The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILMER M. R.-R., Civil Action No. 20-6773 (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, Wilmer
M. R.-R., 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 Nos. 13-16, 20), to which Petitioner
has replied. (ECF Nos. 19, 21). The parties also filed consent motions seeking to seal Petitioner’s
medical records. (ECF Nos. 6, 17). For the following reasons, this Court will deny the petition
without prejudice, will deny the motion as moot in light of the denial of Petitioner’s habeas
petition, and will grant the motions to seal.
I. BACKGROUND
Petitioner is a twenty-five year-old native and citizen of the Dominican Republic.
(Document 1 attached to ECF No. 1 at 2). Petitioner illegally entered the United States without
inspection or admission sometime in or around 1997 when he was two years old. (Id.; Document
13 attached to ECF No. 8 at 2). In 2014, Petitioner applied for and was granted deferred action
under the Deferred Action for Childhood Arrivals (DACA) program. (Document 8 attached to
ECF No. 13 at 2). That deferred action expired, however, in March 2016 when Petitioner failed
to reapply for that status. (Id.). During his time in this country, Petitioner has amassed a
considerable criminal history both as a juvenile and as an adult. (See, e.g., Document 8 attached
to ECF No. 13 at 2-3; Document 9 attached to ECF No. 13). Most recently, and most relevant to
this matter, Petitioner was convicted of felony possession of a controlled substance, specifically
heroin, and resisting arrest and eluding in 2016 in New Jersey. (Id.). Based on these convictions
and Petitioner’s illegal entry status, immigration officials placed a detainer request upon him while
he was imprisoned, and upon his release from his criminal sentence, Petitioner was taken into
immigration custody pursuant to 8 U.S.C. § 1226(c) and served with a notice to appear for removal
proceedings on February 27, 2020. (Document 10 attached to ECF No. 13). Petitioner has
remained detained pursuant to § 1226(c) since that time. While Petitioner requested and received
a custody hearing before an immigration judge in March 2020, he was denied bond as the
immigration judge determined that his drug conviction and conviction for a crime of moral
turpitude both rendered him subject to mandatory detention without bond under § 1226(c).
(Document 11 attached to ECF No. 13). Following the arrival of COVID-19 in the Essex County
facility, Petitioner also requested release on humanitarian parole, which was denied on May 14,
2020. (Document 12 attached to ECF No. 13).
In early June, one of Petitioner’s lawyers contacted Director Ortiz of the Essex County
facility, and requested that Petitioner be listed as a medically vulnerable detainee in support of
Petitioner’s attempts to seek release from the Government. (Document 1 attached to ECF No. 19
at 24). After conferring with Dr. Anicette, the head of the facility’s medical facility, Ortiz referred
Petitioner to immigration officials “for possible release consideration.” (Id.). The Government,
however, determined that Petitioner’s release was not warranted. Although Petitioner contends
that the referral amounted to a direct recommendation by Anicette and Ortiz that the Government
should release Petitioner, and that the decision to deny him release was made by the Government
in contradiction to Anicette’s medical advice, Dr. Anicette clarified in a certification that while he
“concurred” that Petitioner should be referred for release consideration, he “made that referral in
response to [Petitioner’s lawyer’s] request” and neither he nor his medical staff “advised ICE that
it should release [Petitioner] for either medical or mental health reasons.” (Document 1 attached
to ECF No. 20). Indeed, Dr. Anicette certified that the jail’s medical department “is capable of
treating appropriately [Petitioner’s] medical and mental health conditions.” (Id.).
When he was first detained at the Essex County Correctional Facility, Petitioner, who at
the time reported being in good health (see Document 8 attached to ECF No. 13 at 1), underwent
an intake screening. During this screening, Petitioner indicated only two ongoing medical
conditions – foot pain deriving from a prior Achilles tendon surgery, and hypertension for which
he received the medication Norvasc – and a history of having received psychiatric treatment in
childhood. (ECF No. 15 at 3-8). Petitioner also received a TB screening and chest X-ray, neither
of which indicated any need for treatment. (Id. at 8-10). On February 29, 2020, Petitioner was
seen by a nurse practitioner, who again noted Petitioner’s history of hypertension which was being
ably treated by Norvasc, but ordered diagnostic blood tests. (Id. at 12-13). These blood tests
indicated “slightly elevated” levels of a chemical called ALT, which could, but need not be
indicative of liver disease. (Id. at 16-17; ECF No. 14 at 3-4). After Petitioner confirmed that he
had received similar results in the past, a hepatitis test was ordered, which indicated that Petitioner
did not have hepatitis C and was immune to hepatitis B. (Id. at 16-20). On March 8, Petitioner
was also scheduled for an initial psychiatric evaluation, but he refused to meet with mental health
professionals. (Id. at 20).
Petitioner first sought medical aid in the jail on March 9, 2020, claiming that he had pain
in his right Achilles tendon relating to his having had his legs cuffed during his transfer to the jail
and his prior surgery. (Id. at 21). Petitioner’s foot was evaluated and he was provided pain
medication. (Id. at 22-23). Petitioner returned on March 11, claiming that the medication was not
alleviating his pain, and he was provided with a higher dose of pain medication and additional
medication to help address the issue. (Id. at 26-27). On March 17, he again returned claiming his
pain was still not fully addressed by his medication. (Id. at 28). He was seen by a nurse practitioner
the following day who continued his medication and ordered an X-ray. (Id. at 28-31).
On March 25, 2020, Petitioner again sought medical treatment, this time for difficulty
sleeping and racing thoughts. (Id. at 33-34). He was referred for mental health treatment. (Id. at
34-35). Petitioner returned the following day with resumed foot pain and a swollen ankle. (Id. at
36-37). A nurse provided him with more pain medication, medication for his athlete’s foot,
instructions to rest and elevate his ankle, and to return if the issue persisted. (Id.). On March 27,
2020, Petitioner was seen by a mental health worker and evaluated relating to his sleep issues and
claimed anxiety related to the COVID-19 pandemic. (Id. at 40-41). Petitioner received a psych
referral as a result. (Id. at 41-42). Petitioner was seen by a psychiatrist on March 31, who
diagnosed him with adjustment disorder with anxiety and ordered medication to help Petitioner
deal with his anxiety. (Id. at 44-45). Petitioner thereafter received a psychiatric follow up visit on
April 6. (Id. at 51-52).
On April 17, Petitioner again returned to medical, stating that he had not taken his blood
pressure medication that day. (Id. at 53). He was seen by a nurse practitioner. (Id. at 54-55). On
April 18, Petitioner returned for a sick call, complaining of asthma related breathing issues, for
which he claimed he had been treated in the past. (Id. at 56). Petitioner’s vitals were taken and
found to be normal, and he was provided albuterol to aid with his mild asthma. (Id. at 56-59). On
April 24, 2020, Petitioner was seen by the psychiatrist for a mental health follow-up and his anxiety
medication was changed. (Id. at 61-65). On May 3, Petitioner returned to medical claiming
renewed leg pain and was evaluated by a nurse, resulting in further evaluation by medical
professionals on May 7. (Id. at 65-67). As a result, he was again given an X-ray of his leg and
pain medication. (Id. at 67-69). On May 11 and May 28, he received additional mental health
follow-ups, and his anxiety medication was adjusted on both occasions. (Id. at 69-72, 75-77). On
May 28, 2020, Petitioner’s asthma medication was also changed to a different form of inhaler after
a follow-up medical visit and asthma evaluation, during which Petitioner confirmed that his
“asthma got better.” (Id. at 79-81). Petitioner received a follow-up for his foot issues on June 1,
at which point his X-rays were found to be negative for any visible problems. (Id. at 85-86). On
June 1, Petitioner was also given a COVID-19 antibody test screening, which revealed that
Petitioner tested positive for antibodies, indicating that it is likely that Petitioner had already had,
and was now likely immune to, the virus. (Id. at 86).
On June 2, Petitioner sought further treatment, claiming that his transfer back into a room
with another inmate had caused him more anxiety as he was afraid of getting sick. (Id. at 87-89).
Petitioner also complained of more ankle pain. (Id. at 89). Petitioner was moved to a bottom
bunk, given ibuprofen, and moved to a different location within the facility’s dorms. (Id. at 89-
93). On June 5, Petitioner received a follow up mental health visit after he complained of increased
anxiety, and his medication was again adjusted. (Id. at 90-93). On June 7, Petitioner was given
further blood tests, following which Petitioner was advised to start a diet and exercise more to
address his lipid issues. (Id. at 98-99). Nothing in Petitioner’s medical records indicates that he
ever had a fever or reported any COVID-like illness or breathing issues not related to his asthma.
(Id. at 1-129).
In support of his petition, Petitioner has submitted two certifications from a medical expert,
Dr. Kim Strong Griswold, addressing his medical issues and vulnerability to COVID-19.
(Document 3 attached to ECF No. 1; Document 1 attached to ECF No. 19). In her certifications,
Dr. Griswold opines that, based on Petitioner’s medical records, she believes that Petitioner is at
“high risk of serious medical complications” if he were to contract COVID-19. (Document 3
attached to ECF No. 1 at 6). The doctor bases this conclusion on Petitioner’s obesity, and his
history of asthma, anxiety, and depression, as well as her belief that Petitioner’s ALT levels could
be indicative of “liver disease,” all of which she believes place Petitioner at increased risk. (Id. at
6).
In opposition, the Government has provided a certification from Dr. Carl Postighone. (ECF
No. 14). In his certification, Dr. Postighone disputes that Petitioner’s mental health issues or
medication put him at increased risk, and argues that, even if Petitioner does have asthma, that
asthma is at worst quite mild and not likely to greatly exacerbate a potential COVID-19 infection.
(Id. at 3). He further disputes the suggestion that Petitioner has liver disease – noting that nothing
in the record suggests this, and Petitioner’s raised ALT levels could not be attributed to liver issues
rather than Petitioner’s obesity based on the current record. (Id. at 3-4). Likewise, Dr. Postighone
asserts that Petitioner’s hypertension is not severe and is well managed by Petitioner’s current
medication, and thus is unlikely to exacerbate a potential COVID-19 infection. (Id.). Based on
his evaluation of Petitioner’s records, and Petitioner’s youth, Dr. Postighone opines that Petitioner
is in an “extremely low risk category” for serious COVID-19 complications. (Id. at 4-5). Finally,
the doctor opines that Petitioner, who at the time had been seen by medical staff at the jail at least
twenty-three times in a four month period, had received medical care “well above national
communal standards” and likely better than Petitioner would have received outside of the jail. (Id.
at 5).
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).
B. Analysis
In his habeas petition and briefing, Petitioner argues that he should be released from
immigration detention 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 [asthama] 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 detainees 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 under 8 U.S.C. § 1226(c), which applies to aliens such as Petitioner who have qualifying
convictions, such as Petitioner’s drug and moral turpitude 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 to explain was compelling and a more than adequate basis for mandatory
detention throughout the pendency of removal 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., Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 209
(3d Cir. 2020); 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 even support continued detention without so
much as a bond hearing for well over a year absent other circumstances compelling such a hearing.1
Id.; see also Santos, 965 F.3d at 211 (rejecting a bright line rule requiring a bond hearing after any
1 In his petition, Petitioner does not argue that his detention, which at this point has not yet crested
six months, has become so prolonged as to require a bond hearing, nor does he request a bond
hearing under Chavez-Alvarez, Santos, or their progeny. Absent the showing required by Santos
to warrant a bond hearing – that the length, reasons for delay, and punitive nature or lack thereof
of civil detention weigh in favor of a finding that Petitioner’s detention has become so prolonged
that its continuance without a bond hearing violates the petitioner’s Due Process rights – this Court
concludes that Petitioner’s current detention without a bond hearing remains constitutional under
the statute and thus supports the Government’s strong interest in detaining aliens with qualifying
criminal convictions pending the conclusion of removal proceedings. 965 F.3d at 211-213.
set period of time, even one over a year, and instead requiring duration of detention to be only one
factor to be considered). It is therefore clear that Petitioner’s continued detention pending the
resolution of his removal proceedings serves a clear and legitimate government interest.
Turning to the conditions of Petitioner’s confinement, 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 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; made a nurse available for all medical complaints in “every housing unit twice daily;”
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 access to soap and unlimited access to water” to 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 for use when necessary; and “is in the process of
testing its entire population using rapid testing antibody screening” for COVID-19 antibodies to
support the jail’s quarantine and containment strategy. (Document 2 attached to ECF No. 20 at 2-
17). 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 11-14). 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. (Id. at 11-13). 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 fails to set forth a basis for habeas relief.
Petitioner’s claim is no stronger when construed as a direct medical claim. Both the
concrete steps outlined above and the significant medical 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. As Petitioner has failed to show that staff were deliberately
indifferent to his needs, his medical claim must fail, notwithstanding the fact that the jail cannot
guarantee that he will not become ill with COVID-19. 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. Given Petitioner’s interests
in the confidentiality of his medical records, the consent of the parties, and the fact that filings in
immigration habeas cases are not presumptively available to the public at large, this Court will
grant the motions to seal Petitioner’s medical records.
III. CONCLUSION
For the reasons set forth 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. The parties’ consent motions to seal
Petitioner’s medical records (ECF Nos. 6, 17) are GRANTED. An appropriate order follows.
s/Susan D. Wigenton
Dated: August 14, 2020 Hon. Susan D. Wigenton,
United States District Judge