finding that 19 detainees are “entitled to release on bond unless the government establishes that he is a 20 flight risk or will be a danger to the community”
How later courts described this case
- finding that 19 detainees are “entitled to release on bond unless the government establishes that he is a 20 flight risk or will be a danger to the community”
- courts may 12 take judicial notice of news articles as evidence of “what was in the public realm at the 13 time, not whether the contents of those articles were in fact true”
- “Even when 26 the actual statements quoted in a newspaper article constitute nonhearsay, or fall within a 27 hearsay exception, their repetition in the newspaper creates a hearsay problem.”
- holding that BIA could have addressed due process 5 argument, which “would have preserved the due process claim for appeal to this court 6 without short-circuiting the agency’s ‘opportunity to correct its own errors’”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 FOR THE SOUTHERN DISTRICT OF CALIFORNIA
9
HAMIDULLAH HABIBI, Case No. 20-cv-00618-BAS-RBB
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Petitioner, ORDER GRANTING RESPONDENTS’
11 MOTION TO DISMISS AMENDED
v. PETITION FOR WRIT OF
12 HABEAS CORPUS
WILLIAM BARR, Attorney General
13 of the United States, et al., [ECF No. 12]
14 Respondents.
15
16 On March 24, 2020, Petitioner Hamidullah Habibi filed an Emergency Motion in the
17 Ninth Circuit seeking his release under the All Writs Act due to the COVID-19 pandemic.
18 (ECF No. 1-2.) On March 31, 2020, the Ninth Circuit construed the Motion as an
19 application for a writ of habeas corpus under 28 U.S.C. § 2241 and transferred the case to
20 the United States District Court for the Southern District of California. (ECF No. 1.)
21 Petitioner thereafter filed an Amended Petition for Habeas Corpus (“Petition”).1 (ECF
22 No. 6.) Respondents filed a Response in Opposition seeking to dismiss the Petition,
23 which the Court now construes as a Motion to Dismiss (“Motion”). (ECF No. 12.) The
24 Court finds the issues raised suitable for determination on the papers submitted and
25 without oral argument. See CivLR 7.1(d)(1). For the reasons stated below, the Court
26 GRANTS Respondents’ Motion and DISMISSES the Petition.
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1 Petitioner concurrently filed a Motion for a Temporary Restraining Order (“TRO”) (ECF No. 7), which
1 I. BACKGROUND
2 Petitioner is a 23-year-old asylum seeker from Afghanistan currently detained at
3 Otay Mesa Detention Center (“OMDC”). (Pet. ¶¶ 1–2.) Petitioner has been in the
4 custody of the Department of Homeland Security for two years and five months. (Decl.
5 of Harper Otawka (“Otawka Decl.”) ¶ 1, Ex. B to Pet., ECF No. 6-4.)
6 Petitioner represented himself in his removal proceedings. (Otawka Decl. ¶ 2.) He
7 applied for asylum, statutory withholding of removal, and protection under the United
8 Nations Convention Against Torture. (Id.) The Immigration Judge (“IJ”) denied his
9 application for all forms of relief and ordered him removed to Afghanistan. (Id.)
10 Petitioner appealed the removal decision to the Board of Immigration Appeals (“BIA”),
11 which dismissed the appeal on September 25, 2019. (Dec. of the BIA, Ex. D to Pet., ECF
12 No. 6-6.) Petitioner filed a Petition for Review of this decision before the Ninth Circuit,
13 which remains pending. (Pet. ¶ 28; Dkt. for Hamidullah Habibi v. William Barr, Case
14 No. 19-72683 (9th Cir. October 23, 2019), ECF No. 1-5.)
15 After a custody redetermination proceeding on April 1, 2020, the IJ granted
16 Petitioner’s request for release from custody on a $30,000 bond after finding him a
17 “significant flight risk.” (Order of the IJ, Ex. E to Pet., ECF No. 6-7.) Petitioner’s bond
18 counsel states that the IJ did not ask Petitioner any questions during the redetermination
19 hearing and ultimately set bond at $30,000 “because it was very expensive for one to
20 travel from Afghanistan to the United States[.]” (Otawka Decl. ¶ 8.)
21 Petitioner cannot afford to pay the bond, and on April 13, 2020, his bond counsel
22 filed a Notice of Appeal with the BIA challenging the IJ’s bond determination for failing
23 to consider Petitioner’s financial circumstances when setting the bond amount. (Reply at
24 1, ECF No. 14; Decl. of Harper Otawka (“Otawka Reply Decl.”) ¶ 2, Ex. B to Reply,
25 ECF No. 14-3.) Petitioner’s bond counsel is concurrently working on a motion to
26 expedite Petitioner’s bond appeal, citing irreparable harm due to the COVID-19 outbreak
27 at OMDC. (Otawka Reply Decl. ¶ 2.)
28
1 As such, Petitioner remains detained at OMDC during the ongoing COVID-19
2 pandemic, where, at the time of this Order, there are 98 confirmed cases at the facility.
3 See “Confirmed Cases: ICE Guidance on COVID-19,” ice.gov/coronavirus (last updated
4 April 25, 2020).2 He is housed “in the P-Pod which,” at the time Respondents’ Motion
5 was filed, “is one of the 6 housing units under quarantine for positive COVID cases.”
6 (Farabaugh Decl. ¶ 12c.)
7 Based on these circumstances, Petitioner states two grounds for habeas relief.
8 First, he claims that his continued detention at OMDC during the COVID-19 outbreak
9 threatens his life in violation of his due process rights. (Pet. ¶ 3.) Second, Petitioner
10 contends that the bond set by the IJ is both arbitrary and punitive in violation of his due
11 process rights because the IJ failed to consider his financial circumstances when setting
12 bond in contravention of Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017). (Pet. ¶ 4.)
13 Respondents argue that Petitioner’s challenge to his bond determination is deficient for
14 failing to exhaust administrative remedies and that both due process claims are without
15 merit.3 (Mot. at 6–8, 10–14.)
16 II. DISCUSSION
17 As explained below, the Court finds that Petitioner has not provided sufficient
18 factual basis to waive the exhaustion requirement for his bond claim4 or to support his
19 due process claim predicated on his continued detention at OMDC.
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2 At the time of Respondents’ filing of their Motion, there were only 14 known cases of COVID-19 at
OMDC. (See Mot. at 5; Decl. of Captain Philip Farabaugh (“Farabaugh Decl.”) ¶ 12, Ex. A to Mot.,
23 ECF No. 12-2.)
3 Respondents also claim that the Petition fails to state a cognizable habeas claim because “seeking
24 release under a writ of habeas corpus is not an appropriate method for remedying confinement
conditions[.]” (Mot. at 11–12.) The Court rejected this argument in its previous Order and incorporates
25 by reference the same reasoning here. (See Order Denying Mot. for TRO at 4 n.2.)
4 Petitioner states that his claim that his continued detention violates his due process rights is not subject
26 to the exhaustion requirement because “there is no administrative framework for claims that one faces
life-threatening conditions of detention[,]” which Respondents do not dispute. (Pet. ¶ 37.) The Court
27 agrees with Petitioner and addresses exhaustion only as to Petitioner’s bond claim. See Garcia-Ramirez
v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (finding jurisdiction over petitioner’s retroactivity
28 challenge to an immigration law because it “implicate[d] legitimate due process considerations that need
1 A. Exhaustion of Bond Claim
2 1. Habeas Exhaustion Requirement
3 Habeas corpus relief is available to any person “in custody in violation of the
4 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Habeas
5 corpus is a legal mechanism for individuals to raise statutory and constitutional
6 challenges to the authority of the Attorney General to mandate their detention pending the
7 outcome of their immigration cases. See Zadvydas v. Davis, 533 U.S. 678, 688 (2001).
8 The Ninth Circuit requires, “as a prudential matter, that habeas petitioners exhaust
9 available judicial and administrative remedies before seeking relief under § 2241.”
10 Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds
11 by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006); see also Sun v. Ashcroft, 370 F.3d
12 932, 938 n.7 (9th Cir. 2004). Generally, if a petitioner fails to exhaust these remedies
13 before seeking habeas relief in district court, “a district court ordinarily should either
14 dismiss the petition without prejudice or stay the proceedings until the petitioner has
15 exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d
16 1157, 1160 (9th Cir. 2011).
17 “Th[e] exhaustion requirement is subject to waiver in [section] 2241 cases because
18 it is not a jurisdictional prerequisite.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir.
19 2012). “[W]here exhaustion of administrative remedies is not jurisdictional,” as here,
20 “the district court must determine whether to excuse the faulty exhaustion and reach the
21 merits, or require the petitioner to exhaust his administrative remedies before proceeding
22 in court.” Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds
23 by Reno v. Koray, 515 U.S. 50, 54–55 (1995). Courts may require prudential exhaustion
24 if:
(1) agency expertise makes agency consideration necessary to generate a
25
proper record and reach a proper decision; (2) relaxation of the requirement
would encourage the deliberate bypass of the administrative scheme; and (3)
26
administrative review is likely to allow the agency to correct its own
27 mistakes and to preclude the need for judicial review.
28
1 Hernandez, 872 F.3d at 988 (quoting Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir.
2 2007)).
3 However, even if these factors weigh in favor of prudential exhaustion, exhaustion
4 can be waived if the court finds that “administrative remedies are inadequate or not
5 efficacious, pursuit of administrative remedies would be a futile gesture, irreparable
6 injury will result, or the administrative proceedings would be void.” Laing v. Ashcroft,
7 370 F.3d 994, 1000 (9th Cir. 2004) (quoting S.E.C. v. G.C. George Sec., Inc., 637 F.2d
8 685, 688 (9th Cir. 1981)); see also Ortega-Rangel v. Sessions, 313 F. Supp. 3d 993, 1003
9 (N.D. Cal. 2018) (holding that petitioner challenging bond decision “must show that at
10 least one of the Laing factors applies in order to excuse exhaustion”).
11 2. Exhaustion in Immigration Cases
12 In the immigration administrative scheme, immigrant detainees “must first appeal
13 any purported errors by the IJ to the BIA, the body to which consistent application of
14 immigration law is primarily entrusted.” Arsdi v. Holder, 659 F.3d 925, 928 (9th Cir.
15 2011). IJs have authority to review custody and bond determinations initially made by
16 the Department of Homeland Security upon request for a bond redetermination by an
17 undocumented individual in custody. 8 C.F.R. §§ 1003.19(a), (b); 1236.1; see Casas-
18 Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 951 (9th Cir. 2008) (finding that
19 detainees are “entitled to release on bond unless the government establishes that he is a
20 flight risk or will be a danger to the community”) (internal quotations omitted). If a
21 detainee wishes to challenge an IJ’s bond determination, the detainee “may file an
22 administrative appeal so that ‘the necessity of detention can be reviewed by . . . the
23 BIA.’” Leonardo, 646 F.3d at 1160 (quoting Prieto-Romero v. Clark, 534 F.3d 1053,
24 1059 (9th Cir. 2008)).
25 If the BIA denies relief, detainees then “may file a petition for habeas corpus in the
26 district court,” and if the decision is unfavorable, “[t]hey may then appeal to” the Court of
27 Appeals. Id. (citing Singh v. Holder, 638 F.3d 1196, 1200–03 (9th Cir. 2011)). Thus, in
28 habeas cases where a detainee seeks review of a bond determination, courts generally
1 require that the detainee exhaust administrative remedies before the BIA “before asking
2 the federal district court to review the IJ’s decision.” Id.
3 3. Petitioner’s Waiver Argument
4 Here, because Petitioner’s appeal of his bond is pending before the BIA (Otawka
5 Reply Decl. ¶ 2), administrative remedies have not yet been exhausted, which Petitioner
6 concedes. (Pet. ¶ 38.) Petitioner argues he should not be required to exhaust
7 administrative remedies because he is at risk of suffering irreparable harm if he remains
8 detained during the pandemic and should therefore not be required to await the BIA’s
9 adjudication of his bond appeal. (Id.; Otawka Decl. ¶ 9 (attesting that bond appeals
10 typically take the BIA four to six months to resolve).) However, given the factors
11 weighing in favor of prudential exhaustion and Petitioner’s factually scant argument to
12 support the irreparable harm exception, the Court finds that Petitioner’s failure to exhaust
13 administrative remedies defeats his bond claim.
14 (a) Puga factors
15 The Puga factors weigh in favor of prudential exhaustion as to Petitioner’s
16 challenge to the IJ’s bond determination. Petitioner’s counsel only recently appealed the
17 bond redetermination decision to the BIA on April 13, 2020. Thus, Petitioner’s argument
18 is “essentially that ‘any delay in receiving a bond hearing results in a loss of liberty that
19 requires’ this court to act because the ‘administratively-established procedures may result
20 in [undue] delay.’” Francisco Cortez v. Nielsen, No. 19-CV-00754-PJH, 2019 WL
21 1508458, at *3 (N.D. Cal. Apr. 5, 2019) (quoting Resendiz v. Holder, No. C 12-04850
22 WHA, 2012 WL 5451162, at *5 (N.D. Cal. Nov. 7, 2012)). As noted by the Northern
23 District, “[t]hat is an argument common to all aliens seeking review of their custody or
24 bond determinations.” Id.
25 Although the Court recognizes that the current pandemic heightens the urgency
26 created by the delay, this does not mean that any delay before the BIA, on any question
27 about the IJ’s determination, warrants waiver. If that were the case, every detainee’s
28 bond appeal pending before the BIA during this time would be waived from the
1 exhaustion requirement, regardless of the time of appeal. This would undermine entirely
2 a primary principle of exhaustion—“to allow the agency to correct its own mistakes and
3 preclude the need for judicial review.” Puga, 488 F.3d at 815; see also Sola v. Holder,
4 720 F.3d 1134, 1136 (9th Cir. 2013) (holding that BIA could have addressed due process
5 argument, which “would have preserved the due process claim for appeal to this court
6 without short-circuiting the agency’s ‘opportunity to correct its own errors’”) (quoting
7 Arsdi, 659 F.3d at 928).
8 Further, the thrust of Petitioner’s challenge to his bond determination appears to be
9 that the IJ “erred in presuming that because Mr. Habibi was able to travel from
10 Afghanistan to the United States to seek asylum, that he would now have the financial
11 capability to pay a bond of $30,000” and by “speculating that Mr. Habibi must be awash
12 in money because he was able to flee from Afghanistan to the United States[.]” (Otawka
13 Reply Decl. ¶ 2; Pet. ¶ 45.) Based on this modicum of information provided about the
14 bond hearing, it appears the IJ had, in fact, considered Petitioner’s financial
15 circumstances. Although Petitioner raises fair questions regarding the validity of the IJ’s
16 factual conclusions about his ability to pay, this inquiry is well within the BIA’s expertise
17 to review and remedy. See Avtar Singh v. Murray, No. 1:17-CV-00739-MJS (HC), 2017
18 WL 6209384, at *4 (E.D. Cal. Dec. 8, 2017) (requiring exhaustion where appeal of bond
19 determination, in which petitioner argues that IJ “erred in denying the request for bond
20 based upon its application of the facts[,]” was within the expertise of the BIA); Aden v.
21 Nielsen, No. C18-1441RSL, 2019 WL 5802013, at *2 (W.D. Wash. Nov. 7, 2019)
22 (“[T]he BIA is the subject-matter expert in immigration bond decisions and has the
23 authority to review appeals from bond determinations by IJs.”). Relaxation of this
24 requirement would encourage bypassing the administrative scheme in place by filing a
25 habeas petition before or concurrently with an appeal to the BIA. See Avtar Singh, 2017
26 WL 6209384, at *6 (finding that court intervention “would encourage others to
27 deliberately bypass the administrative system in place—i.e., the immigration appeals
28
1 system—to address erroneous decisions entered by first level immigration judges”).
2 Thus, prudential exhaustion is appropriate in this case.
3 (b) Irreparable Harm
4 The Court also does not find that Petitioner has established an exception to
5 exhaustion by showing that he will suffer irreparable harm if the requirement is not
6 waived. As noted in the Court’s previous order, Petitioner is “a 23-year-old with no
7 stated preexisting or underlying medical conditions.” (Order Denying Mot. for TRO at
8 10.) Thus, his claims of irreparable harm do not rise to the level of other petitioners
9 whose claims have been found to constitute irreparable harm. (Id. (citing cases).) The
10 Court therefore again finds no merit to Petitioner’s argument that his risk of further
11 exposure at OMDC will cause him irreparable harm “regardless of his quarantine status.”
12 (Reply at 5.)5
13 The Court also notes that Petitioner’s custody redetermination hearing, resulting in
14 a $30,000 bond, was held on April 1, 2020 pursuant to 8 C.F.R. § 1236. (See Order of the
15 IJ.) Thus, this is not a case in which Petitioner alleges that he has been held for months
16 without a constitutionally-mandated bond hearing. C.f. Marroquin Ambriz v. Barr, 420 F.
17 Supp. 3d 953, 962 (N.D. Cal. 2019) (noting that “the vast majority of cases that have
18 waived exhaustion based on irreparable injury when an individual has been detained for
19 months without a bond hearing, and where several additional months may pass before the
20 BIA renders a decision on a pending appeal”) (emphasis added); De Paz Sales v. Barr,
21 No. 19-CV-04148-KAW, 2019 WL 4751894, at *4 (N.D. Cal. Sept. 30, 2019) (finding
22 irreparable harm excusing exhaustion where petitioner was detained for over a year
23
24
5 Petitioner also raises, for the first time in his Reply, that his continued quarantine in a “cohort” places
him at a heightened risk of suffering irreparable harm, because it “would seem only to exacerbate the
25 factors—such as the impossibility of social distancing—that make detention centers such as OMDC a
‘tinderbox’ for COVID-19.” (Reply at 4). Given that Petitioner was housed in a quarantined cohort as
26 of April 9, 2020 (see Farabaugh Decl. ¶ 12a–c), the 14-day incubation period would have ended—
assuming no new positive cases—on April 23, 2020 at the latest. The Court does not know whether
27 Petitioner’s housing pod remains cohorted at this time. And without an otherwise sufficient showing
from Petitioner that “irreparable injury will result” from his detention, see Laing, 370 F.3d at 1000
28 (emphasis added), Petitioner’s undeveloped quarantine “cohort” argument does not justify excusing the
1 without a bond hearing); Villalta v. Sessions, No. 17-CV-05390-LHK, 2017 WL
2 4355182, at *3 (N.D. Cal. Oct. 2, 2017) (finding irreparable harm where petitioner had
3 “already been unlawfully deprived of a bond hearing for at least two months”). Further,
4 Petitioner filed a Notice of Appeal to the BIA on April 13, 2020, and therefore cannot
5 establish, at this point, that he has waited an inordinate amount of time for the BIA to act.
6 C.f. Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1677332, at *3 (N.D. Cal. Apr. 6,
7 2020) (finding waiver where “the BIA proceeding has already exceeded both parties’
8 estimation of when a decision could be expected, and that there is nothing before the
9 court that indicates a decision will be shortly forthcoming”).
10 As such, the Court finds no valid basis for waiver of exhaustion on the facts
11 presented.
12 B. Continued Detention as a Due Process Violation
13 The Court turns to Petitioner’s second claim that his continued detention at OMDC
14 violates due process because it constitutes punishment and endangers his life.
15 As stated previously, Petitioner can demonstrate punitive conditions by showing
16 that the challenged condition is: (1) expressly intended to punish; or (2) not rationally
17 related to a legitimate government objective or was excessive to that purpose. Kingsley v.
18 Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473–74 (2015). In addition, the
19 government has “some responsibility for [the] safety and general well-being” of persons it
20 takes into its custody. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,
21 199–200 (1989). If the government affirmatively acts in an objectively unreasonable
22 manner to place a detainee “‘at substantial risk of suffering serious harm,’” it is said to
23 have acted with “deliberate indifference” and can be held liable for constitutional
24 violations. See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006); see
25 also Smith v, Wash., 781 F. App’x 595, 588 (9th Cir. 2019).
26 In his Reply brief, Petitioner cites numerous articles post-dating the filing of his
27 initial Petition that he alleges contradict Respondents’ representations about the adequacy
28 of its measures to abate the spread of the virus and provide for detainees’ reasonable
1 safety at OMDC. (Reply at 3–4.) These citations highlight numerous problems at
2 OMDC, including conditioning mask distribution on the signing of liability waivers, the
3 failure to distribute replacement masks resulting in a hunger strike, and statements by
4 participants that detainees are not being tested and OMDC staff are not using masks or
5 gloves. (Id. at 2–3.)
6 The Court recognizes that Petitioner’s citations to external sources could contain
7 more recent information that accurately reflects the rapidly-changing circumstances at
8 OMDC. However, the Court cannot take judicial notice of the facts in the articles cited
9 by Petitioner because they are not generally known and are not capable of accurate and
10 ready determination by resort to indisputable sources. See Fed. R. Evid. 201(b); see Van
11 Saher v. Norton Simon Museum of Art, 592 F.3d 954, 960 (9th Cir. 2010) (courts may
12 take judicial notice of news articles as evidence of “what was in the public realm at the
13 time, not whether the contents of those articles were in fact true”), cert. denied, 131 S.Ct.
14 3055 (2011); Walker v. Woodford, 454 F. Supp. 2d 1007, 1024 (S.D. Cal. 2006), aff’d in
15 part, 393 F. App’x 513 (9th Cir. 2010) (finding that declarations from other inmates,
16 various correspondence, newspaper articles, and information from an internet website did
17 not “fall into the limited category of documents that can be judicially noticed under Rule
18 201” for conditions of confinement claim).
19 Further, because the facts alleged in these articles are being offered for the truth of
20 the matter asserted, they contain hearsay and are not admissible pieces of evidence. See
21 Fed. R. Evid. 801(c); AFMS LLC v. United Parcel Serv. Co., 105 F. Supp. 3d 1061, 1070
22 (C.D. Cal. 2015) (“It is axiomatic to state that newspaper articles are by their very nature
23 hearsay evidence and are thus inadmissible if offered to prove the truth of the matter
24 asserted[.]”) (citation and internal quotations omitted), aff’d sub nom., 696 F. App’x 293
25 (9th Cir. 2017); Green v. Baca, 226 F.R.D. 624, 637–38 (C.D. Cal. 2005) (“Even when
26 the actual statements quoted in a newspaper article constitute nonhearsay, or fall within a
27 hearsay exception, their repetition in the newspaper creates a hearsay problem.”); see also
28 Eisenstadt v. Allen, 113 F.3d 1240 (9th Cir. 1997) (holding that newspaper articles do not
1 fall under residual exception to hearsay absent extraordinary circumstances that provide
2 sufficient guarantees of trustworthiness).
3 Similarly, the Court cannot take into consideration the declaration submitted in
4 another case that Petitioner contends undermines Respondents’ representations about the
5 precautionary measures taken by OMDC. (See Sagastume v. Archambeault, Case No.
6 3:20-cv-00658-LAB-MSB (C.D. Cal. Apr. 3, 2020), Decl. of Anne M. Hysell, ECF No.
7 26-1.) “As a general rule, a court may not take judicial notice of proceedings or records
8 in another case so as to supply, without formal introduction of evidence, facts essential to
9 support a contention in a cause then before it.” M/V Am. Queen v. San Diego Marine
10 Const. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983); see also Townes v. Paule, 407 F.
11 Supp. 2d 1210, 1217 n.5 (S.D. Cal. 2005) (citation omitted) (“‘Facts in the judicial record
12 that are subject to dispute, such as allegations in affidavits, declarations, and probation
13 reports, are not the proper subjects of judicial notice even though they are in a court
14 record.’”) (quoting B. Jefferson, California Evidence Benchbook (3d ed. 2003 update),
15 § 47.10).
16 While the Court acknowledges that many other lawsuits have been filed raising
17 questions about the facility’s response to the COVID-19 outbreak, it cannot take as true
18 the facts alleged in documents supporting the claims asserted in those cases. Thus, the
19 Court cannot consider Petitioner’s proposed evidence about the deficiencies at OMDC to
20 assess Petitioner’s risk of harm in these circumstances. Notably, in addition to the myriad
21 of aforementioned evidentiary issues, Petitioner does not claim that any of the
22 circumstances reported in these articles and declarations apply to him: for example, that
23 he is being denied a mask, that staff he comes in contact with are not using masks or
24 gloves, or that he is being denied a test.
25 Without having marshaled evidence of Respondents’ inadequate response to the
26 outbreak that is properly before the Court, Petitioner’s argument is the same as that made
27 in his Motion for a TRO. Because Petitioner’s arguments echo those made previously,
28 they suffer from the same deficiencies. (See Order Denying Mot. for TRO at 7–9.)
1 |] Accordingly, the Court once again finds that Petitioner has not sufficiently shown thai
2 ||Respondents’ measures were objectively unreasonable such that Petitioner has beer
3 placed at a substantial risk of suffering serious harm, such that his continued detentior
4 || violates his due process rights. (See Order Denying Mot. for TRO at 7-9.)
5 CONCLUSION AND ORDER
6 For the reasons stated in this Order, Petitioner’s grounds for his § 2241 petition
7 ||fail. Accordingly, the Court GRANTS Respondents’ Motion and DISMISSES
8 || WITHOUT PREJUDICE the Petition. Petitioner may renew his request for relief upon
9 learning any additional information about the circumstances at OMDC and marshaling
10 || additional, admissible evidence to adequately support his arguments.
1 IT IS SO ORDERED.
12 ,
13 || DATED: May 1, 2020 (pill 4 (Aashan. 6
14 United States District Judge
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