government has improperly or unreasonably delayed him for any purpose other than the resolution of his removal proceedings." Coello-Updiel, 2018 WL 2198720, at *4. At this time, Petitioner's detention does not violate his due process rights.
B. AVAILABILITY OF HABEAS RELIEF FOR CLAIMS BASED ON CONDITIONS OF CONFINEMENT
Petitioner also challenges the conditions of his confinement. The Third Circuit recently recognized the viability of a conditions-of-confinement claim through a § 2241 petition. Hope v. Warden York Cty. 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 28 to 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 that "[w]e 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 that Petitioner may pursue his conditions-of-confinement claim through a petition for a writ of habeas corpus under Section 2241.
C. CONDITIONS OF CONFINEMENT
Petitioner appears to argue that his detention is unconstitutional punishment. In his "Legal Framework" section, Petitioner 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, ¶ 59) (typographical errors in original).
Detainees may not be punished before they are adjudicated guilty. Bell v. Wolfish, 441 U.S. 520, 535 (1979) ("In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.").
Regarding the determination of whether conditions imposed on a detainee 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.Id. at 538-39 (alterations in original).
The Supreme Court also noted in making this determination 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.
In Union County Jail Inmates v. Di Buono, 713 F.2d 984 (3d Cir. 1983), 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, 713 F.2d at 992. 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.
Here, Petitioner argues that the conditions at York County Prison are "alarmingly inadequate." (Doc. 1, ¶ 22(iii)). He highlights the impossibility of maintaining social distancing:
[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, ¶ 52).
Petitioner also alleges that detainees and inmates at York County Prison who test positive for COVID-19 are not being removed from the general population there. Id. at ¶ 20. He alleges that
from July 20, 2020 to July 23, 2020 we registered 15 new cases of COVID- 19 in York County Prison, and we had one COVID-19 positive individual among us in the same DORM. The [C]OVID-19 positive inmate said to ICE he [ ] tested positive but they did not care they just bring him on that dorm . . . .(Doc. 1, ¶ 20). In his traverse, Petitioner alleges that there is a
new Out-Break in the Prison were 222 Inmates/Detainees have tested Positive for COVID-19 until 09 September, 2020. Petitioners request this Court to take these new Prison Condition and the figures in consideration while making the decision. From 2nd to 4th September, 2020 YCP has 20 Positive COVID-19 cases and than from 5th to 9th September, 2020 YCP has 32 Positive COVID-19 cases and from 9th to 13 September, 2020 YCP has 93 COVID-19 cases . . . .(Doc. 9, pp. 2). In a Supplement to his Petition, Petitioner alleges that thirteen (13) detainees who tested positive for COVID-19 "around the end of August" and who "became better" were transferred into his dorm on September 16, 2020, without being tested again. (Doc. 10, p. 3).
The CDC has provided guidance on the management of COVID-19 in detention facilities. (Doc. 9-1, Ex. 7). Its guidance for detention facilities on isolation references its general guidance on home isolation of persons who have tested positive for COVID-19. (Doc. 9-1, p. 40). 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 CDC, Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings, https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html (last accessed Sept. 23, 2020). The CDC provides following recommendations:
For most persons with COVID-19 illness, isolation and precautions can generally be discontinued 10 days after symptom onset and resolution of fever for at least 24 hours, without the use of fever-reducing medications, and with improvement of other symptoms.
A limited number of persons with severe illness may produce replication-competent virus beyond 10 days that may warrant extending duration of isolation and precautions for up to 20 days after symptom onset; consider consultation with infection control experts.
CDC, Duration of Isolation and Precautions for Adults with COVID-19: Recommendations, https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isolation.html (last accessed Sept. 23, 2020) (footnote omitted). Petitioner has not alleged any facts that indicate York County Prison deviated from this CDC guidance by moving the thirteen (13) detainees who tested positive for COVID-19 at the end of August into the same dorm as Petitioner on September 16, 2020.
For persons who never develop symptoms, isolation and other precautions can be discontinued 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.
Respondent has provided support that York County Prison has taken steps to reduce detainees' risk of contracting COVID-19. (See Doc. 8-1, Ex. 8, Joseph Dunn Decl.). York County Prison has the capacity to house 2,245 inmates. (Id. ¶ 7). As of September 4, 2020, it housed only 1,306 combined male and female inmates and detainees. (Id. ¶ 7). York County Prison is following guidance from the Centers for Disease Control and Prevention (CDC), including by isolating any detainees who test positive. (Doc. 8-1, ¶¶ 9, 10, 14). 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. (Id. ¶ 16). York County Prison has increased sanitation frequency, provides sanitation supplies throughout the housing units, and cleans all high-traffic areas at least four times each day. (Id. ¶ 18). YPC issues one bar of soap per detainee, but it will immediately issue a replacement when that bar is exhausted. (Id.).
Despite these protective measures, Petitioner attached to his traverse a York Daily Record article from September 2, 2020 indicating that York County Prison officials conducted 1,091 nasal swab tests in August and received 169 positive results. (Doc. 9-1, p. 16). Most inmates who tested positive did not have symptoms. Id. Some tests were still pending at the time of the article's publication. (Id.). According to an ICE official, as of September 4, 2020, there had been fifty-four (54) confirmed cases of COVID-19 among ICE detainees since March 2020. (Doc. 8-1, Joseph Dunn Decl. ¶ 23). Forty-nine (49) of those detainees are were housed in medical isolation as of September 4, 2020. Id. No detainees or inmates had died of COVID-19 at that point. Id.
The number of positive COVID-19 cases at York County Prison among ICE detainees is currently higher than it was at the time of several earlier COVID-19 cases that came before this Court. See, e.g., Verma v. Doll, No. 4:20-CV-14, 2020 WL 1814149, at *1, 4 (M.D. Pa. Apr. 9, 2020) (noting one York County Prison ICE detainee had tested positive for COVID-19 at time of case in April 2020); Thakker v. Doll (Thakker I), 451 F. Supp. 3d 358, 371 n.15 (M.D. Pa. 2020) (noting report of one positive test among employees at Pike County Correctional Facility (PCCF)). In Thakker II, 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. 2020 WL 2025384, at *6, 11. 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].Id. at *6 (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.
. . . . 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.
Petitioner here is 26 years old (Doc. 9, ¶ 3) and reports having anxiety and a heart problem (Doc. 1, ¶ 21). In his intake screening on June 30, 2020, following his arrival in ICE custody, petitioner described having dyspepsia, anxiety, and insomnia. (Doc. 8-1, Ex. 5, p. 2). Petitioner tested negative for COVID-19 antibodies in a test administered on June 30, 2020, and he tested negative for COVID-19 in a test administered on July 14, 2020 (Doc. 8-1, Ex. 5, pp. 1, 7). Petitioner asserts that he tested positive for COVID-19 in Delaware County Prison, prior to his transfer to ICE custody. (Doc. 9, ¶ 3).
Of Petitioner's self-reported conditions, none are CDC-recognized risk factors. See CDC, Coronavirus 2019, People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last accessed October 8, 2020). The CDC lists certain "[h]eart conditions, such as heart failure, coronary artery disease, or cardiomyopathies" as risk factors. Petitioner does not specify what his "heart problem" is, and his medical records do not indicate it either. Petitioner has not shown that his conditions of confinement are excessive given the government's legitimate purposes in detention and the practical considerations of that detention, see Hope, 972 F.3d at 326, even considering the recent increase in COVID-19 cases at York County Prison. Petitioner has not shown that he is confined with individuals who are positive for COVID-19, and Respondent provided support showing that York County Prison is isolating such inmates or detainees. Petitioner has not shown that this confinement constitutes unconstitutional punishment. Therefore, on this record, Petitioner is not entitled to relief based on the conditions of his confinement.
D. DELIBERATE INDIFFERENCE
In addition to Petitioner's conditions-of-confinement argument, 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, ¶ 51).
In making this argument, Petitioner cites to an apparent 2019 Inspector General report. (Doc. 1, ¶¶ 50-51). According to the Petition, the report found that "ICE 'does not adequately hold detention facility contractors accountable for not meeting performance standards." Id. at ¶ 50. --------
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).
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). A detainee can establish deliberate indifference "even if detention officials afford some care to the detainee," however, "'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 (3d Cir. 2020) (quoting Monmouth Cty. 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 officials have 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, and it follows CDC guidelines on the quarantine and isolation of suspected and confirmed cases of COVID-19. Petitioner received a medical screening on June 30, 2020 and a COVID-19 test on July 14, 2020. (Doc. 8-1, Ex. 5). He does not allege any COVID-19 symptoms, lack of treatment for them, or exposure to individuals who currently 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. I am sympathetic to Petitioner's concerns about COVID-19, but I cannot conclude on the record before me that he has demonstrated conscious disregard by prison officials for the risks posed by COVID-19 and his medical conditions. 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;Date: November 30, 2020
(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.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
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.Date: November 30, 2020
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge