Opinion
CIVIL NO. 4:20-CV-1744
12-01-2020
ESEN KEKTYSHEV, Petitioner v. WARDEN CLAIR DOLL, Respondent
(MARIANI, D.J.) ()
REPORT AND RECOMMENDATION
I. INTRODUCTION
On September 24, 2020, Petitioner Esen Kektyshev ("Petitioner"), along with ten (10) 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 will recommend the Petition (Doc. 1) be denied and dismissed without prejudice. II. FACTUAL BACKGROUND & PROCEDURAL HISTORY
On September 24, 2020, ten (10) 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, a document titled "Motion to Expedite" was filed. (Doc. 4). The joint Petition (Doc. 1) and Motion to Expedite (Doc. 4) were docketed separately, with a unique case number being assigned to each Petitioner. 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. 2).
On October 7, 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, a native and citizen of Russia, alleges in his Petition that he "takes medication For COVID-19 as he tested Positive and has Hernia in stomach. Always have pain in his hernia and because of which he has visited Doctor outside the Prison Multiple Times. And now because of COVID-19 he is unable to visit the doctor again for Surgery." (Doc. 1, ¶ 22(a)). Petitioner tested positive for COVID-19 on August 26, 2020, and he later tested negative on September 21, 2020. (Doc. 8-1, Ex. 5). Petitioner is thirty-five (35) years old. Id. He alleges that his medical conditions expose him to "an imminent risk of death or serious injury if exposed to COVID-19." (Doc. 1, ¶ 22). As relief, Petitioner requests immediate release from ICE custody.
On October 9, 2020, I issued a Show Cause Order (Doc. 6), setting forth an expedited briefing schedule. On October 16, 2020, Respondent filed a Response. (Doc. 8). On October 30, 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 under which to seek habeas relief. IV. DISCUSSION
A. DUE PROCESS
Petitioner is detained pursuant to 8 U.S.C. § 1231(a). Under this statute, "The Attorney General shall remove [an] alien [subject to an order of removal] from the United States within a period of 90 days." 8 U.S.C. § 1231(a)(1)(A). The removal period begins the latest of the following:
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.
(i) The date the order of removal becomes administratively final.8 U.S.C. § 1231(a)(1)(B). After the 90-day removal period, detention is no longer mandatory. 8 U.S.C. § 1231(a)(3). However, 8 U.S.C. § 1231(a)(6) permits continued detention "beyond the removal period" for certain categories of aliens.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court recognized six months as a "presumptively reasonable period" of post-final-order detention under Section 1231(a)(6). Zadvydas, 533 U.S. at 688-89, 701. "After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id.
In Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 214 (3d Cir. 2018), the United States Court of Appeals for the Third Circuit further concluded that "an alien detained under § 1231(a)(6) is generally entitled to a bond hearing after six months (i.e., 180 days) of custody." Guerrero-Sanchez, 905 F.3d at 226. The alien is entitled to release "unless the government establishes [by clear and convincing evidence] that the alien poses a risk of flight or a danger to the community." Id. at 224 & n.12. "However . . . '[i]f the 180-day threshold has been crossed, but the alien's release or removal is imminent ... [then] the government [is not] required to afford the alien a [bond] hearing before an immigration judge.'" Id. at 226 n.15 (quoting Diouf v. Napolitano, 634 F.3d 1081, 1092 n.13 (9th Cir. 2011)). This exception is "narrow" and does not apply if "detention 'is expected to continue more than minimally beyond six months.'" Id. (quoting Diouf, 634 F.3d at 1092 n.13).
Here, Petitioner has been in ICE custody since March 5, 2020. (Doc. 8-1, Ex. 3, John Foster Decl. ¶ 2). Petitioner was admitted to the United States as a visitor in 2008, with authorization to remain not more than six (6) months. (Doc. 8-1, Ex. 1). On December 24, 2012, Petitioner was served with a Notice to Appear and charged as removable under Section 237(a)(1)(B) of the Immigration and Nationality Act because he remained in the United States longer than permitted. (Doc. 8-1, Ex. 2). On April 19, 2017, an Immigration Judge issued an in absentia removal order removing Petitioner to Russia. (Doc. 8-1, Ex. 4, p. 2). Petitioner did not appeal the order, which therefore became final on May 19, 2017. (Doc. 8-1, Ex. 3, ¶ 4).
On August 10, 2019, Petitioner was arrested in Pennsylvania for Strangulation, Criminal Mischief, Aggravated Assault, Disorderly Conduct, and Harassment, and ICE placed a detainer on him. (Doc. 8-1, Ex. 1, p. 2). On March 5, 2020, Petitioner was convicted of only Harassment and sentenced to one year of probation. Id. He was taken into ICE custody that day. (Doc. 8-1, Ex. 3, ¶ 2).
ICE has taken steps to remove Petitioner since he entered ICE custody. On April 2, 2020, ICE's Enforcement and Removal Operations ("ERO") sent a travel document request package to Removal and International Operations ("RIO") for assistance in obtaining Petitioner's travel document from the Embassy of Russia. Id. at ¶ 6. On June 24, 2020, ERO requested assistance from RIO headquarters in obtaining Petitioner's travel document. Id. ¶ 7. On July 22, 2020, the Embassy of Russia contacted ICE requesting additional information about Petitioner's family. Id. ¶ 8. On August 20, 2020, ICE provided the Embassy of Russia with the requested information. Id. ¶ 9. On October 5, 2020, Petitioner was given a new Russian passport application because his initial application was illegible. Id. ¶ 10. ICE has ensured that Petitioner's new passport application will be legible. Id. ¶ 11.
ICE reviewed Petitioner's custody status on August 31, 2020, as required by 8 C.F.R. § 241.4, and decided to continue custody "on the ground that petitioner's criminal history supports the conclusion that he poses a danger to society and/or risk of flight and on the expectation that a travel document will be issued." (Doc. 8-1, Ex. 3, ¶ 12). ICE "anticipate[s] that petitioner's removal from the United States is imminent upon his submission of his readable passport application." Id. at ¶ 13.
Petitioner's detention, which began on March 5, 2020, has extended beyond the "presumptively reasonable" six-month post-final-order period set forth in Zadvydas, 533 U.S. at 701, and Guerrero-Sanchez, 905 F.3d at 226. Therefore, if Petitioner provides "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," then "the Government must respond with evidence sufficient to rebut that showing." See Zadvydas, 533 U.S. at 701.
In his traverse, Petitioner states that "it is less likely that Russia will provide [a] Travel document for him as his family was against the government in Russia." (Doc. 9, p. 1). He states that "he should not be punished for the only reason that ICE is unable to get Travel Document from his Country." Id. at ¶ 3.
Conclusory allegations will not sustain a Zadvydas claim. See, e.g., Umarbaev v. Lowe, 453 F. Supp. 3d 698, 700 (M.D. Pa. 2020) ("Without any facts or evidence beyond conclusory allegations to support his Zadvydas claim, the Court will not grant relief on this ground."); see also Rosas v. Doll, No. 1:20-CV-00716, 2020 WL 3172770, at *3 (M.D. Pa. June 15, 2020) (rejecting Zadvydas claim of petitioner detained eight (8) months, noting petitioner provided no evidence to support claim that pending appeal of denial of withholding or deferral of removal would likely be remanded for further proceedings); DonMartin v. Lowe, No. 1:17-cv-1766, 2017 WL 5990114, at *2 (M.D. Pa. Dec. 4, 2017) (denying relief under Zadvydas to detainee because argument that "his removal [was] unlikely because it ha[d] not yet occurred" did not meet Zadvydas standard). While Petitioner here claims that Russia is "less likely" to provide his travel document because "his family was against the government in Russia," this statement does not present facts or evidence to show that "there is no significant likelihood of removal in the reasonably foreseeable future." See Zadvydas, 533 U.S. at 701. Further, ICE has taken recent steps to secure Petitioner's travel document, and it anticipates that his removal will be imminent upon submission of his readable passport application. (Doc. 8-1, Ex. 3, ¶¶ 10-13). Petitioner is not entitled to relief under Zadvydas at this time.
Under Guerrero-Sanchez, Petitioner is entitled to a bond hearing if his removal is not "imminent" or his "detention is expected to continue more than minimally beyond six months." 905 F.3d at 226 n.15 (quotation omitted). Petitioner has been detained since March 5, 2020, and ICE has not yet received Petitioner's travel document. However, part of this delay appears to have been due to Petitioner's initial Russian passport application being unreadable. (See Doc. 8-1, Ex. 3, ¶ 10). Petitioner received a new passport application on October 5, 2020, and ICE has "ensured Petitioner's application will be legible." Id. at ¶ 11. Because Petitioner's detention has continued only minimally beyond six months from his final removal order on March 5, 2020, and ICE expects his removal to be imminent, Petitioner is not entitled to a bond hearing under Guerrero-Sanchez at this point.
Petitioner, however, remains free to file a new Section 2241 petition challenging his continued detention, should there be no progress on his removal or if events indicate that he will not be removed in the reasonably foreseeable future. See Zadvydas, 533 U.S. at 701 ("[F]or detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink.").
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 a constitutional challenge by immigration detainees 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." 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). 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 the determination of 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, ¶ 22(iii)). He argues that "Respondents' Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to a second stage of COVID-19 which is why all plaintiffs in this Petition have contracted this Virus due to ineffective measures." Id. at ¶ 21. 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, ¶¶ 31, 52).
. . . .
[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.
In his Traverse, he alleges,
[S]ome [detainees] are triple celled and others are packed into open space where they literally can touch people sleeping next to them. Sixty people share a handful of sinks and shower in communal bathroom that are cleaned infrequently. They are sitting right next to each other on
meals sharing the same tables, prepared and served in unsanitary conditions. The prison's medical practices are inconsistent with CDC guidelines.(Doc. 9, p. 4). Petitioner further alleges in his Traverse that detainees and inmates at York County Prison who test positive for COVID-19 are not being removed from the general population there. He states,
One plaintiff who had contracted COVID-19 before is still with us in the same dorm, 400 people have tested positive including employees, and many other detainees, have COVID19 symptoms, but the prisons is not performing new testing . . . people who were in contact with people who have tested positive has not yet finished [testing] . . . They are neither quarantined nor isolated.(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. 6). 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.
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.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.
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, Stephen Ritchey Decl.). ICE's Philadelphia Field Office maintains ICE staff on site at York County Prison. Id. at ¶ 6. York County Prison has the capacity to house 2,245 inmates. (Id. ¶ 7). As of October 13, 2020, it housed only 1,262 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 housing units, and cleans high-traffic areas at least four times per day. (Id. ¶ 18). YPC issues one bar of soap per detainee, but it will immediately issue a replacement when the bar is exhausted. (Id.).
Despite these protective measures, Petitioner alleges that there has been an outbreak of COVID-19 cases at York County Prison, "where 315 Inmates/Detainees have tested Positive for COVID-19 until 15 September, 2020. Petitioners request this Court to take these new Prison Condition and the figures in consideration while making the decision." (Doc. 1, ¶ 21). In his Traverse, he states that 368 inmates and detainees have tested positive as of September 30, 2020. (Doc. 9, p. 2). He details recent increases in COVID-19 cases at York County Prison:
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 . . . .Id. Respondent provided a declaration describing the following COVID-19 case numbers as of October 13, 2020:
a. Since March 2020, at the York County Prison there have been 101 confirmed cases of COVID-19 among ICE detainees. Three of those 101 tested positive prior to entering ICE custody at the York County Prison. As of the morning of October 13, 2020, there were 13 ICE
detainees who tested positive for COVID-19 housed in isolation under medical observation consistent with CDC guidelines. 88 ICE detainees who previously tested positive have been cleared and are no longer subject to isolation/quarantine requirements. Additionally, there have been 381 confirmed cases among county inmates, 329 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. 8, Stephen Ritchey Decl. ¶ 23).
b. Within the York County Prison there have been no hospitalizations among ICE detainees or deaths among ICE detainees or county inmates.
In his Traverse, dated October 20, 2020 (one week after the Ritchey Declaration), Petitioner alleges that at least two "inmates" have been hospitalized on ventilators after contracting COVID-19. (Doc. 9 at p. 2). Petitioner does not further describe the inmates as detainees or provide the source of his information.
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].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.
. . . . 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.
Here, Petitioner does not allege any medical conditions that are CDC-recognized risk factors for COVID-19 complications. 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 Nov. 2, 2020).
Petitioner tested positive for COVID-19 in a test conducted on August 26, 2020. (Doc. 8-1, Ex. 5). In his Petition, Petitioner states that he takes medication for COVID-19 and that he has not been able to receive needed hernia surgery due to being positive for COVID-19. (Doc. 1, ¶ 22(a); Doc. 9, ¶ 3). He states that his hernia causes him constant pain. (Doc. 1, ¶ 22(a)). Petitioner is thirty-five (35) years old. Id. On September 21, 2020, Petitioner was tested again for COVID-19, and the results came back negative. (Doc. 8-1, Ex. 5). In Petitioner's Traverse, which he filed after his negative test, he alleges that "he is Prone to the risk of catching COVID-19 again as the Prison has new OUT-Break and are unable to control it, as it is just the matter of when." (Doc. 9, ¶ 3). He also alleges that despite a doctor advising him to get surgery, he is not able to because York County Prison is not transporting anyone out of the facility except in "life or death" situations. Id. His medical records indicate that a "Gastro appt." that Petitioner was scheduled for on September 3, 2020 was rescheduled for September 23, 2020, then rescheduled again for November 2, 2020. (Doc. 8-1, Ex. 5).
While Petitioner previously tested positive for COVID-19, he is currently negative for the disease. See id. He does not show that he has any medical conditions that place him at increased risk of complications should he test positive for COVID- 19 again. Further, he provides no evidence that he is more likely to contract COVID-19. Petitioner also 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. Although Petitioner is unable to receive surgery outside of York County Prison due to the facility's current COVID-19 polices, those policies appear to serve the facility's interest in reducing the risk of COVID-19 infections among inmates and detainees. 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. Therefore, Petitioner has not shown that this confinement constitutes unconstitutional punishment, and, on this record, he is not entitled to relief based on those conditions.
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. Petitioner does not allege any lack of treatment for any COVID-19 symptoms that he had or exposure to individuals who presently are positive for COVID-19. (See Doc. 1). Rather, Petitioner stated that he received medication when he contracted COVID-19. Id. at ¶ 22(a). In addition, as discussed earlier, although Petitioner has needed to delay surgery for a hernia due to restrictions on leaving York County Prison, he indicated that these restrictions are due to COVID-19. These restrictions may result in difficult trade-offs regarding medical care for some detainees, but they do not show deliberate indifference to the risks posed by COVID-19.
Finally, 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 changes to its COVID-19 protocols recently:
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. 8, ¶ 24(a)).
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. 8). 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 conditions. 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 Clerk of Court be instructed to correct the spelling of Petitioner's name to Kektyshev on the docket;Date: December 1, 2020
(2) The Petition be DENIED and DISMISSED WITHOUT PREJUDICE;
(3) A CERTIFICATE OF APPEALABILITY NOT BE ISSUED as Petitioner has not made a substantial showing of a denial of a constitutional right; and
(4) 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