Opinion
CIVIL ACTION NO. 4:20-CV-1651
12-01-2020
PABLO CESAR MARIAZZA-CHAVEZ, Petitioner v. WARDEN CLAIR DOLL, Respondent
(BRANN, D.J.) ()
REPORT AND RECOMMENDATION
I. INTRODUCTION
On September 11, 2020, Petitioner Pablo Cesar Mariazza-Chavez ("Petitioner"), along with seven (7) other United States Immigration and Customs Enforcement ("ICE") detainees at York County Prison, filed a Petition for Writ of Habeas Corpus. (Doc. 1). The Petition is construed as individual actions for habeas relief by each petitioner. 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 the Petition (Doc. 1) be DENIED and DISMISSED WITHOUT PREJUDICE.
II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
On September 11, 2020, seven (7) individuals 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 assigned to each Petition. See Standing Order 20-13. 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. (Doc. 3).
On September 16, 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. Petitioner alleges that he is forty (40) years old and "Suffering From Chronic Lower Back Pain since 2002 and currently takes medication for it. He also suffer [sic] from liver problems (enzymatic Unbalanced Production)." (Doc. 1, ¶ 21(c); Doc. 9, ¶ 3). In his Traverse, he states he also has high blood pressure. (Doc. 9, pp. 3, 5). He alleges these 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 18, 2020, I issued a Show Cause Order (Doc. 5), setting forth an expedited briefing schedule. Respondent filed a Motion for Extension of Time to file a response (Doc. 6), which I granted on September 25, 2020 (Doc. 7). On October 8, 2020, Respondent filed a Response. (Doc. 8). On October 23, 2020, Petitioner filed a Traverse replying to Respondent's Response. (Doc. 9). 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 under 8 U.S.C. § 1226(c). Petitioner is a native and citizen of Venezuela. (Doc. 1, ¶ 21(c)). He has been in ICE custody since July 30, 2020. (Doc. 8-1, Ex. 5). Petitioner was admitted to the United States in Miami, Florida on or about November 28, 1999, with authorization to remain in the country not more than six (6) months. Id. He adjusted his status to that of an F-1 student and was required to complete his studies no later than August 9, 2006. Id. On November 6, 2006, an application to extend his nonimmigrant status was denied due to his failure to carry a full course of study. Id.
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.
On July 8, 2015, Petitioner was served with a Notice to Appear and charged as removable under Sections 237(a)(1)(B) and 237(a)(1)(C)(i) of the Immigration and Nationality Act ("INA") based on remaining in the United States for a period longer than permitted and failing to comply with the conditions of his nonimmigrant status. Id. at p. 3. He was released on bond. Id. On June 4, 2019, Petitioner failed to appear at his removal hearing, and the Immigration Judge (IJ) deemed his applications for relief abandoned and ordered Petitioner removed. (Doc. 8-1, Ex. 3). Petitioner then filed a motion to reopen removal proceedings, which was granted, due to him being in the emergency room the day of the hearing. (See Doc. 8-1, Ex. 4). Petitioner later entered ICE custody on July 30, 2020, following his conviction in Pennsylvania on July 27, 2020 of Theft by Deception. (Doc. 8-1, Ex. 5).
On September 23, 2020, Petitioner was served with additional charges of inadmissibility under Sections 237(a)(2)(A)(ii) and 237(a)(2)(A)(iii) of the INA, based on convictions from February 7, 2007 in Florida of Grand Theft Third Degree; March 30, 2015 in Florida of two counts of Grand Theft Third Degree and of two counts of Burglary/Unoccupied Dwelling; and July 28, 2020 in Pennsylvania of Theft by Deception. (Doc. 8-1, Ex. 6). His removal proceedings are ongoing. IMMIGRATION DUE PROCESS RULINGS IN THE THIRD CIRCUIT
Previously, under authority from 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."Jennings, 138 S. Ct. at 846-47 (emphasis in original).
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.
. . . .
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). Therefore, as-applied due-process challenges to detention under Section 1226(c) survive Jennings. See Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 209-10 (3d Cir. 2020).
Thus, the question remains whether Petitioner's detention is unreasonably long—i.e., a due process violation. The "most important factor" in determining this is the duration of detention. Id. at 211. Petitioner was taken into ICE custody on July 30, 2020. (Doc. 8-1, Ex. 5). At this time, Petitioner has been detained for approximately four (4) 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. See, e.g., 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 *5 (M.D. Pa. July 26, 2018) (concluding detention of fifteen (15) months constitutional given regular progression of proceedings); Carlos A. v. Green, No. 18-741, 2018 WL 3492150, at *5 (D.N.J. July 20, 2018) (concluding detention of just over thirteen months not unconstitutional).
Petitioner's four (4) month detention is not unreasonable. Based on the factors described in Santos, 965 F.3d at 211, and the above cases involving detention of just more than one year, I conclude that Petitioner's detention has not become unreasonably prolonged and does not violate his due process rights.
B. AVAILABILITY OF HABEAS RELIEF FOR CLAIMS BASED ON CONDITIONS OF CONFINEMENT
Petitioner challenges the conditions of his confinement. The Third Circuit recently recognized the viability of a conditions-of-confinement claim through a Section 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. PETITIONER'S CONDITIONS OF CONFINEMENT
Petitioner argues that "Civil Detention During COVID-19 Pandemic Amount [sic] to Punishment." (Doc. 1, p. 14). 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, ¶ 58) (typographical errors in original).
Detainees may not be punished before they are adjudicated guilty. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Therefore, in evaluating the constitutionality of the conditions of confinement of a detainee who is not adjudicated guilty, "the proper inquiry is whether those conditions amount to punishment of the detainee." Id.
Regarding 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.
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 "ICE's response to COVID-19 is alarmingly inadequate." (Doc. 1, ¶ 21(iii)). 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.(Doc. 1, ¶¶ 30, 51).
. . . .
[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.
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 states that "we had one COVID-19 positive individual among us in the same DORM. The COVID-19 positive inmate said to ICE he was tested positive but they did not care they just bring him on that DORM." Id. In his Traverse, he alleges, "One plaintiff who had contracted COVID-19 before is still with us in the same dorm." (Doc. 9, p. 4).
The Centers for Disease Control and Prevention ("CDC") has provided guidance on the management of COVID-19 in detention facilities. (See Doc. 8-1, Ex. 8). Its guidance for detention facilities on isolation references its general guidance on isolation of persons who have tested positive for COVID-19. (Id. at p. 18). It gives the 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 updated Oct. 19, 2020) (footnote omitted) (emphases in original). Petitioner has not alleged any facts that indicate that the detainee "who had contracted COVID-19 before" was moved back into his dorm earlier than the CDC-recommended isolation period.
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. 10, Joseph Dunn Decl.). York County Prison has the capacity to house 2,245 inmates. (Id. ¶ 7). As of October 1, 2020, it housed only 1,267 combined male and female inmates and detainees. (Id. ¶ 7). York County Prison is following guidance from the CDC, including by isolating any detainees who test positive. (Id. ¶¶ 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 alleges that there has been an outbreak of COVID-19 cases at York County Prison, with "more than 189 positive cases officially" as September 4, 2020. (Doc. 1, ¶ 21(iii)). In his Traverse, he states,
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, 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 . . . .(Doc. 9, pp. 2-3). Respondent provided a declaration describing the following COVID-19 case numbers:
a. Since March 2020, at the York County Prison there have been 100 confirmed cases of COVID-19 among ICE detainees. Three of those 100 tested positive prior to entering ICE custody at the York County Prison. As of the morning of October 1, 2020, there were 18 ICE detainees who tested positive for COVID-19 housed in isolation under medical observation consistent with CDC guidelines. 82 ICE detainees who previously tested positive have been cleared and are no longer subject to isolation/quarantine requirements. Additionally, there have been 368 confirmed cases among county inmates, 239 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.(Doc. 8-1, Ex. 10, Joseph Dunn Decl. ¶ 23).
b. Within the York County Prison there have been no hospitalizations among ICE detainees or deaths among ICE detainees or county inmates.
The number of recent positive COVID-19 cases at York County Prison among ICE detainees is significantly higher than it was at the time of several earlier COVID-19 cases 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].
. . . . Petitioners at PCCF have shown that, despite their best efforts, they cannot practice these effective preventative measures. . . . Considering the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk Petitioners in this case, we cannot countenance physical detention in such tightly-confined,
unhygienic spaces. Indeed, we cannot see the rational basis of such a risk and find that the legitimate government interests of reinstated detention are thus negated.Id. at *6 (footnotes omitted). The three released detainees' medical conditions in that case 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.
Here, Petitioner is forty (40) years old and has self-reported chronic lower back pain, "liver problems (enzymatic Unbalanced Production)," and high blood pressure. (Doc. 1, ¶ 21(c); Doc. 9, pp. 3, 5). In his intake screening on July 30, 2020, he reported chronic left ankle pain and constipation, for which he was referred to a medical provider. (Doc. 8-1, Ex. 7, Excerpt of Medical Records). The screening did not indicate abnormal blood pressure or reference liver issues. Id. He tested negative for COVID-19 antibodies in a test administered on July 30, 2020 and negative for COVID-19 in a test administered on August 3, 2020. Id.
According to the CDC, individuals with liver disease and those with high blood pressure "might be at an increased risk" for complications should they contract COVID-19. 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 updated Oct. 16, 2020). The CDC states that "[h]aving chronic liver disease, especially cirrhosis (scarring of the liver), may increase your risk for severe illness from COVID-19." Id.
Petitioner references "liver problems," but he does not allege that he has chronic liver disease or cirrhosis, and his medical records do not indicate that he has these conditions. Further, while Petitioner's self-reported high blood pressure might place him at a higher risk of COVID-19 complications, he did not appear to report this condition upon his intake to ICE custody, and he does not indicate that he is not receiving any needed treatment for it. He 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; see generally 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").
Although the recent increase in COVID-19 cases at York County Prison is troubling, 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 his 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, ¶ 50).
In making this argument, Petitioner cites to an apparent 2019 Inspector General report. (Doc. 1, ¶¶ 49-50). According to the Petition, the report found that "ICE 'does not adequately hold detention facility contractors accountable for not meeting performance standards.'" Id. at ¶ 49.
The Eighth Amendment prohibits prison officials from acting with "'deliberate indifference' to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994). This standard "is more exacting" than a due-process claim based on conditions of confinement. See Thakker 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 COVID-19 cases, it has 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. York County Prison also made additional recent changes to its COVID-19 protocols:
In response to COVID-19, on September 2, 2020, the York County Prison updated their protocol to require that all staff or personnel entering the facility wear a N95 mask in addition to previously provided safety glasses. On September 11, 2020, all prison and contracted employees were also provided a face shield as an alternative option to safety glasses.(Doc. 8-1, Ex. 10, ¶ 24(a)). Petitioner does not allege any COVID-19 symptoms, lack of treatment for them, 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. 8-1, Ex. 10). I cannot conclude on the record before me that Petitioner has demonstrated conscious disregard by prison officials for the risks posed by COVID-19 and his medical condition. Respondent's conduct does not constitute deliberate indifference.
[The next page contains the Recommendation]
V. RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED THAT:
(1) The Petition be DENIED and DISMISSED WITHOUT PREJUDICE;Date: December 1, 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: December 1, 2020
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge