Opinion
CIVIL ACTION NO. 5:20-CV-128-KS-MTP
07-17-2020
Luis F. ORELLANA LLUVICURA, Petitioner v. Shawn GILLIS, Warden, Adams County Correctional Facility, in his official capacity, Respondent
James Paul Tinsley, Middleton & Tinsley Law Firm, Tupelo, MS, Edgar L. Fankbonner, Goldberg & Dubin, PC, New York, NY, for Petitioner. Angela Givens Williams-Federal Gov, U.S. Attorney's Office, Jackson, MS, for Respondent.
James Paul Tinsley, Middleton & Tinsley Law Firm, Tupelo, MS, Edgar L. Fankbonner, Goldberg & Dubin, PC, New York, NY, for Petitioner.
Angela Givens Williams-Federal Gov, U.S. Attorney's Office, Jackson, MS, for Respondent.
ORDER
KEITH STARRETT, UNITED STATES DISTRICT JUDGE
On May 6, 2020, Petitioner, an alien illegally present in the United States, filed a habeas petition [1] seeking his immediate release from detention at the Adams County Detention Center ("ACDC"). He was originally detained by INS in 2001 and released on bond. In December 2001, he failed to appear for an immigration court hearing, and the court ordered that he be removed from the United States. Several years later, in September 2017, Immigration and Customs Enforcement ("ICE") arrested Petitioner and detained him in ACDC awaiting final removal to his country of origin.
Petitioner alleges that he has been diagnosed with COVID-19, and that he is seriously ill, suffering from nausea, body aches, headache, cough, and a fever. He alleges that ACDC officials placed him in solitary confinement, and that they have not provided adequate medical treatment. He contends that his continued detention in these circumstances violates his rights to substantive and procedural due process, and he filed the instant habeas petition under 28 U.S.C. § 2241, seeking immediate release.
In a teleconference held on May 19, 2020, the Court directed the parties to submit briefing on the question of whether the instant petition was appropriately brought under 28 U.S.C. § 2241. "Generally, § 1983 suits are the proper vehicle to attack unconstitutional conditions of confinement and prison procedures. A habeas petition, on the other hand, is the proper vehicle to seek release from custody." Carson v. Johnson , 112 F.3d 818, 820 (5th Cir. 1997). The distinction between the two mechanisms can sometimes get blurry, though. So, the Fifth Circuit adopted a bright-line rule: "If a favorable determination ... would not automatically entitle the prisoner to accelerated release, the proper vehicle is a § 1983 suit." Id. (quoting Orellana v. Kyle , 65 F.3d 29, 31 (5th Cir. 1995) ).
But "merely requesting, as relief, release from custody does not convert the action into one under the habeas statute." Umarbaev v. Moore , 2020 WL 3051448, at *4 (N.D. Tex. June 6, 2020) (citing cases). "[H]abeas is not available to review questions unrelated to the cause of detention. Its sole function is 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). "[T]he jurisdiction under the writ is confined to an examination of the record, with a view to determining whether the person restrained of his liberty is detained without authority of law." Id. at 936 (quoting Harlan v. McGourin , 218 U.S. 442, 445, 31 S. Ct. 44, 46, 54 L. Ed. 1101 (1910) ).
In this case, Petitioner alleges that he has contracted COVID-19, and that "he is not receiving adequate medical treatment." Petition at 1, Orellana Lluvicura v. Gillis , No. 5:20-CV-128-KS-MTP (S.D. Miss. May 6, 2020), ECF No. 1. He further alleges that ICE "refuses to exercise its discretion to release detainees from its custody." Id. at 2. Petitioner contends that any civil detention during the COVID-19 pandemic is punitive and constitutes deliberate indifference to his due process rights. Id. at 8, 12, 14. He avers that "continued imprisonment violates [his] due process rights both by constituting deliberate indifference to serious medical harm and by failing to provide procedural safeguards commensurate with the serious deprivation of life and liberty that he faces." Id. at 3. Petitioner demands "immediate release." Id.
The operative pleading [1] only resembles a § 2241 petition in that Petitioner demands immediate release from detention. As noted above, "merely requesting, as relief, release from custody does not convert the action into one under the habeas statute." Umarbaev , 2020 WL 3051448 at *4. Petitioner has not challenged the cause of his detention. See Pierre , 525 F.2d at 935-36. Indeed, he admits that he is an alien illegally present in the United States, and that he failed to appear for an immigration court hearing nineteen years ago. It is undisputed that ICE has authority to detain him pending final removal, see, e.g. 8 U.S.C. §§ 1226, 1231, and the Second Circuit affirmed the denial of his motion for rescission of the removal order. See Exhibit 2 to Response, Orellana Lluvicura v. Gillis , No. 5:20-CV-128-KS-MTP (S.D. Miss. May 29, 2020), ECF No. 15-2.
Moreover, even if Petitioner's claims regarding Respondent's deliberate indifference to his health care needs are true, it does not necessarily follow that Petitioner must be immediately released. The Court could grant injunctive relief regarding Petitioner's conditions of confinement, for example. Therefore, Petitioner's claims are properly asserted under § 1983. Carson , 112 F.3d at 820.
Accordingly, the Court concludes that Petitioner's claims are not cognizable under § 2241. See Beswick v. Barr , 2020 WL 3520312, at *2-*3 (S.D. Miss. June 29, 2020) ; Umarbaev , 2020 WL 3051448 at *6 ; Leyva-Ruiz v. Julian , 2020 WL 3335685, at *2 (S.D. Miss. Feb. 4, 2020) ; Haar v. Carr , 2020 WL 3895298, at *1 (N.D. Tex. July 10, 2020) ; Sacal-Micha v. Longoria , 2020 WL 1815691, at *6 (S.D. Tex. Apr. 9, 2020) ; Rosa v. McAleenan , 2019 WL 5191095, at *18-*19 (S.D. Tex. Oct. 15, 2019). The Court dismisses the Petition for lack of subject matter jurisdiction and denies the pending motions [26] [3] as moot .
SO ORDERED AND ADJUDGED this 17th day of July, 2020.