Camacho Lopez

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALDO JOVANI CAMACHO LOPEZ, : CIVIL ACTION NO. 3:20-CV-563

:

Petitioner : (Chief Judge Conner)

:

v. :

:

CRAIG A. LOWE, Warden of Pike :

County Correctional Facility, et al., :

:

Respondents :

MEMORANDUM

Petitioner Aldo Jovani Camacho Lopez (“Camacho Lopez”) is a civil

detainee in the custody of the United States Department of Homeland Security,

Immigration and Customs Enforcement (“ICE”), who brings this habeas action

pursuant to 28 U.S.C. § 2241 seeking emergency relief in the form of a temporary

restraining order. (See generally Docs. 1, 2). He is presently confined at the Pike

County Correctional Facility (“PCCF”). Most unfortunately, Camacho Lopez has

contracted the COVID-19 virus,1 and he seeks immediate release based upon

allegations of inadequate medical care.

1 The virus that causes COVID-19 is the “severe acute respiratory syndrome

coronavirus 2,” also known as “SARS-CoV-2” and the “COVID-19 virus.” WORLD

HEALTH ORGANIZATION, NAMING THE CORONAVIRUS DISEASE (COVID-19) AND THE

VIRUS THAT CAUSES IT, https://www.who.int/emergencies/diseases/novel-coronavirus-

2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-

virus-that-causes-it. We refer to the virus herein as “the COVID-19 virus” and

to the disease it causes as “COVID-19.”

Over the weekend, we tasked the parties to address, on an expedited basis,

the threshold question of this court’s jurisdiction as well as the extent of Camacho

Lopez’s symptoms and the nature of his medical treatment.2 At the conclusion of

a telephonic hearing conducted Monday, April 6, 2020, at 2:00 p.m., we denied

Camacho Lopez’s request for a temporary restraining order and denied his request

for immediate release. This memorandum opinion provides the factual and legal

bases for the court’s decision.

I. Factual Background & Procedural History

Camacho Lopez is 31 years old and a citizen of Mexico. (Doc. 2, Ex. A at 1).

On May 4, 2012, while in the United States illegally, Camacho Lopez was charged

with driving under the influence of alcohol (“DUI”) in Taylor, Pennsylvania. (See

Doc. 5-1 ¶ 11). Five days later, he was charged with removability by United States

Citizenship and Immigration Services based on his presence in the United States

without admission or parole. (Id.) Camacho Lopez served a 30-day sentence on the

DUI charge and was released from custody. (See id.) He was thereafter arrested by

immigration officials in Philadelphia during an enforcement proceeding, taken into

custody, and released on bond. (Id.) After an immigration judge ordered Camacho

Lopez removed and the Board of Immigration Appeals dismissed his appeal,

Camacho Lopez was removed to Mexico on April 18, 2018. (Id. ¶ 12).

2 We commend the diligent efforts of counsel in fully briefing this matter,

including acquiring and submitting pertinent evidence, within 48 hours of receipt

of the court’s scheduling order.

Less than two months later, on June 14, 2018, United States Border Patrol

agents encountered Camacho Lopez in Hidalgo, Texas, and arrested him. (Id. ¶ 13).

Camacho Lopez was again charged with removability, this time as an alien having

been previously removed, and he was removed to Mexico the same day. (Id.)

Camacho Lopez returned to the United States for a third time between June

2018 and December 2019. On December 12, 2019, he was arrested, also in Taylor,

Pennsylvania, for simple assault and harassment. (Id. ¶ 14). He was detained at the

Lackawanna County Prison, and an immigration detainer was lodged against him.

(Id.) On December 16, 2019, Camacho Lopez was transferred to ICE custody and

once more ordered to be removed. (Id.) Camacho Lopez was then indicted in this

court for illegal reentry; he pled guilty and was sentenced to time served. United

States v. Camacho-Lopez, No. 3:20-CR-2, Docs. 1, 19, 21 (M.D. Pa.) (Mannion, J.).

After his federal sentencing, Camacho Lopez was returned to ICE custody and

scheduled for removal. (See Doc. 5-1 ¶¶ 14-15).

On March 28, 2020, Camacho Lopez presented with a fever. (Id. ¶ 13).

Officials promptly invoked procedures designed to identify and treat ICE detainees

with COVID-19 symptoms, placing Camacho Lopez in “cohort” status and

postponing his removal. (Id.) According to Christopher George, Assistant Field

Officer Director (“AFOD George”) in ICE’s Philadelphia Field Office, “cohorting”

is an “infection prevention strategy” that involves housing asymptomatic but

potentially ill detainees together during a virus’s incubation period. (Id. ¶ 9).

Cohorting lasts for the entire duration of the incubation period—14 days in the case

of the COVID-19 virus. (Id.) When an individual in a cohort exhibits symptoms,

they are referred to a medical provider for further evaluation. (Id.) AFOD George

further explains that detainees who test positive will remain isolated for treatment

and, in the event of clinical deterioration, will be transferred to a local hospital. (Id.

¶ 8).

PCCF’s Health Services Administrator summarizes Camacho Lopez’s

symptoms and treatment as follows:

[O]n March 28, 2020, Camacho Lopez was identified

as febrile with a temperature of 100.8 during daily

temperature assessments conducted on the entire prison

population. He was presenting with no symptoms and was

not assessed in response to a medical request submission.

Following the temperature assessment, the on call medical

provider was contacted who instructed to provide Camacho

Lopez with a mask and gloves. On March 28, 2020,

Camacho Lopez and his cellmate were issued a surgical

mask and gloves. Additionally, Camacho Lopez and his

cellmate were moved into a quarantine dorm where they

are assessed by medical staff no less than three times a day.

During a routine follow-up assessment on March 31, 2020,

Camacho Lopez reported generalized body aches and

shortness of breath when lying down at night. During the

assessment he presented a body temperature of 102.4. The

medical provider was contacted and ordered a rapid flu test

and COVID-19 testing if required as well as instructions to

administer Tylenol 650 twice daily only if his temperature

reaches 103 or greater. The rapid flu test was negative, so

the COVID-19 test was administered. On April 2, 2020, the

COVID-19 test results were positive. He is currently

prescribed a multivitamin daily and Gatorade three times

a day. Camacho Lopez is scheduled to see the medical

provider for follow up on Tuesday, April 7, 2020, however

status reports are being relayed by medical personnel on a

routine basis.

(See id.) Medical records from PCCF confirm the Health Services Administrator’s

description of Camacho Lopez’s symptoms and his course of treatment. (See Hr’g

Ex. A).

Camacho Lopez provided his own account of his symptoms in a declaration

dated April 3, 2020, stating: “At present my lungs hurt, I have trouble breathing, I

have chest pain, my throat feels swollen, my muscle and bones are achy, and I have

very little energy. I [am] having a lot of trouble breathing, it is taking me a lot of

effort to breathe.” (Doc. 2, Ex. A ¶ 6). He also claimed to have been seen by a nurse

only once per day. (Id. ¶ 7). Based on medical records supplied by respondents, it

appears this latter assertion concerning once-daily visits pertains to the treatment

period predating Camacho Lopez’s positive test result. (Compare Hr’g Ex. at 38-44

(pre-result treatment records dated March 29, 2020, through April 2, 2020), with id.

at 44-50 (post-result treatment records dated April 2, 2020, through April 5, 2020)).

Late in the afternoon of Friday, April 3, 2020, Camacho Lopez filed a

counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. We set

an expedited briefing schedule and slated the matter for an emergency hearing,

which we held on Monday, April 6, 2020.

Counsel updated the court on Camacho Lopez’s medical status as follows.

On April 4, 2020, at 9:00 a.m., medical staff reported to AFOD George that Camacho

Lopez “remain[ed] in an isolation dorm,” that he was “presenting no outward

symptoms or signs of distress,” and that his fever was being monitored closely by

medical staff and treated as needed with Tylenol 650. (Doc. 5-1 ¶ 17). This status

update also reported that, as of that date, four ICE detainees at PCCF (including

Camacho Lopez and his cellmate) and five correctional officers had tested positive

for the COVID-19 virus. (Id. ¶ 18(a)).

Things changed on the evening of April 5, 2020, when Camacho Lopez

complained to PCCF medical staff of shortness of breath, difficulty breathing, and

generally feeling “as though he cannot get enough air.” (Hr’g Ex. A at 55). Staff

consulted with the on-call medical provider, who directed that Camacho Lopez be

taken immediately to the hospital. (Id.) An emergency department report from

Wayne Memorial Hospital reflects that Camacho Lopez was seen at 6:17 p.m. (Id.)

The report documents a fever of 102 degrees and complaints of increasing shortness

of breath. (Id.) The treating physician noted that Camacho Lopez’s oxygen level

was at 93% on room air and 100% on an oxygen supply and that he did not appear

to be in acute respiratory distress. (Id. at 71). A second emergency department

report prepared at 10:15 p.m. indicates that Camacho Lopez denied chest pain, that

his vital signs were stable, that he was on two liters-per-minute of oxygen via nasal

canula, and that a chest x-ray revealed “concern for pneumonia—viral in context.”

(Id. at 73).

Camacho Lopez was admitted for observation “given concern for potential

escalation of symptoms, especially around day 7-8 from symptom onset.” (Id.) As

of yesterday morning, his condition was stable: a nurse at Wayne Memorial Hospital

reported to PCCF medical staff that Camacho Lopez was receiving IV medication,

that his temperature was 98.7 degrees, and that the “latest respiratory assessment

revealed diminished lung sounds bilaterally in the bases, no [shortness of breath],

no cough, and [oxygen levels of] 98% on room air.” (Id. at 55).

II. Legal Standard

Motions for temporary and preliminary injunctive relief are governed

by a four-factor test.3 The movant must, as a threshold matter, establish the two

“most critical” factors: likelihood of success on the merits and irreparable harm.

Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). Under the first factor,

the movant must show that “it can win on the merits.” Id. This showing must be

“significantly better than negligible but not necessarily more likely than not.” Id.

The second factor carries a slightly enhanced burden: the movant must establish

that it is “more likely than not” to suffer irreparable harm absent the requested

relief. Id. Only if these “gateway factors” are satisfied may the court consider

the third and fourth factors, which aim to balance the equities by examining the

potential for harm to others if relief is granted and whether the public interest

favors injunctive relief. Id. at 176, 179. The court must then balance all four factors

to determine, in its discretion, whether the circumstances warrant injunctive relief.

Id. at 179.

3 Temporary restraining orders and preliminary injunctions are governed

by “nearly identical factors,” the principal distinctions being in procedure and

effect. Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 236 n.4 (3d Cir.

2011). Unlike a preliminary injunction, a temporary restraining order can issue

without notice to the adverse party and will dissolve on its own, unless extended

by the court or with consent of the adverse party under Federal Rule of Civil

Procedure 65(b)(2). Id.

III. Discussion

Camacho Lopez’s claim, as initially styled, was that PCCF staff were

either unable or unwilling to treat his COVID-19 symptoms and that his continued

confinement in that facility thus violated the Fifth and Eighth Amendments to the

United States Constitution. (See Doc. 1 ¶¶ 32-36; Doc. 2 at 6). He contended that

this ongoing constitutional deprivation was so significant and presented such a

substantial threat to his health and safety as to mandate immediate release from

custody under 28 U.S.C. § 2241. (Doc. 2 at 5-7). Given his recent hospitalization,

Camacho Lopez’s claim has now shifted: he posits that PCCF is unable to provide

conditions of confinement suitable for post-hospitalization convalescence.

Respondents asseverate that a conditions-of-confinement claim is not

cognizable in habeas corpus and that, even if it is, Camacho Lopez cannot show a

likelihood of success on that claim. (Doc. 5 at 12-21). Respondents also dispute

Camacho Lopez’s allegation that PCCF failed to appropriately treat his COVID-19

symptoms in the first instance and that it is unequipped to treat him during his

recovery. (See id. at 22-23). We begin with respondents’ threshold claim as to the

scope of habeas corpus relief.

A. Scope of Habeas Corpus Relief

Respondents question our ability to grant the relief requested by Camacho

Lopez pursuant to Section 2241. They contend that Camacho Lopez’s conditions-

of-confinement claim does not sound in habeas corpus but is instead a civil rights

claim which must—and in their view, can only—be remedied in a civil action under

42 U.S.C. § 1983. (Doc. 5 at 12-13).

Both Section 1983 and Section 2241 permit prisoners to contest allegedly

unconstitutional conduct by state officials, but the statutes differ in “purpose and

effect.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002). The remedy of habeas

corpus “is clearly quite limited.” Id. As the Third Circuit Court of Appeals has

explained: the “core” purpose of habeas “has traditionally been to ‘inquire into the

legality of detention, and the only judicial relief authorized was the discharge of the

prisoner or his admission to bail, and that only if his detention were found to be

unlawful.’” Id. (citation and internal quotation marks omitted). Thus, habeas

has been found to be the proper vehicle for challenges to “the fact or length of

confinement,” Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993) (quoting Preiser

v. Rodriguez, 411 U.S. 475, 494 (1973)), or the “execution” of that confinement, see

Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241-42 (3d Cir. 2005) (quoting

Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001)) (citing United States v. Eakman,

378 F.3d 294, 297 (3d Cir. 2004)). The question we must ask is whether the remedy

sought “is, in actuality, a habeas remedy.” Leamer, 288 F.3d at 540-41. When a

petitioner seeks immediate release from custody, the “sole federal remedy” lies in

habeas corpus. See Preiser, 411 U.S. at 500.

Camacho Lopez does not ask the court to order PCCF to provide different

medical treatment, to adopt better prophylactic measures, or to otherwise alter its

procedures. Nor does he, as respondents imply, (see Doc. 5 at 13), seek to impose

liability on the government, to recover money damages, or to obtain any other form

of legal or equitable relief. Camacho Lopez seeks immediate release from custody

based on what he perceives to be constitutionally deficient conditions of

confinement that threaten his health and life. This is unequivocally a habeas

remedy. See Preiser, 411 U.S. at 500; Leamer, 288 F.3d at 540-41.

Respondents argue that, while the relief requested may sound in habeas,

the claim itself does not. (See Doc. 5 at 12-13). According to respondents, a due

process challenge to conditions of confinement can never lie in habeas. (See id.)

This argument presents a more difficult question which the Supreme Court of the

United States has yet to answer. See, e.g., Boumediene v. Bush, 553 U.S. 723, 792

(2008) (declining to “discuss the reach of the writ with respect to claims of unlawful

conditions of treatment or confinement”); Bell v. Wolfish, 441 U.S. 520, 526 n.6

(1979) (deferring “to another day the question of the propriety of using a writ of

habeas corpus to obtain review of the conditions of confinement, as distinct from

the fact or length of the confinement”); Preiser, 411 U.S. at 500 (stating “we need

not in this case explore the appropriate limits of habeas corpus as an alternative

remedy to a proper action under § 1983”). The Court’s decisions tell us that Section

1983 “must yield” to the federal habeas statute for claims falling within the “core of

habeas”—in essence, that Section 1983 is not available for what is fundamentally a

habeas claim. Nelson v. Campbell, 541 U.S. 637, 643 (2004) (citing Preiser, 411 U.S.

at 489). They do not answer the converse inquiry: whether the habeas remedy is

available for what is fundamentally a civil rights claim.

Precedential authority from our court of appeals is also limited. The

court has stated, without elaboration, that “a habeas attack on the conditions of

confinement” will be cognizable “only in extreme cases.” Ali v. Gibson, 572 F.2d

971, 975 n.8 (3d Cir. 1978), superseded by statute on other grounds as stated in

Callwood v. Enos, 230 F.3d 627, 633 (3d Cir. 2000). Later, in Woodall v. Federal

Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005), the court allowed a challenge to the

Federal Bureau of Prisons’ criteria for making community corrections center

placements to proceed under the habeas statute. The court held that the claim

concerned “execution” of the petitioner’s sentence, and it quoted with approval

decisions from several other circuits that defined the term “execution” broadly, to

include such matters as administration of parole, sentence computation, prison

disciplinary proceedings, prison transfers, and even “conditions” generally. See

Woodall, 432 F.3d at 241-44 (collecting cases).

Beyond the Third Circuit, a split has developed as to whether habeas

corpus provides a remedy for a conditions-of-confinement claim that does not

implicate the fact, duration, or execution of the petitioner’s confinement. Several

circuits have held that these claims may be raised in a habeas petition. See Aamer

v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014); Thompson v. Choinski, 525 F.3d 205,

209 (2d Cir. 2008). Others have rejected them. See Nettles v. Grounds, 830 F.3d

922, 927 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 645 (2017) (mem.); Spencer

v. Haynes, 774 F.3d 467, 469-70 (8th Cir. 2014); Robinson v. Sherrod, 631 F.3d 839,

840-41 (7th Cir. 2011). This divide has been borne out in recent weeks, as courts

across the country confront numerous habeas petitions citing the threat posed by

the COVID-19 viral pandemic as a basis for immediate release. Compare Basank

v. Decker, No. 20 Civ. 2518, ___ F. Supp. 3d ___, 2020 WL 1481503, at *4 (S.D.N.Y.

Mar. 26, 2020) (habeas claim cognizable), with Sacal-Micha v. Longoria, No. 1:20-

CV-37, ___ F. Supp. 3d ___, 2020 WL 1518861, at *4 (S.D. Tex. Mar. 27, 2020) (same

claim not cognizable).

Having reviewed the relevant case law, we conclude that certain

extraordinary conditions of confinement may warrant a habeas remedy. At the

outset, we note that neither case invoked by respondents—the Supreme Court’s

decision in Preiser and the Third Circuit’s decision in Leamer—precludes habeas

corpus as a means of challenging conditions of confinement. (See Doc. 5 at 12-13).

As explained supra, these cases foreclose Section 1983 as a method of vindicating

constitutional claims that sound in the “core of habeas.” See Preiser, 411 U.S. at

500; Leamer, 288 F.3d at 540-41. Neither decision limits the scope of habeas itself.

See Woodall, 432 F.3d at 242 n.5 (rejecting, in dicta, identical argument as to scope

of Preiser and Leamer). Quite the contrary, the Supreme Court in Preiser hinted

that “it is arguable that habeas relief will lie” for challenges to prison conditions.

See Preiser, 411 U.S. at 499.

It is not clear, however, that either the Supreme Court or the Court of

Appeals for the Third Circuit would go so far as to announce that any conditions-of-

confinement claim warrants habeas relief. While support for that proposition exists

beyond this circuit, see Aamer, 742 F.3d at 1038; Thompson, 525 F.3d at 209, and

could in theory be extrapolated from dicta in some binding precedent, see Preiser,

411 U.S. at 499; Woodall, 432 F.3d at 242 n.5, there is no need for such a sweeping

conclusion today. Our court of appeals has signaled that an “extreme” conditions-

of-confinement claim can support habeas relief. Ali, 572 F.2d at 975 n.8. And it

has said that claims which go to the very “execution” or “carrying out” of a period

of confinement, even if they do not oppugn the validity of that confinement, are

properly brought in habeas. See Woodall, 432 F.3d at 236. We read these decisions

to authorize a very limited subset of non-“core” conditions-of-confinement habeas

claims.

Camacho Lopez’s habeas petition falls within this limited subset. The

extraordinary conditions of confinement alleged here—where the petitioner has

tested positive for and been hospitalized by a potentially deadly pandemic virus

and claims that officials cannot properly treat him—constitute the extreme case in

which habeas relief might be available. Such conditions, if they are proven to be as

Camacho Lopez alleges, would mark a fundamental shift in the nature of Camacho

Lopez’s confinement. We conclude that, under the unique circumstances of this

case, both the claim brought and the remedy sought are cognizable in habeas

corpus.

B. Request for Temporary Restraining Order

That Camacho Lopez’s claim is cognizable in habeas does not equate to

automatic release. The parties are at direct odds as to whether Camacho Lopez

is likely to succeed on the merits of his conditions-of-confinement claim, whether

Camacho Lopez is in fact likely to suffer irreparable harm, and whether the equities

support the requested relief. We address each of these elements in turn.

1. Likelihood of Success on the Merits

Camacho Lopez’s constitutional claims can be sorted into two categories:

a challenge to nonmedical conditions of confinement at PCCF under the Fifth

Amendment, and a challenge to medical treatment (or alleged lack thereof) by

PCCF staff under the Eighth Amendment. (Doc. 1 ¶¶ 38-41; Doc. 2 at 5-6).

As to the Fifth Amendment claim, the law in the Third Circuit is clear

that a civil immigration detainee is entitled to the “same due process protections”

as a pretrial detainee. E.D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019). An

immigration detainee can bring a claim for violation of those protections when

the conditions of confinement fall below constitutional minimums. Id. To obtain

injunctive relief on this claim, Camacho Lopez must demonstrate that the

conditions of confinement at PCCF amount to “punishment” lacking any

reasonable relationship to “a legitimate governmental objective.” Bell, 411 U.S.

at 535, 539.

Camacho Lopez takes issue with PCCF’s alleged inability to comply with

federal guidance for preventing the spread of the COVID-19 virus within the facility,

positing that its failure to do so constitutes impermissible punishment. (See Doc. 1

¶¶ 39-40). It may be that PCCF is struggling to quickly implement federal hygiene

directives and other public-health recommendations in the institutional setting.4

But we need not address the merits of this particular claim at this juncture. While

relevant to a claim for habeas relief by vulnerable detainees who are not yet ill, see

Thakker, No. 1:20-CV-480, Doc. 47 at 20-22, or to a later civil action for damages by

Camacho Lopez, it is our view that claimed deficiencies in disease prevention efforts

4 (Cf. Doc. 5-1 ¶¶ 7-9, 15-19 (outlining ICE’s and PCCF’s efforts to comply with

guidance from the Centers for Disease Control and Prevention).

cannot serve as a basis, in habeas, to release a detainee who has already contracted

the disease. The distinction is an important one, and Camacho Lopez’s COVID-19

affliction distinguishes the instant matter from Thakker v. Doll, No. 1:20-CV-480,

Doc. 47 (M.D. Pa. Mar. 31, 2020) (Jones, J.), in which this court granted the

immediate release of a group of medically vulnerable detainees in ICE custody

in hopes of mitigating their risk of contracting the disease. 5

Our analysis is thus winnowed to Camacho Lopez’s Eighth Amendment

claim of inadequate medical treatment. (See Doc. 1 ¶¶ 35-36). In this respect, the

standard of review is well settled: constitutionally deficient medical treatment is

actionable if Camacho Lopez can show (1) that he has a serious medical need and

(2) that acts or omissions of detaining officials “indicate deliberate indifference to

that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003)

(citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); Rouse v. Plantier, 182 F.3d 192,

197 (3d Cir. 1999)). In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court

5 We pause briefly to emphasize what we believe to be obvious—that this

matter is distinguishable from our colleague’s decision in Thakker one week ago.

The petitioners in Thakker were also ICE detainees, but their respective medical

conditions placed them at risk of experiencing serious complications if they

contracted the COVID-19 virus. See Thakker, No. 1:20-CV-480, Doc. 47 at 2-3.

Judge Jones granted habeas relief, directing petitioners immediate release based

upon: (1) their heightened vulnerability to the virus, and (2) the conditions of

confinement in several ICE detention facilities, including PCCF. See id. at 19-22.

But see United States v. Raia, ___ F.3d ___, 2020 WL 1647922 at *2 (3d Cir. 2020)

(finding that mere threat of COVID-19 in federal institutions is insufficient

justification for convicted inmate’s compassionate release claim under the First

Step Act). As we have observed passim, Camacho Lopez’s claim is fundamentally

different: he seeks release based not on an increased risk of contracting the virus,

but PCCF’s alleged inability to treat him now that he has contracted it. In sum, this

case is about treatment, not prevention.

defined deliberate indifference, in the prisoner context, as existing only if “the

official knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.”

Farmer, 511 U.S. at 837. The standard is lower for detainees, who must show that

the detaining official knew or should have known of, and consciously disregarded,

the claimed risk. See Woloszyn v. County of Lawrence, 396 F.3d 314, 320-21 (3d Cir.

2005) (citations omitted). Thus, to establish a likelihood of success on his Eighth

Amendment claim, Camacho Lopez must show that he has a serious medical need;

that respondents know, or should know, of that need; and that they are consciously

disregarding it.

There can be no dispute that Camacho Lopez’s COVID-19 diagnosis and

attendant symptoms are serious. The disease has proven itself to be deadly, and its

trajectory is unpredictable, as reflected by the swift vacillation in Camacho Lopez’s

symptoms: his medical record reveals reports of shortness of breath and chest pain

on March 31, followed by a period of days with no significant complaints, a report

on April 4 of a cough and “that’s it,” and then difficulty breathing that led to

inpatient hospitalization just 24 hours later. (See Hr’g Ex. A at 55). We have little

difficulty finding that Camacho Lopez has a “serious medical need.” See Natale,

318 F.3d at 582 (citations omitted).

The only question before us is whether or not respondents were deliberately

indifferent to that need. We think not. As to the propriety of medical treatment

prior to hospitalization, medical records establish that Camacho Lopez was being

regularly monitored and appropriately treated. (See Doc. 5-1 ¶¶ 16-17). He was

placed in cohort status immediately upon registering a fever, placed in a medical

isolation dorm as soon as he tested positive for the COVID-19 virus, and closely

monitored thereafter. (See id. ¶ 16; see also Hr’g Ex. at 43-50). His treatment

included at least three vital-sign assessments by medical staff daily (in addition to

twice-daily, institution-wide temperature checks); medication as needed to control

his fever; and a prescription for a multivitamin and Gatorade for nourishment and

hydration. (Doc. 5-1 ¶ 16; see Hr’g Ex. at 28, 34-35, 44-50). What is more, medical

staff took immediate action upon Camacho Lopez’s first post-diagnosis report of

severe symptoms, having him transported to a local emergency room on Sunday

evening. (See Hr’g Ex. A at 29-30, 53, 55). We cannot conclude that these facts rise

to the level of deliberate indifference.

During oral argument, Camacho Lopez’s counsel acknowledged that his

client’s hospitalization largely moots his claim that release is necessary to secure

appropriate medical treatment. He conceded that his client is now receiving exactly

the medical care that his petition and instant motion request. However, he posited

that Camacho Lopez’s hospitalization does not necessarily moot his entire petition.

With the court’s leave, counsel recast his claim as a challenge concerning post-

hospitalization medical care. Counsel asserted that it would be in his client’s “best

interests” to recuperate outside of an institutional setting and that he has concerns,

based on Camacho Lopez’s deterioration while in detention, that PCCF will be

unable to properly care for Camacho Lopez while he convalesces.

Camacho Lopez’s claim in this regard is entirely speculative. Preliminarily,

the exacerbation of symptoms does not, in and of itself, suggest that medical care

has been deficient. Record evidence supplied by Camacho Lopez establishes that

the potential for rapid deterioration exists even in clinical settings. (See Doc. 2, Ex.

E, CENTERS FOR DISEASE CONTROL AND PREVENTION, INTERIM CLINICAL GUIDANCE

FOR MANAGEMENT OF PATIENTS WITH CONFIRMED CORONAVIRUS DISEASE (COVID-

19), at 2 (revised Mar. 30, 2020)). More importantly, Camacho Lopez has not shown

that PCCF would be unequipped to care for him upon his return to custody. During

oral argument, Camacho Lopez’s counsel could not articulate what recuperative

care would be lacking at PCCF and conceded he is unsure “what the proper

methods of recovery are.” In response to the court’s questions as to PCCF’s

preparedness to receive Camacho Lopez back into custody, respondents’ counsel

represented on the record that PCCF medical staff will comply fully with Camacho

Lopez’s hospital discharge instructions, including any isolation directives. We have

no reason to doubt that assurance.

We are not unsympathetic to Camacho Lopez’s difficult circumstances, and

we hope that his recovery is swift. Our review, however, is limited to the narrow

legal question before us. And on this record, we find that Camacho Lopez has

shown nothing resembling deliberate indifference by PCCF staff.

2. Irreparable Harm

Camacho Lopez must also show that he is “more likely than not” to suffer

irreparable harm if a temporary restraining order is not granted. Reilly, 858 F.3d

at 179. Irreparable harm is injury of such an irreversible character that prospective

judgment would be inadequate to make the movant whole. See Anderson v. Davila,

125 F.3d 148, 163 (3d Cir. 1997); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882

F.2d 797, 801 (3d Cir. 1989). Mere risk of injury is not enough. Rather, the moving

party must establish that the claimed harm is imminent and probable. Anderson,

125 F.3d at 164. The requirements of irreparable harm and likelihood of success on

the merits are correlative: that is, the weaker the merits showing, the more will be

required on the showing of irreparable harm, and vice versa. See Reilly, 858 F.3d at

179 (quoting Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co.,

582 F.3d 721, 725 (7th Cir. 2009) (Easterbrook, J.)).

To establish irreparable harm, Camacho Lopez points again to his

COVID-19 diagnosis, his personal symptoms, and the general—indisputable—fact

that, for some, the disease has proven to be deadly. (See Doc. 2 at 5-6). Camacho

Lopez initially focused this argument on the perceived risks of failing to release him

to “seek proper treatment.” (Id.) That argument has been mooted by our finding

that Camacho Lopez received treatment responsive to his initial symptoms and the

fact that he is now receiving the exact treatment sought. Ostensibly, the same

residual concern underlying counsel’s merits argument—that PCCF might be

unable to provide adequate convalescent care—now forms the basis of Camacho

Lopez’s modified claim of irreparable harm. This argument, too, lacks merit.

Camacho Lopez received appropriate medical treatment during his initial

period of confinement, and there is no indication that this careful monitoring and

treatment will cease when Camacho Lopez is returned to that facility. We are

assured that PCCF medical staff will adhere to any hospital discharge instructions

and continue to monitor Camacho Lopez closely. And Camacho Lopez’s counsel

has supplied no evidence to support his intimation that his client’s prognosis may

be better if he were freed to recuperate privately. Because Camacho Lopez has

received proper medical treatment and PCCF is prepared to continue treating him,

Camacho Lopez has not shown that he is “more likely than not” to suffer imminent

and irreparable harm if he is returned to detention. See Reilly, 858 F.3d at 179.

3. Balancing of Equities

Because the “gateway factors” of likelihood of success on the merits and

irreparable harm have not been satisfied, we need not tarry long on the final two

factors: the possibility of harm to the nonmovant and the public interest. Id. at 176,

179. We nonetheless note that Camacho Lopez is a twice-removed person whose

third removal, initially set for March 30 of this year, was delayed solely because of

his COVID-19 diagnosis. (Doc. 5-1 ¶ 16). Both the respondents and the public have

an interest in enforcement of these removal orders, see Nken v. Holder, 556 U.S.

418, 436 (2009), and Camacho Lopez’s continued detention furthers that interest.

We must also note that, while he is legally detained, Camacho Lopez is isolated

from society at large, restricted from spreading this highly contagious virus within

the community, and receiving appropriate medical care. The governmental and

public interests thus align to support denial of a temporary restraining order.

IV. Conclusion

For these reasons, Camacho Lopez’s motion (Doc. 2) for temporary

restraining order is denied. Based on counsel’s request during oral argument, we

will also dismiss Camacho Lopez’s petition (Doc. 1) for writ of habeas corpus and

mark this case closed. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: April 7, 2020