The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PETER O. C., Civil Action No. 20-4622 (SDW)
Petitioner,
v. OPINION
JOHN TSOUKARIS, et al.,
Respondents.
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Peter O.
C., filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Also before the Court is Petitioner’s motion
seeking a temporary restraining order. (ECF No. 3). Following an order to answer, the
Government filed responses to the petition and motion (ECF No. 7), to which Petitioner has
replied. (ECF No. 9). For the following reasons, this Court will deny the petition without prejudice
and will deny the motion as moot in light of the denial of Petitioner’s habeas petition.
I. BACKGROUND
Petitioner is a native and citizen of Ghana who was admitted to the United States for a
period not to exceed six months in May 2014. (Document 6 attached to ECF No. 7 at 6). Petitioner
overstayed his visa, however, and illegally remained in the United States after its expiration. (Id.).
Petitioner was thereafter convicted of receiving stolen property with a value of more than $75,000
on August 15, 2018. (Id.). Petitioner was sentenced to seven years imprisonment as a result. (Id.).
On January 23, 2020, Petitioner was taken into immigration custody and placed in removal
proceedings based on his criminal history and overstay. (Id. at 3-9). Petitioner has been detained
pursuant to the Government’s mandatory detention authority under 8 U.S.C. § 1226(a) since that
time. (Id. at 11). Petitioner suffers from hypertension and obesity, both of which he, through his
medical expert, contends place him at risk of severe complications were he to become infected
with COVID-19. (See Document 8 attached to ECF No. 9). Petitioner’s hypertension is being
treated, however, at the facility – by the admission of Petitioner’s own expert, he has been treated
at least twice for that issue during the month of April, during which he was provided medication
and was seen by medical staff including a doctor.1 (Id.).
II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is
currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
1 Petitioner’s medical expert does contend that the treatment may not have been sufficient, or that
the jail’s medical staff may not have done enough diagnostic work on Petitioner during these sick
visits. (Document 8 attached to ECF No. 9 at 4). The expert makes these inferences, however,
largely based on what is not stated in the brief notes contained in Petitioner’s medical records, and
his assumption that Petitioner’s vital signs were not checked because it is not explicitly noted in
Petitioner’s chart, as well as the expert’s unfamiliarity with a term used by jail medical staff. (Id.).
The record of this matter is at best unclear whether Petitioner’s expert’s inferences are accurate.
B. Analysis
In his habeas petition and briefing in this matter, Petitioner argues that he should be
released from prison because he has been subjected to punitive conditions of confinement and has
received insufficient medical care in light of his medical history and the threat posed by the
COVID-19 epidemic. As this Court recently explained, assuming the COVID-19 pandemic is a
sufficiently severe circumstance that would warrant permitting a habeas claim based upon
Petitioner’s conditions of confinement, claims such as Petitioner’s
could be construed in two fashions – as a claim asserting that the jail
has been deliberately indifferent to Petitioner’s medical needs, or as
a claim asserting that the conditions under which he is detained
amount to an unconstitutional application of punishment without a
supporting conviction in violation of the Due Process Clause. As
there is no clear guidance from the Courts of Appeals or Supreme
Court on how to adjudicate such claims in light of an ongoing
pandemic, many courts have found that insufficient jail action in
light of the virus can serve as a basis for release under [the
circumstances], see, e.g,, Rafael L.O. v. Decker, No. 20-3481, 2020
WL 1808843 (D.N.J. Apr. 9, 2020); Cristian A.R. v. Thomas
Decker, et al., No. 20-3600 (D.N.J. Apr. 12, 2020); Basank v.
Decker, No. 20-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020);
Castillo v. Barr, No. 20-00605, 2020 WL 1502864 (C.D. Cal. Mar.
27, 2020); Thakker v. Doll, No. 20-480, 2020 WL 1671563 (M.D.
Pa. Mar. 31, 2020); Malam v. Adducci, No. 20-10829, 2020 WL
1672662 (E.D. Mich. Apr. 5, 2020); while many others have found
that, where the jail takes adequate precautions in light of a given
petitioner’s medical history, no such relief is warranted. See, e.g.,
Dawson v. Asher, No. 20-409, 2020 WL 1304557 (W.D. Wa. Mar.
19, 2020) (rejecting TRO request because detainees could not
succeed on merits of request for relief without at least showing
concrete likelihood of actual injury as opposed to mere speculation
in light of the legitimate governmental interest in detaining aliens
throughout removal proceedings); Sacal-Micha v. Longoria, No.
20-37, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020) (rejecting
habeas TRO based on medical conditions of confinement claim as
that claim normally must be brought under § 1983, and in any event
such a claim is not likely to succeed in the absence of a showing of
deliberate indifference to the detainees medical needs); Lopez v.
Lowe, No. 20-563, 2020 WL 1689874 (M.D. Pa. Apr. 7, 2020)
(denying request for TRO by habeas petitioner as he could not
establish deliberate indifference to his medical needs).
Turning first to the issue of Petitioner’s medical needs, for
an immigration detainee to make out a claim for relief based on a
jail official’s insufficient treatment or deliberate indifference to his
medical needs under the Due Process Clause, he must show both
that he is subject to a sufficiently serious medical need, and that jail
officials have been deliberately indifferent to that need. See, e.g.,
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581-82 (3d
Cir. 2003); Parkell v. Morgan, 682 F. App’x 155, 159-60 (3d Cir.
2017); King v. Cnty. of Gloucester, 302 F. App’x 92, 96 (3d Cir.
2008). Even assuming that [the threat of] COVID-19 in and of itself
is a sufficiently serious need, or that Petitioner’s [asthma] is
sufficiently serious to oblige the jail to take action to alleviate the
risk presented by the virus, success on such a claim would still
require Petitioner to show that officials at the jail were deliberately
indifferent to that need – i.e. that Respondents “kn[e]w of and
disregard[ed] an excessive risk to inmate health or safety.” Natale,
318 F.3d at 582 (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). This requires that the [respondent] was “both [] aware of
facts from which the inference could be drawn that a substantial risk
of serious harm exists and . . . dr[e]w th[at] inference.” Id. Where
some treatment or proscriptive action designed to alleviate the
medical need has been provided and the dispute is over the adequacy
of the treatment or preventative steps taken, federal courts “are
generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.’” Everett v.
Nort, 547 F. App’x 117, 121 (3d Cir. 2013) (quoting United States
ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n. 2 (3d Cir.
1979)). Neither a detainee’s subjective dissatisfaction or
disagreement with the professional judgment of medical staff as to
how best to deal with a medical issue are normally sufficient to
establish deliberate indifference. Hairston v. Director Bureau of
Prisons, 563 F. App’x 893, 895 (3d Cir. 2014); White v. Napolean,
897 F.2d 103, 110 (3d Cir. 1990); Andrews v. Camden Cnty., 95 F.
Supp. 2d 217, 228 (D.N.J. 2000).
. . . .
. . . A claim challenging conditions [of confinement] under
the Due Process Clause [under the theory that those conditions
amount to punishment in the absence of a supporting conviction in
turn] has both a subjective and objective component – the objective
component requiring a showing that the deprivation involved in the
conditions was sufficiently serious, and the subjective component
requiring that jail officials act with a sufficiently culpable mind.
[Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (citing Bell v.
Wolfish, 441 U.S. 520, 535-36 (1979))]. The subjective component
can be established by showing an express intent to punish; or by
showing that the conditions in question were arbitrary, purposeless,
or excessive in relation to the ascribed governmental objective. Id.
Conditions which are reasonably related to a legitimate government
interest and which are not excessive in relationship to that interest
will therefore not support a claim in the absence of a showing of an
express intent to punish. Id. at 67-69. . . . [I]mmigration detention
is clearly reasonably related to a legitimate government interest –
the Government’s interest in securing those subject to removal
proceedings pending the conclusion of those proceedings in order to
ensure they do not abscond and that they attend those proceedings
while also ensuring they are not a danger to the community in the
meantime. See, Dawson, 2020 WL 1304557 at *2; see also
Jennings, 138 S. Ct. at 836; Demore v. Kim, 538 U.S. 510, 523
(2003); Zadvydas, 533 U.S. at 690-91.
Jorge V.S. v. Green, No. 20-3675, 2020 WL 1921936, at *2-4 (D.N.J. Apr. 21, 2020).
In this matter, Petitioner is detained pursuant to the Government’s mandatory detention
authority pursuant to 8 U.S.C. § 1226(c), which applies to aliens such as Petitioner who have
qualifying convictions. As the Supreme Court has held, mandatory detention under § 1226(c)
“serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their
removal proceedings,” an interest that the Court went to considerable lengths was compelling and
a more than adequate basis for mandatory detention throughout the pendency of those proceedings.
See Demore, 538 U.S. at 518-28. Both the Third Circuit and this Court have further recognized
that the statute further serves the purpose of ensuring that criminal aliens do not present a danger
to the community while they are in removal proceedings. See, e.g., Chavez-Alvarez v. Warden
York County Prison, 783 F.3d 469 (3d Cir. 2015); Dryden v. Green, 321 F. Supp. 3d 496, 502
(D.N.J. 2018). Indeed, these interests are so compelling that this Court has recognized that the
statute will ordinarily support continued detention without so much as a bond hearing for well over
a year. Id. There is thus no question that detention under the statute both serves a legitimate
government interest.
Turning to the conditions of confinement, it is clear that the jail in which Petitioner is
detained has taken numerous concrete steps to alleviate and mitigate the risk COVID-19 presents
to its inmate population. The jail has increased the availability of medical staff; insured nurses,
practitioners, and doctors are always either on hand or on call at all times; limited or eliminated
entrance into the facility of outside vendors, volunteers, and visitors; has required medical
screenings for all incoming detainees and staff members including temperature checks upon
arrival; begun the daily monitoring and separate housing of those detainees who suffer from health
conditions putting them at high risk under CDC guidelines; established a quarantine area for those
who become infected; increased supplies on site including cleaning supplies and COVID-19
testing kits; increased cleaning staff and has begun sanitizing and cleaning housing units “no less
than three times per day;” provided “unlimited” soap and water access for all detainees and
provided disinfectant spray upon request under the supervision of jail staff; begun placing new
arrivals in quarantine for fourteen days before placing them in general population; provided masks,
gloves, and full protective equipment to jail staff; and has begun rolling out “rapid COVID-19
testing for its entire population” to support the jail’s quarantine and containment strategy.
(Document 5 attached to ECF No. 7 at 1-14). The jail has also put into place policies for handling
infected inmates including immediate medical evaluations for those showing symptoms, providing
daily sick calls to detainees, providing surgical masks to those with signs or symptoms of
respiratory illness, full testing at University Hospital for any detainee who shows moderate to
severe symptoms, the quarantining of those who show even mild symptoms, and the isolation of
detainees who have tested positive for the virus. (Id. at 8-10). Where warranted, antiviral
medications are provided, and regardless of the need for medications, those who test positive or
show even mild symptoms are quarantined for fourteen days in single occupancy cells “to ensure
social distancing.” (Id. at 9-10). All of these measures taken to limit or alleviate the effects of
COVID-19 on the jail population clearly show that the conditions to which Petitioner has been
subjected are not excessive in relation to the Government’s interest in detaining criminal aliens,
and that the conditions under which Petitioner has been confined are instead rationally related to a
legitimate government interest and therefore pass constitutional muster. As Petitioner has not
otherwise shown any express intent to punish him, Petitioner’s conditions of confinement claim
thus fails.
Petitioner’s claim fairs no better when treated as a direct medical claim. Both the concrete
steps outlined above and the specific treatment and medication Petitioner has received indicate
that the jail staff have not been deliberately indifferent to his needs, but have instead taken steps
to protect him and have treated his medical issues when he has brought them to the attention of the
medical staff. The disagreement with the treatment he received expressed by Petitioner’s medical
expert is insufficient to raise Petitioner’s dispute to the level of a constitutional violation, White v.
Napolean, 897 F.2d at 110, and is patently insufficient to warrant the extreme form of relief
Petitioner requests in light of Petitioner’s criminal history, the treatment Petitioner has received,
and the concrete steps the jail has taken to protect Petitioner. V.S., 2020 WL 1921936 at *3 (“That
these steps do not guarantee Petitioner will remain healthy and free of the disease is immaterial,
the constitution requires no such perfection.”); see also Sacal-Micha; 2020 WL 1518861 at *6.
As this Court finds that Petitioner has neither shown that jail staff have been deliberately
indifferent to his medical needs, nor that he has been subjected to unconstitutional conditions of
confinement, Petitioner’s habeas petition is denied, and Petitioner’s motion seeking a temporary
restraining order is denied as moot in light of the denial of this matter.
III. CONCLUSION
For the reasons expressed above, Petitioner’s habeas petition (ECF No. 1) is DENIED
WITHOUT PREJUDICE and his motion seeking a temporary restraining order (ECF No. 3) is
DENIED as moot in light of the denial of his habeas petition. An appropriate order follows.
Dated: May 7, 2020 s/Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge