CASTRO GOMEZ v. ANDERSON

**NOT FOR PUBLICATION**

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSE C. G., Civil Action No. 20-7313(CCC)

Petitioner,

v. OPINION

WILLIAM J. ANDERSON, et al.,

Respondents.

CECCHI, District Judge.

Presently before the Court is Petitioner Jose C. G.’s (“Petitioner”) motion seeking a

temporary restraining order in this habeas matter. ECF No. 5. The Government filed opposition

to the motion (ECF No. 10), to which Petitioner replied (ECF No. 14). Also before the Court is

Petitioner’s unopposed motion to seal his medical records. ECF No. 15. For the reasons set forth

below, Petitioner’s motion seeking a temporary restraining order is denied without prejudice, and

Petitioner’s motion to seal is granted.

I. BACKGROUND

Petitioner is a native and citizen of El Salvador in his late twenties who most recently

illegally entered the United States without inspection or admission at some point in 2016. ECF No.

10-7 at 1; ECF No. 3-1 at 7. Petitioner previously spent several years in the United States with a

family friend, but returned to El Salvador in 2010. ECF No. 3-1at 1–6. Both in the United States

and in El Salvador, Petitioner was involved in gang activity, and he received at least one juvenile

delinquency adjudication during his first stay in the UnitedStates. Id.; ECF No. 10-7at 2–3.

Following his return to the United States, Petitioner was arrested in 2018 on drug

possession charges and again in 2019 on robbery charges. ECF No. 10-7at 3. While in jailon the

robbery charge, Petitioner was served with a notice to appear in February 2019 and taken into

immigration custody. ECF No. 10-8. Petitioner was charged with being removable due to his

illegal entry into the United States,and is thus detained pursuant to the Government’s discretionary

detention pursuant to 8 U.S.C. § 1226(a). Id. An immigration judge denied Petitioner release on

bond in October 2019, finding that Petitioner had failed to show that he was not a danger to the

community. ECF No. 10-9 at 3. Petitioner appealed, but on February 14, 2020, the Board of

Immigration Appeals (“BIA”) dismissed his bond appeal and affirmed the denial of release on

bond. ECF No. 12-12.

In September 2019, Petitioner’s applications for relief from removal were denied and he

was ordered removed to El Salvador. ECF No. 10 at 13. Petitioner appealed to the Board of

Immigration appeals (see id.), but it appears from publicly available immigration records that his

appeal was dismissed by the BIA in July 2020. Petitioner isaccordinglynow detained pursuant to

a final order of removal.See 8 U.S.C. § 1231(a).1

Upon his transfer to immigration detention in February 2019, Petitioner received a medical

intake screening from a nurse at the Essex County Correctional Facility(“ECCF”). ECF No. 11-1

at 3. During that screening, Petitioner noted a history of alcohol abuse and that he had previously

been prescribed various medications. Id. Following his initial screening, Petitioner was seen by

1 The parties have not specifically provided the Court with documentation regarding Petitioner’s

appeal, nor have they informed the Court whether Petitioner has filed a petition for review with

the Third Circuit. Because the issues addressed in this opinion are applicable regardless of whether

Petitioner is detained pursuant to Section 1231(a) or whether he has reverted to pre-final order

status through a petition for review and stay of removal, the Court need not make a final

determination on the applicable detention status at this time.

a doctor on February 28, 2019. Id.at 11–13. As part of this visit, the doctor reviewed Petitioner’s

previously prescribed medications, noted that Petitioner was “doing well at present” with these

medications, and ordered them continued. Id.at 13–14. Petitioner was also provided antibacterial

ointment for some injuries which were in the process of healing. Id.at 14–15.

In June 2019, Petitioner reported having dental pain. Id. at 15. Petitioner was initially

scheduled for a dental appointment on June 18, but a security issue delayed his appointment to

July 3, 2019. Id. at 17. Following that dental appointment, Petitioner was referred for tooth

cleaning and to a dental surgeon for the extraction of several badly damaged teeth. Id. at 18–20.

Petitioner was also prescribed pain medication and antibiotics for his teeth. Id. On July 31, one of

the damaged teeth was extracted, but Petitioner refused to have the remaining teeth removed. Id.

at 21–23. On August 1, 2019, Petitioner was provided with a dental prophylaxis to aid with his

dental issues. Id.at 23–24. On September 28, 2019, Petitioner was seen by a doctor, although the

nature of that visit is unclear from Petitioner’s records. Id. at 24.

In mid-November 2019, Petitioner reported difficulty falling asleep and was seen by a

nurse and referred for further mental health treatment. Id. at 27. He was seen by a mental health

counselor on November 18, and was then scheduled to see a psychiatrist as he connected his

sleeping difficulties with his having witnessed “murders in his native country.” Id. at 28. The

following day, he was seen by a jail psychiatrist, who diagnosed Petitioner with adjustment

disorder with anxietyand prescribed him medication to help with his anxiety and sleep issues. Id.

at 30–31. On December 10, 2019, Petitioner received a follow-up appointment with the

psychiatrist, at which time Petitioner reported “some benefit” from his new medication, and his

medication was adjusted. Id. at 35. He received another follow-up appointment on January 7,

2020, during which he reported further benefits from his medication. Id. at 36–37. Following a

fight and short stint in a special housing unit after that fight, Petitioner was seen on January 20 by

a mental health counselor and reported that his medication was “working” and that he did not wish

to see the psychiatrist for further treatment at that time. Id.at 42.

On January 29, 2020, Petitioner reported flu-like symptoms, and was treated with pain and

cough medication. Id. at 43–44. On February 4, Petitioner received another psychiatric follow

up, but once again reported that the medication wasworking and that he had no further anxiety or

insomnia. Id. at 45. On February 7, Petitioner requested an appointment for vision issues. Id. at

49. Petitioner requested that he be permitted to have his plastic framed glasses sent from home,

and this request was approved. Id. at 51. Petitioner was also supplied with forms to request new

glasses should he need them. Id. On February 17, Petitioner reported pain in one of his eyes and

was providedwithpain medication and warm compresses. Id.at 53–55. OnFebruary 21, Petitioner

received another follow-up visit with the psychiatrist, and his medications were continued. Id. at

56–57. On February 26, Petitioner had an annual checkup, during which he had “no medical

complaints” but was determined to be obese based on weight gain in the previous year of detention.

Id.at 59–60. Petitioner was advised to engage in exercise, and given various tests, which showed

no issues of note. Id. at 60–72. Petitioner thereafter had dental and mental health checkups on

March 11 and 17, respectively. Id. at 72–75. As petitioner reported that his mental health

medications were not working as well as before, his medications were adjusted. Id. at 75–77.

Petitioner’s medications were adjusted again to aid with sleeping issues in May 2020. Id. at 91–

93. Petitioner’s sleep issues had resolved by the time he received another follow-up in June 2020.

Id.at 99–100.

Between March 24 and April 26, 2020 Petitioner appears to have contracted COVID-19.

Petitioner was given flu medication and had his vital signs monitored daily. Id. at 78–90.

Petitioner’s vital signs were again monitored regularly between May 14 and May 28 during which

time Petitioner was in medical isolation. Id. at 94–98. During this time, he was given a COVID-

19 antibody test on May 14, and received results indicating he had likely contracted and was in the

process of developing immunity to COVID-19. Id. at 97. Petitioner was released from isolation

on May 28 as he had been without significant symptoms consistently during his isolation period.

Id. at 98. On June 17, Petitioner reported acid reflux issues, and was provided with antacid

medication and a referral for a doctor visit. Id.at 101. Petitioner was seen bya doctor and provided

further antacid medication, and at his request was also given a medical slip providing for placement

in a bottom bunk due to pain resulting from an old leg injury. Id. at 103–04. On June 22, 2020,

Petitioner received another mental-health follow-up, and was noted to have remained “relatively

stable” and his medications were continued. Id.at 105-06.

In support of his petition, Petitioner has provided reports from proposed experts including

Dr. Johanna Fink. Dr. Fink opines, based on her review of Petitioner’s records that Petitioner

suffers from PTSD, anxiety, obesity, and a history of substance abuse, all of which place him at

“a significantly increased risk that he will suffer serious or fatal COVID-19 related complications.”

ECF No. 3-8 at 3. Dr. Fink therefore recommends Petitioner be “released from custody as soon

as possible.” Id.

In response, the Government has provided a declaration from Dr. Carl Postighone. ECF

No. 11. Having reviewed Petitioner’s records and the reports provided by Petitioner’s proposed

experts, Dr. Postighone opined that Petitioner is “an individual at no higher risk th[a]n the general

population,” noting that petitioner’s records indicated no signs of alcohol withdrawal, that no

evidence had been provided to indicate medical issues arising out of drug abuse, and that

Petitioner’s mental health issues were being addressed through “excellent care which would far

exceed” what Petitioner could expect in the community upon release including monthly follow-

ups from the jail’s psychiatrist. Id. at 5–6. Although Dr. Postighone recognized Petitioner to be

obese, he further opined that obesity is not in and of itself determinative of COVID-19 risk, and

Petitioner had presented no sign of any obesity co-morbidity which would lead to him being at

higher risk of COVID-19 complications, especially in light of his having apparently previously

contracted and overcome the virus in May 2020. Id.at 6-7.

II. DISCUSSION

A. Legal Standard

Injunctive relief is an “extraordinary remedy, which should be granted only in limited

circumstances.” Novartis Consumer Health v. Johnson & Johnson – Merck Consumer Pharms.

Co.,290 F.3d 578, 586 (3d Cir. 2002) (citation and quotation marks omitted). In order to establish

that he is entitled to injunctive relief in the form of a temporary restraining order,2 Plaintiff must

demonstrate that ‘(1) he is likely to succeed on the merits; (2) denial

will result in irreparable harm; (3) granting the injunction will not

result in irreparable harm to the defendants; and (4) granting the

injunction is in the public interest.’Maldonado v. Houston, 157 F.3d

179, 184 (3d Cir. 1998) (as to a preliminary injunction); see also

Ballas v. Tedesco, 41 F. Supp. 2d 531, 537 (D.N.J. 1999) (as to

temporary restraining order). A plaintiff must establish that all four

2The Third Circuit has recently reiterated that the relief available via a temporary restraining order

is “ordinarily [limited to] temporarily preserving the status quo,” and that injunctive relief going

beyond maintaining the status quo, such as the outright release of a detained alien, must instead

normally be obtained through a motion seeking a preliminary injunction. Hope v. Warden York

Cnty. Prison, 956 F.3d 156, 160–62 (3d Cir. 2020). The standard that applies to the grant of a

temporary restraining order is essentially identical to that which is applied when a party seeks a

preliminary injunction,other than the requirement that a preliminary injunction can only be issued

after an adversary has been provided notice and an opportunity to be heard. This Court’s reasoning

would be equally applicable to the extent that Petitioner’s motion is in effect, if not in name, a

motion seeking a preliminary injunction. See Wincup Holdings, Inc. v. Hernandez, No. 04-1330,

2004 WL 953400, at *2 (E.D. Pa. 2004) (“the standard for determining the applicability of a

temporary restraining order is identical to the test for determining the applicability of a preliminary

injunction”); see also Ward, 2012 WL 2341499 at *1.

factors favor preliminary relief. Opticians Ass’n of America v.

Independent Opticians of America, 920 F.2d 187 (3d Cir. 1990).

Ward v. Aviles, No. 11-6252, 2012 WL 2341499, at *1 (D.N.J. June 18, 2012). Plaintiff, as the

party seeking a temporary restraining order, must first demonstrate a “reasonable probability of

eventual success in the litigation.” Bennington Foods, LLC v. St. Croix Renaissance Group, LLP,

528 F.3d 176, 179 (3d Cir. 2008) (citation and quotation marks omitted). To satisfy this

requirement, “[i]t is not necessary that the moving party’s right to a final decision after trial be

wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case

showing a reasonable probability that it will prevail on the merits.” Ward, 2012 WL 2341499 at

*2 (quoting Oburn v. Sapp, 521 F.2d 142, 148 (3d Cir. 1975)).

To the extent that Petitioner’s requested relief is immediate release from detention, the

Third Circuit has historically authorized district courts reviewing habeas petitions by convicted

prisoners to enter an order granting bail pending the resolution of the petitioner’s habeas claims

under certain extraordinary circumstances. See, e.g., Lucas v. Hadden, 790 F.2d 365, 367–68 (3d

Cir. 1986). As bail pending a decision on a habeas petition is an extraordinary form of relief, it

will only be available where the petitioner raises “substantial constitutional claims upon which he

has a high probability of success, and . . . when extraordinary or exceptional circumstances exist

which make the grant of bail necessary to make the habeas remedy effective.” In re Souels, 688 F.

App’x 134, 135 (3d Cir. 2017) (quoting Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992).

“[V]ery few cases have presented extraordinary circumstances, and those that have seem to be

limited to situations involving poor health or the impending completion of the prisoner’s

sentence.” Id. (quoting Landano, 970 F.2d at 1239).

B. Analysis

In his motion, Petitioner argues that he should be released from immigration detention

because he has a high likelihood of success on his conditions of confinement claims –specifically

his claims that he has been subjected to punitive conditions of confinement without a supporting

conviction and that ECCF staff have inadequately responded to his medical needs in light of his

medical history and the threat of COVID-19.

The Third Circuit recently reiterated the standards applicable to such claims in its decision

in Hope v. Warden York County Prison, 972 F.3d 310 (3d Cir. 2020). As the Third Circuit

explained, in evaluating whether an alien’s conditions of confinement amount to undue

punishment, “[t]he touchstone for the constitutionality of detention is whether conditions of

confinement are meant to punish.” Id. at 325–27. In the absence of a showing that the detention

facility’s staff acted with an express intent to punish the petitioner, determining whether conditions

amount to unconstitutional punishment requires that the district court “consider the totality of the

circumstances of confinement, including any genuine privations or hardship over an extended

period of time, and whether conditions are (1) rationally related to their legitimate purpose or (2)

excessive in relation to that purpose.” Id. In reviewing the conditions and actions of detention

officials and their relation to the Government’s legitimate interest in detaining aliens pending the

conclusion of removal proceedings, reviewing courts “must acknowledge that practical

considerations of detention justify limitations on many privileges and rights,” and “ordinarily

defer” to the expertise of prison officials in responding to COVID-19 unless there is “substantial

evidence in the record that the officials have exaggerated their response” to the situation. Id.

Given the Government’s strong interest in detaining aliens subject to removal proceedings

and the deference due to the expertise of detention officials, the Third Circuit in Hope rejected the

argument that detention during the COVID-19 pandemic would amount to unconstitutional

punishment where the Government had taken concrete steps aimed at mitigating the threat posed

to detainees, notwithstanding serious pre-existing health conditions which may predispose those

detainees to serious complications should they contract the virus. Id. 327-29.

Turning to deliberate indifference medical claims, the Third Circuit reaffirmed that “[t]o

establish deliberate indifference, [the petitioner] must show the Government knew of and

disregarded an excessive risk to their health and safety.” Id. at 329 (citing Nicini v. Morra, 212

F.3d 798, 811 (3d Cir. 2000). The Court of Appeals further held that “[t]he context of the

Government’s conduct is essential to determine whether it shows the requisite deliberate

indifference,” and that, in evaluating this context, a reviewing court must defer to the expertise of

both medical officials and jail administrators and not assume a constitutional defect where concrete

action has been taken in response to the COVID-19 pandemic as “rules of due process are not

subject to mechanical application in unfamiliar territory.” Id. at 329–30 (quoting Cty. of

Sacramento v. Lewis, 523 U.S. 833, 850 (1998)). Thus, where the Government has taken concrete

steps towards ameliorating the medical effects of COVID-19 on a detention facility, a detainee

will fall “well short of establishing that the Government was deliberately indifferent toward [his]

medical needs” in light of the virus even though the Government cannot entirely “eliminate all

risk” of contracting COVID, notwithstanding even serious pre-existing medical conditions which

may exacerbate a COVID-19 infection should one occur. Id.at 330–31.

In this matter, it is clear in light of Hope that the Government has a clear and legitimate

interest in detaining Petitioner, an alien who has both been ordered removed and has previously

been found to be a danger to the community by an immigration judge. To show a likelihood of

success on the merits of his punitive conditions claim, Petitioner mustaccordinglyshow either that

ECCFand its staff acted with an express intent to punish him or that his conditions of confinement

are arbitrary, purposeless, or excessive and therefore unreasonable in light of that interest. Hope,

972 F.3d at 325–29; see also Stevenson v. Carroll, 495 F.3d 62, 67–68 (3d Cir. 2007); Daniel R.-

S. v. Anderson, No. 20-3175, 2020 WL 2301445, at *5–7 (D.N.J. May 8, 2020). As Petitionerhas

not alleged an express intent to punish him on the part of Respondents, he must therefore present

facts indicating that his current conditions are arbitrary, purposeless or excessive in light of that

clear interest in his detention.

Having reviewed the actions taken by ECCF to mitigate and alleviate the threat posed to

its detainees by COVID-19, this Court finds that Petitioner has failed to show that his conditions

of confinement are arbitrary, purposeless, excessive, or unreasonable. This Court so concludes as

it is clear that ECCF has taken considerable and substantial steps to mitigate the virus’s impact

upon its detainee population. Such steps include spacing out detainees as much as possible to

provide for social distancing, intake medical screenings for all incoming detainees, the provision

of on-site nurses at all times and doctors who are on site sixteen hours a day and otherwise on call

at all times, increased nurse visits to housing units, the suspension or limitation of entry into the

facility by outside vendors or volunteers, health screenings of employees and others permitted into

the facility, the provision of masks and protective equipment to staff and the provision of masks

to detainees, the provision of unlimited soap and water access to detainees, increased cleaning and

sterilization of the entire facilityincluding housing units, and the provision of disinfectants to staff

for use in between full cleanings. ECF No. 10-5 at 1–18. ECCF has also developed specific

protocols for the treatment of those who are or may be infected with COVID-19–those with mild

symptoms are placed in quarantine in single occupancy cells and treated in-house with daily

temperature monitoring, those with more severe symptoms are instead transferred to a hospital for

treatment, and those exposed to known cases but who are asymptomatic are cohorted in separate

units for fourteen days.Id.at 12–14. ECCFhas also used antibody testing to make determinations

as to who should be quarantined or placed in a cohorted unit among those who have not presented

symptoms of COVID-19. Id. at 17–18; ECF No. 10-6. Those such as Petitioner who test positive

for antibodies which indicate they are recovering from and developing immunity to the virus are

placed in quarantine. ECF No. 10-6at 5–6. Taken together, these concrete actionsto mitigate the

threat of COVID-19 and treat those infected with the virus clearly show that the conditions under

which Petitioner is detained are not arbitrary, excessive, or purposeless, but are instead rationally

related to the Government’s interest in Petitioner. Petitioner has therefore failed to show that he

is likely to succeed on the merits of his conditions of confinement claim. Hope, 972 F.3d at 325–

29; Daniel R.S.,2020 WL 2301445 at *7.

In light of the significant medical treatment and monitoring Petitioner has received while

detained, as well as the COVID-19 protocols outlined above, Petitioner has likewise failed to show

a reasonable likelihood of success on the merits to the extent he claims that ECCF has been

deliberately indifferent to his medical needs. Although this Court accepts the threat COVID-19

poses, and that Petitioner does, at the very least, have ongoing medical and mental health needs,

nothing Petitioner has provided indicates that ECCFand its staff have been deliberately indifferent

to those medical issues. Instead, the record indicates that the facility has been attentive to

Petitioner’s needs – Petitioner, upon reporting anxiety and difficulty sleeping was provided

medication and monitored monthly by a psychiatrist, he also received repeated dental care,

medication for pain or flu symptoms, and was seen by medical staff when he sought out treatment.

Medical staff have likewise provided Petitioner with regular monitoring, routine checkups, and

diagnostic testing while he has been detained. Combined with the numerous actions aimed at

alleviatingthe threat of COVID-19 discussed above, Petitionerhas failed to present facts showing

deliberate indifference on the part of medical staff, and ittherefore does not appear that Petitioner

will be able to show that staff recklessly disregarded Petitioner’s health or the risks posed by

COVID-19. Petitioner has therefore failed to show a likelihood of success on the merits to the

extent he asserts that the staff have been indifferent to his medical needs. Hope, 972 F.3d at 330–

31; Daniel R.S.,2020 WL 2301445 at *7.

As Petitioner has failed to show a likelihood of success on the merits as to his claims, he is

not entitled to preliminary injunctive relief at this time and his motion seeking a temporary

restraining order is therefore denied. Ward, 2012 WL 2341499 at *1.3 Petitioner’s motion to seal

his medical records (ECF No. 15) will be granted as Petitioner’s motion is unopposed,thismatter

contains numerous sensitive medical records,Petitioner has a strong interest in the confidentiality

of those records, and given the general access restrictions applicable to all immigration habeas

matters.

3As Petitioner has failed to meet his burden with respect to the likelihood of success on the merits,

the Court need not address the remaining factors. See Reilly v. City of Harrisburg, 858 F.3d 173,

179 (3d Cir. 2017); Tate v. Schember, 809 F. App’x 64, 65–66 (3d Cir. 2020) (“[W]e will affirm

because we agree that [plaintiff] has not shown a likelihood of success on the merits for the reasons

that the District Court thoroughly explained.”); 431 E. Palisade Ave. Real Estate, LLC v. City of

Englewood, 977 F.3d 277, 279 (3d Cir. 2020) (reversing grant of preliminary injunction because

plaintiff “has not shown a likelihood of success on the merits”); In re Arthur Treacher’s

Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982) (“Thus, a failure by the moving party to

satisfy these prerequisites: that is, a failure to show a likelihood of success or a failure to

demonstrate irreparable injury, must necessarily result in the denial of a preliminary injunction.”);

see also Emerson O. C.-S. v. Anderson, No. 20-3774, 2020 WL 1933992, at *7 (D.N.J. Apr. 22,

2020) (declining to address remaining preliminary injunction factors after determining that movant

had not demonstrated a likelihood of success on the merits of his claim).

il. CONCLUSION

For the reasons expressed above, Petitioner’s motion seeking a temporary restraining order

(ECF No. 5) is DENIED WITHOUT PREJUDICE, and his motion to seal his medical records

(ECF No. 15) is GRANTED. An appropriate order accompanies this Opinion.

DATE: January 6, 2021

CLAIRE C. CECCHI, U.S.D.J.

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