Quijada v. Wolf

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 ELSY VERONICA DEL CID Case No.: 3:20-cv-00744-WQH-AGS QUIJADA; JOSE HERNANDEZ 11 HERNANDEZ; SERGIO JAIME ORDER 12 LOPEZ; and FARZANEH RAMENAZI, [13] Petitioners, [14] v. [15] CHAD T. WOLF, Acting 16 Secretary of Homeland Security; 17 MATTHEW T. ALBENCE, Deputy Director and Senior 18 Official Performing Duties of the 19 Director of U.S. Immigration and Customs Enforcement; 20 GREGORY J. 21 ARCHAMBEAULT, San Diego Field Office Director, Immigration 22 and Customs Enforcement; 23 JAMES DOBSON, Otay Mesa Detention Center Officer in 24 Charge, Immigration and Customs 25 Enforcement; CHRISTOPHER J. LAROSE, Senior Warden, Otay 26 Mesa Detention Center, [27] Respondents. [28] 1 HAYES, Judge: 2 The matters before the Court are the Motion for a Temporary Restraining Order filed 3 by Petitioner Sergio Jaime Lopez (ECF No. 2) and the Motion to File Documents Under 4 Seal filed by Respondents (ECF No. 6). 5 I. PROCEDURAL BACKGROUND 6 On April 19, 2020, Petitioners Jose Hernandez Hernandez, Elsy Veronica Del Cid 7 Quijada, Farzaneh Ramenazi, and Sergio Jaime Lopez initiated this action by filing a 8 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 . (ECF No. 1). Petitioners 9 allege that they are “immigration detainees at Otay Mesa Detention Center” (“OMDC”). [10] Id. at 5 . Petitioners “request that this Court order their immediate release to their sponsor” 11 due to “Respondents’ inaction on COVID-19 and the increasing chaos at [OMDC] ….” Id. 12 at 6. 13 On the same day, Petitioner Lopez filed a Motion for a Temporary Restraining 14 Order. (ECF No. 2). Petitioner Lopez requests “a temporary restraining order enjoining 15 the Respondents from continuing to detain him and ordering his immediate release from 16 immigration detention to a hospital to treat his emergent COVID-19 disease.” Id. at 2 . 17 On April 22, 2020, Respondents filed a Response in opposition to the Motion for a 18 Temporary Restraining Order filed by Petitioner Lopez. (ECF No. 5). On the same day, 19 Respondents filed a Motion to File Documents Under Seal. (ECF No. 6). 20 On April 28, 2020, Petitioner Lopez filed a Reply. (ECF No. 15). 21 II. FACTS 22 Petitioner Lopez is a 33-year-old citizen of Nicaragua. On August 7, 2019, 23 Petitioner Lopez entered the United States without inspection and was apprehended by U.S. 24 Border Patrol. On the same day, Petitioner Lopez applied for asylum and was placed in 25 the Migrant Protection Protocols program (“MPP program”). On the same day, Petitioner 26 Lopez was given a Notice to Appear before an immigration judge to commence removal 27 proceedings. [28] 1 In December 2019, Petitioner Lopez was removed from the MPP program. Since 2 December 2019, Petitioner Lopez has been detained at OMDC. 3 On March 24, 2020, Petitioner Lopez filed a “humanitarian parole application to 4 [Immigration and Customs Enforcement] seeking [Petitioner] Lopez’s release to his aunt, 5 …, a Lawful Permanent Resident who lives in San Francisco and who has agreed to 6 financially and physically sponsor [Petitioner] Lopez during the pendency of his 7 immigration case.” Cargioli Decl. ¶ 10, ECF No. 1-2 at 4. Immigration and Customs 8 Enforcement has not responded to Petitioner Lopez’s request. 9 Before April 13, 2020, Petitioner Lopez’s pod was placed under quarantine after a 10 detainee tested positive for COVID-19. 11 On April 13, 2020, Petitioner Lopez was seen by a registered nurse at OMDC. 12 Medical records show that Petitioner Lopez had a temperature of 100.4 degrees and 13 reported feeling chills and fatigue. Petitioner Lopez denied experiencing a change in 14 breathing pattern, chest pain, cough, pain with inspiration, shortness of breath at rest, 15 shortness of breath with exertion, sputum production, or wheezing. Petitioner Lopez was 16 provided Ibuprophen and transferred to the Medical Housing Unit (the “MHU”). 17 From April 14 to April 20, 2020, Petitioner Lopez was housed in the MHU. 18 Registered nurses and nurse practitioners at the MHU assessed Petitioner Lopez and 19 monitored his temperature multiple times throughout the day. Medical records show that 20 Petitioner Lopez continued to report feeling chills, fever, sore throat, muscle aches, and a 21 cough. Petitioner Lopez was provided Acetaminophen and Ibuprophen. 22 On April 17, 2020, Petitioner Lopez tested positive for COVID-19 and was informed 23 by a nurse practitioner that he would continue to be isolated and monitored at the MHU. 24 Registered nurses and nurse practitioners at the MHU continued to assess Petitioner Lopez 25 and monitor his temperature multiple times throughout the day. Registered nurses and 26 nurse practitioners at the MHU continued to provide Petitioner Lopez with Acetaminophen 27 and Ibuprophen. [28] 1 On April 20, 2020, Petitioner Lopez was discharged from the MHU. Since April 20, 2 2020, Petitioner Lopez has been housed in his pod with other COVID-19-positive 3 detainees. 4 On April 21, 2020, Petitioner Lopez was granted parole by Immigration and 5 Customs Enforcement with a bond set at $10,000. 6 III. CONTENTIONS OF THE PARTIES 7 Petitioner Lopez requests a temporary restraining order enjoining Respondents from 8 continuing to detain him and ordering his immediate release from OMDC to a hospital for 9 COVID-19 evaluation and treatment or, in the alternative, release to his sponsor. Petitioner 10 Lopez contends that he is likely to prevail on his habeas claim that his continued detention 11 violates his substantive due process rights pursuant to the Fifth Amendment. Petitioner 12 Lopez asserts that he faces an extreme risk to his health if he remains in detention at OMDC 13 with a confirmed COVID-19 infection. Petitioner Lopez contends that he faces a risk of 14 irreparable harm from dying in Respondents’ custody. Petitioner Lopez contends that the 15 balance of equities tilts in his favor because there are alternative ways to ensure Petitioner 16 Lopez’s participation in removal proceedings. Petitioner Lopez contends that his release 17 serves the public interest by reducing the risk to other detainees and staff at OMDC. 18 Respondents contend that Petitioner Lopez is unlikely to succeed on his habeas claim 19 and fails to establish irreparable harm. Respondents assert that Petitioner Lopez’s medical 20 condition has been treated and resolved. Respondents assert that Petitioner Lopez has 21 received adequate medical care at OMDC. Respondents contend that the balance of 22 equities and public interest do not weigh in Petitioner Lopez’s favor. Respondents assert 23 that there is no medical reason for Petitioner Lopez’s transfer to a hospital or release. 24 Respondents assert that there is a strong public interest to ensure Petitioner Lopez appears 25 at his removal proceedings and is repatriated should he be denied relief from removal. 26 IV. LEGAL STANDARD 27 When the non-movant has received notice, as here, the standard for issuing a 28 temporary restraining order is the same as that for issuing a preliminary injunction. See 1 Brown Jordan Int’l, Inc. v. Mind’s Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D. 2 Haw. 2002 ); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 3 1320, 1323 (N.D. Cal. 1995). “[A] preliminary injunction is an extraordinary and drastic 4 remedy, one that should not be granted unless the movant, by a clear showing, carries the 5 burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis 6 original) (internal quotation marks and citation omitted). “[T]he burdens [of proof] at the 7 preliminary injunction stage track the burdens [of proof] at trial. Gonzales v. O Centro 8 Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). 9 To obtain preliminary injunctive relief, a movant must “meet one of two variants of 10 the same standard.” All for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017). 11 Under the first standard, the movant must show “that he is likely to succeed on the merits, 12 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 13 balance of equities tips in his favor, and that an injunction is in the public interest.” Id. 14 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). 15 Under the second standard, the movant must show “that there are serious questions 16 going to the merits—a lesser showing than likelihood of success on the merits,” that the 17 “balance of hardships tips sharply in the Plaintiff’s favor,” and that “the other two Winter 18 factors are satisfied.” Id. (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281 , 19 1291 (9th Cir. 2013)) (emphasis original) (internal quotation marks omitted). The balance 20 of equities and public interest factors merge “[w]hen the government is a party.” Drakes 21 Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (quoting Nken v. Holder, [22] 556 U.S. 418, 435 (2009)). Under the second standard, when the government is a party, 23 the movant must show serious questions going to the merits; a balance of hardships, merged 24 with public interest considerations, tipping sharply in the movant’s favor; and a likelihood 25 of irreparable harm absent preliminary relief. [28] 1 V. DISCUSSION 2 a. Likelihood of Success on the Merits 3 i. Reasonable Relation to Legitimate Government Purpose 4 Individuals detained pursuant to immigration violations are civil detainees. See 5 Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “[U]nder the Due Process Clause, a detainee 6 may not be punished prior to an adjudication of guilt in accordance with due process of 7 law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979) (citations omitted). “Bell’s focus on 8 ‘punishment’ does not mean that proof of intent (or motive) to punish is required for a 9 pretrial detainee to prevail on a claim that his due process rights were violated.” Kingsley 10 v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (emphasis in original). “Rather, … a pretrial 11 detainee can prevail by providing only objective evidence that the challenged governmental 12 action is not rationally related to a legitimate governmental objective or that it is excessive 13 in relation to that purpose.” Id. at 2473-74 (citations omitted). In other words, conditions 14 are punitive when they “are employed to achieve objectives that could be accomplished in 15 so many alternative and less harsh methods ….” Jones v. Blanas, 393 F.3d 918, 932 (9th 16 Cir. 2004) (citation omitted). 17 Petitioner Lopez contends that his continued detention is not reasonably related to 18 any legitimate governmental goal. Petitioner Lopez asserts that he “can continue to pursue 19 his immigration case on release, like the thousands of other non-detained immigrants 20 currently in removal proceedings, and [Immigration and Customs Enforcement] can use 21 alternatives to detention to verify that he remains in place.” (ECF No. 2 at 17-18). 22 Petitioner Lopez contends that “the government’s alleged harm (presumably the 23 unsubstantiated risk that [Petitioner] Lopez would abscond) could be nearly entirely 24 mitigated by its employment of alternatives to detention, such as GPS monitoring.” Id. at 25 18. Respondents contend that Petitioner Lopez’s “claim for habeas relief has … been 26 rendered moot” because Petitioner Lopez “has been granted parole upon posting a $10,000 27 bond and final medical clearance.” (ECF No. 5 at 6). [28] 1 The Supreme Court has recognized the detention of individuals pending their 2 removal proceedings as rationally related to the legitimate governmental interest of 3 ensuring their appearance for their deportation proceedings and preventing danger to the 4 community. See Zadvydas, 533 U.S. at 690 . The Supreme Court “has recognized detention 5 during deportation proceedings as a constitutionally valid aspect of the deportation 6 process.” Demore v. Kim, 538 U.S. 510, 523 (2003). On April 21, 2020, Petitioner Lopez 7 was granted parole with a bond set at $10,000. Petitioner Lopez challenges the amount of 8 his bond as excessive. 9 The Court of Appeals has stated that courts “may require” the exhaustion of 10 administrative remedies when: 11 (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement [12] would encourage the deliberate bypass of the administrative scheme; and (3) 13 administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review. [14] 15 Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Puga v. Chertoff, 488 16 F.3d 812, 815 (9th Cir. 2007)). The Court of Appeals has further stated that 17 If a petitioner fails to exhaust prudentially required administrative remedies, then “a district court ordinarily should either dismiss the petition without [18] prejudice or stay the proceedings until the petitioner has exhausted remedies.” [19] Id. (quoting Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011)). However, “a [20] court may waive the prudential exhaustion requirement if ‘administrative remedies are [21] inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, [22] irreparable injury will result, or the administrative proceedings would be void.’” Id. [23] (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). Petitioner Lopez fails to [24] set forth evidence demonstrating the exhaustion of administrative remedies or justifying a [25] waiver of the exhaustion requirement. The Court cannot conclude that Petitioner Lopez’s [26] continued detention is not reasonably related to a legitimate governmental objective. [28] 1 ii. Reasonable Safety of Detainees 2 Due process imposes a duty on the government “to assume some responsibility for 3 [the] safety and general well-being” of persons it takes into its custody. DeShaney v. 4 Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989) (citation omitted). The 5 government can consequently be held liable for a due process violation where a 6 government official affirmatively places individuals, with deliberate indifference to their 7 health or safety, in a position of known danger “which he or she would not have otherwise 8 faced.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (citing 9 DeShaney, 489 U.S. at 197, 201 ). A plaintiff in custody must show that government 10 officials acted in an objectively unreasonable manner that “put the plaintiff at substantial 11 risk of suffering serious harm ….” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th 12 Cir. 2016)). The Supreme Court has held that prison officials cannot “ignore a condition 13 of confinement that is sure or very likely to cause serious illness and needless suffering the 14 next week or month or year.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citation 15 omitted). 16 Petitioner Lopez contends that his continued detention violates constitutional 17 requirements imposed on Respondents to ensure his reasonable safety. Petitioner Lopez 18 contends that “Respondents undeniably breached their duty to provide reasonable safety 19 when they failed to take adequate measures to avoid the spread of COVID-19 to 20 [Petitioner] Lopez and to other detainees at [OMDC].” (ECF No. 2 at 14). Petitioner 21 Lopez contends that “Respondents continue to breach their duty to provide both reasonable 22 safety and adequate medical care.” Id. at 15. Petitioner Lopez contends that, “by not taking 23 such measures, Respondents’ actions constituted the res ipsa cause of [Petitioner] Lopez’s 24 injuries.” Id. (emphasis in original). Respondents contend that “[t]here is no basis for 25 ordering [Petitioner Lopez’s] transfer to a hospital” and “there is no factual basis for 26 [Petitioner Lopez’s] Fifth Amendment substantive due process claim ….” (ECF No. 5 at 27 6). Respondents assert that Petitioner Lopez “makes generalized and speculative 28 accusations about the quality of medical care provided … at OMDC.” Id. at 5. 1 Respondents assert that Petitioner Lopez’s “medical records are a testament to the 2 extraordinary level of medical care that he has received at OMDC.” Id. 3 On April 13, 2020, Petitioner Lopez was transferred to the MHU after he was found 4 to have a temperature of 100.4 degrees and reported feeling chills and fatigue. Petitioner 5 Lopez denied experiencing a change in breathing pattern, chest pain, cough, pain with 6 inspiration, shortness of breath at rest, shortness of breath with exertion, sputum 7 production, or wheezing. From April 14 to April 20, 2020, Petitioner Lopez was housed 8 in the MHU. Throughout his stay at the MHU, registered nurses and nurse practitioners 9 assessed Petitioner Lopez and monitored his temperature multiple times throughout the 10 day. Throughout his stay at the MHU, Petitioner Lopez was provided Acetaminophen and 11 Ibuprophen. From April 14 to April 17, 2020, Petitioner Lopez continued to report feeling 12 chills, fever, sore throat, muscle aches, and a cough. On April 17, 2020, Petitioner Lopez 13 tested positive for COVID-19 and was informed by a nurse practitioner that he would 14 continue to be isolated and monitored at the MHU. On April 20, 2020, Petitioner Lopez 15 was discharged from the MHU. Since April 20, 2020, Petitioner Lopez has been housed 16 in his pod with other COVID-19-positive detainees. 17 Petitioner Lopez fails to set forth evidence demonstrating a likelihood of success on 18 his claims that Respondents are violating Petitioner Lopez’s substantive due process rights 19 by failing to respond to his COVID-19 infection. Petitioner Lopez fails to set forth 20 evidence demonstrating a substantial risk created by Respondents’ alleged indifference. 21 Petitioner Lopez fails to set forth evidence demonstrating that Respondents failed to 22 respond to his COVID-19 infection. The Court cannot conclude that Respondents 23 abandoned their constitutional duty and exposed Petitioner Lopez to a risk “that is sure or 24 very likely to cause serious illness and needless suffering” in the future. Helling, 509 U.S. 25 at 33 . The Court cannot conclude that Petitioner Lopez is likely to sufficiently state claims 26 for violation of substantive due process. [28] 1 b. Irreparable Injury 2 To recover preliminary relief, a moving party must also demonstrate that 3 || ““irreparable injury is /ikely in the absence of an injunction.” Winter, 555 U.S. at 22 4 || (emphasis in original) (citations omitted). “Issuing a preliminary injunction based only on 5 ||a possibility of irreparable harm is inconsistent with [the] characterization of injunctive 6 || relief as an extraordinary remedy that may only be awarded upon a clear showing that the 7 || plaintiff is entitled to such relief.” Jd. (citation omitted). In this case, Petitioner Lopez’s 8 ||mere presence in OMDC is insufficient to demonstrate a likelihood that he will suffer 9 || severe illness or death as a result of continued detention. The Court cannot conclude that 10 || Petitioner Lopez has shown a likelihood of irreparable harm absent the requested relief 11 ||}based on Respondents’ response to Petitioner Lopez’s COVID-19 infection. 12 c. Balance of Equities and Public Interest 13 The balance of equities and public interest factors merge “[w]hen the government is 14 party.” Drakes Bay Oyster, 747 F.3d at 1092 (9th Cir. 2014) (citation omitted). 15 || Respondents appear to be taking necessary measures to protect the public during this health 16 crisis. The Court cannot find that granting Petitioner Lopez’s request for release would be 17 ||in the public interest given his exposure and absent any established likelihood of 18 || constitutional injury. 19 CONCLUSION 20 HEREBY ORDERED that the Motion for a Temporary Restraining Order filed 21 || by Petitioner Sergio Jaime Lopez (ECF No. 2) is DENIED. 22 IT IS FURTHER ORDERED that the Motion to File Documents Under Seal filed 23 || by Respondents (ECF No. 6) is GRANTED. 24 || Dated: May 4, 2020 BME: Me Z. A a 25 Hon. William Q. Hayes %6 United States District Court