Opinion
No. 1:20-CV-00248-H
2020-11-24
Juan BARBOSA, Petitioner, v. William BARR, et al., Respondents.
Juan Barbosa, Anson, TX, pro se.
Juan Barbosa, Anson, TX, pro se.
ORDER
JAMES WESLEY HENDRIX, United States District Judge
Petitioner Juan Barbosa, a detainee proceeding pro se, filed an emergency motion for temporary restraining order (TRO) and temporary release in response to the COVID-19 pandemic. The motion was docketed as a petition for a writ of habeas corpus under 28 U.S.C. § 2241, and Petitioner paid the $5.00 filing fee applicable to habeas cases. Petitioner asserts that he is entitled to immediate release because the ongoing COVID-19 pandemic has created unconstitutional conditions of confinement at the Bluebonnet Detention Center (BBDC). As explained below, the Court finds that the emergency motion for TRO must be denied because he has failed to show a substantial likelihood of success on the merits. Additionally, the habeas petition must be dismissed for lack of subject matter jurisdiction.
1. Background
Petitioner states that he is a 56-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. (Dkt. No. 1 at 4.) Petitioner asserts that he is subject to mandatory detention under 8 U.S.C. § 1226(c), and he "does not challenge the authority that detains him ... but rather he is challenging the conditions of his confinement." (Dkt. No. 1 at 7.) He is currently confined in the BBDC in Anson, Texas.
A. COVID-19 and Petitioner's Health Conditions
Courts have recognized that the ongoing COVID-19 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. 2020). The pandemic is threatening all communities right now, both in the free world and inside detention facilities. The Center for Disease Control (CDC) recommends that individuals wash their hands often, practice social distancing, and wear masks to mitigate the spread of the virus. Petitioner alleges that his age and history of back pain and kidney problems place him in the category of individuals at higher risk for serious health consequences if he were to contract COVID-19. (Dkt. No. 1 at 4–5.)
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited Nov. 24, 2020).
There is no doubt that the virus has significantly impacted the BBDC. Petitioner points out that the BBDC has reported over 300 confirmed cases in detainees. Indeed, an outbreak over the summer resulted in the BBDC topping the list as the ICE detention center with the most cases. But by the time Petitioner filed his motion four months later, thankfully, the number of active cases among detainees at the BBDC has dropped significantly. And fortunately, no detainees at the BBDC have died after testing positive for COVID-19.
See https://www.ice.gov/coronavirus (last visited Nov. 24, 2020) (reporting 5 active cases under monitoring or isolation among detainees at the BBDC).
See id.
B. Petitioner's Allegations Regarding the BBDC
Petitioner claims that the conditions at the BBDC do not allow for proper social distancing. (Dkt. No. 1.) He alleges that his dorm is about 67% full—with 55 detainees living in a dorm with a capacity of 82. (Id. at 6.) He states that the beds are only two feet apart and that the detainees share tablets, toilets, bathroom, and phones. (Id. ) He eats in the dining hall, seated only a foot away from other detainees. (Id. ) He also complains that he is forced to interact with officers and workers who seldom wear masks or other personal protective equipment. (Id. ) He acknowledges that the BBDC "has been doing what they can do to limit the spread of the disease, however," he complains that they cannot eliminate or even mitigate the risk to his satisfaction. (Id. )
Petitioner goes on to explain that Respondents have implemented several measures in response to the pandemic. He acknowledges that ICE has sent "Field Medical Coordinators" to oversee clinical services at local facilities. (Dkt. No. 1 at 6.) Additionally, Respondents have established processes for testing symptomatic detainees, isolating those with a suspected or confirmed case, tracing any potential community exposure, and providing medical treatment. (Id. ) And Respondents have kept additional medical staff on site at the BBDC, begun screening staff members and visitors, limited recreation to allow for social distancing, increased the cleaning and disinfection of the facility, and provided additional sanitation measures to detainees. (Id. at 7.)
Despite these additional safety protocols, Petitioner asserts that "he is unable to practice social distancing, use hand sanitizer, or wash his hands regularly, making it all but impossible to protect himself against COVID-19." (Dkt. No. 1 at 7.) Petitioner alleges that the current conditions of his confinement—or the fact that he is confined during a global pandemic—is unduly punitive. (Id. ) He argues, then, that the fact that he is subject to mandatory detention does not negate his argument that the conditions of confinement may be unconstitutional. Thus, he asserts that he is entitled to immediate injunctive relief—his release from detention.
2. Standards Applicable to Temporary Restraining Orders
"An injunction is an extraordinary remedy and should not issue except upon a clear showing of possible irreparable injury." Lewis v. S.S. Baune , 534 F.2d 1115, 1121 (5th Cir. 1976). A party seeking a preliminary injunction or temporary restraining order must prove four elements:
1. a substantial likelihood of success on the merits of his case;
2. a substantial threat that the plaintiff will suffer irreparable injury;
3. that the threatened injury outweighs any harm that the injunctive order might cause the defendant; and
4. that the injunction is in the public interest.
Women's Med. Ctr. v. Bell , 248 F.3d 411, 419 n.15 (5th Cir. 2001). Injunctive relief will be denied if the movant fails to prove any of these four elements. Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana , 762 F.2d 464, 472 (5th Cir. 1985). A federal court may issue a temporary restraining order without notice to the adverse party only if "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A).
As courts of limited jurisdiction, federal courts must "affirmatively ascertain subject-matter jurisdiction before adjudicating a suit." Nianga v. Wolfe , 435 F. Supp. 3d 739, 743 (N.D. Tex. 2020). "A party seeking a TRO cannot establish a ‘substantial likelihood of success on the merits’ of his claim if the court concludes that it lacks jurisdiction to adjudicate the claim altogether." Id. ; see also Obaretin v. Barr, No. 3:20-CV-2805, 2020 WL 5775822 (N.D. Tex. Sept. 11, 2020), rec. accepted , 2020 WL 5761085 (N.D. Tex. Sept. 28, 2020). 3. Conditions-of-Confinement Claims
Federal law provides two distinct avenues to relief for complaints related to confinement: 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. "[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." Rios v. Commandant, U.S. Disciplinary Barracks , 100 F. App'x 706, 708 (10th Cir. 2004). Stated differently, "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." Archilla v. Witte , 2020 WL 2513648, at *12 (N.D. Ala. May 15, 2020). For example, a petitioner's allegations that he was exposed to asbestos and mold in prison could only be pursued as a civil-rights complaint, and his request for a reduction in his sentence did not make habeas review available. 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). 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).
Courts in this circuit have consistently applied this well-established rule to pandemic related conditions claims. A detainee's allegations that immigration center officials cannot protect him from contracting COVID-19 is, at its core, a challenge to the conditions of confinement. Sacal-Micha , 449 F.Supp.3d at 663–64. Likewise, a detainee's claims that his detention makes it nearly impossible to exercise the recommended practices like social distancing, proper cleaning, and personal hygiene are not cognizable under the habeas statute, despite his request for immediate release. Cureno Hernandez v. Mora , 467 F.Supp.3d 454 (N.D. Tex. 2020).
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 that 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.
In short, pandemic-related conditions unrelated to the cause or duration of confinement do not entitle a petitioner to accelerated release. Accord Livas v. Myers , 455 F.Supp.3d 272, 281–83 (W.D. La. 2020) ; Provines v. Wilson , No. 4:20-CV-00475, 2020 WL 2762563 (N.D. Tex. May 20, 2020) ; Ambriz v. United States , 465 F.Supp.3d 630 (N.D. Tex. 2020).
4. Analysis
Petitioner verified his allegations with a declaration under penalty of perjury. But he has not demonstrated an immediate risk of irreparable injury, loss, or damage. Moreover, the facts that he alleges do not show that he is entitled to the relief he seeks. He seeks habeas relief, but his claims are not cognizable under the habeas corpus statute. As a result, he has failed to show a substantial likelihood of success on the merits of his claim and he is not entitled to the extraordinary remedy he seeks.
A. Petitioner cannot show that he is likely to succeed on the merits because the Court lacks jurisdiction over his conditions-of-confinement claims in the habeas context.
Given the above precedent, Petitioner's complaints are not cognizable under Section 2241. 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.
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 addressing any less drastic corrective measures. Petitioner's allegations alone fall well short of supporting the extraordinary remedy he seeks. Notably, Petitioner relies on a preliminary injunction issued by the United States District Court for the Central District of California. See Fraihat v. U.S. Imm. And Customs Enforcement , 445 F.Supp.3d 709 (C.D. Cal. 2020) (appeal pending in Ninth Circuit No. 20-55634). There, the district court provisionally certified a class of higher-risk immigration detainees, but the court did not order their immediate release. Rather, the court required the defendants to identify high-risk detainees and to conduct individualized custody determinations on a case-by-case basis.
Petitioner here asks the Court to greatly expand the already extraordinary remedy granted by the California court. He requests that the Court step in and order his release, taking all discretion away from the officials who hold him in custody without giving them an opportunity to respond. He acknowledges that he is subject to mandatory detention, but he insists that the pandemic somehow overrides the lawfulness of that detention. And Petitioner provides no limiting principle for his argument. He argues that he must be released—despite his criminal history and regardless of the legal authority for his mandatory detention—because he has chronic medical conditions. Although Petitioner does not expressly request relief on behalf of any other detainee, he essentially argues that all detainees, whether confined at the BBDC or in other facilities, must be released if they have any underlying health concern to any degree. His inability to provide any realistic limitation precludes the Court from granting him the relief he seeks.
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 shown to be dangerous and unconstitutional—do not nullify an otherwise lawful detention. This conclusion is consistent with established Fifth Circuit law. In sum, Petitioner attacks his conditions of confinement independent 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. 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, he has not met his burden to show the likelihood of success on the merits. The Court concludes that the request for TRO must be denied and the petition for writ of habeas corpus must be dismissed for lack of subject-matter jurisdiction.
See Pierre v. United States , 525 F.2d 933, 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).
B. Even if the Court construed the underlying claims in a civil-rights context, Petitioner has not shown a likelihood of success on the merits.
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 v. Wolfish , 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). 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. This requires a showing that either "serious injury and death [a]re the inevitable results of the [institution's] gross inattention to the needs of inmates with chronic illness," id. , or that a specific rule or policy "caused ... extreme suffering or resulted in adverse medical outcomes serious enough to establish a constitutional violation." Cadena v. El Paso County , 946 F.3d 717, 728 (5th Cir. 2020).
Here, 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 earlier outbreak at the BBDC to establish his claim. But he acknowledges that Respondents have taken considerable steps to mitigate the risk of infection and protect detainees. And despite the outbreak at the BBDC over the summer, there are now only five detainees at the BBDC who are under isolation or monitoring for COVID-19. Petitioner has failed to allege any facts that show either that serious injury or death are the inevitable results of the BBDC's failings or that any policy has caused extreme suffering or resulted in adverse medical outcomes serious enough to establish a constitutional violation. As a result, Petitioner has failed to show a likelihood of success on his claim that the conditions of his confinement at the BBDC violate his due process rights. Thus, the emergency motion for TRO must be denied.
This finding is limited to the analysis of Petitioner's request for an emergency TRO and does not prejudice his right to refile his claims in the context of a civil-rights complaint.
5. Conclusion
For the reasons discussed above, the Court finds that Petitioner has failed to show a substantial likelihood of success on the merits of his claims, and his emergency motion for temporary restraining order must be denied. The petition for writ of habeas corpus is dismissed for lack of subject matter jurisdiction. Any pending motions are denied. The Court will enter judgment accordingly.