Engelund v. Doll

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENS-PETER ENGELUND, et al., No. 4:20-CV-00604

Petitioners, (Judge Brann)

v.

WARDEN CLAIR DOLL, et al.,

Respondents.

MEMORANDUM OPINION

APRIL 24, 2020

I. BACKGROUND

Jens-Peter Engelund, Pancong Gong, Rolando Galeano-Xitumul, German

Santos, William Marroquin Cordova, Luis Ramos Cruz, Julio Sanchez Moronta,

Bryan Miguel Ramirez-Diaz, Antonio Lopez Ramirez, Ricardo Mendez Gabriel,

Wilder Cordon Salguero, Hever David Gomez, Rigoberto Cruz-Gallegos, Gustavo

Alvarado Ruiz, and Jorge Lemus Rosa (collectively “Petitioners”) have filed this 28

U.S.C. § 2241 petition alleging that their continued civil detention violates their

substantive and procedural due process rights under the Fifth Amendment to the

United States Constitution.1

Petitioners are individuals from around the world who are being held in civil

detention by the United States Department of Homeland Security, Immigration and

Customs Enforcement (“ICE”) at York County Prison (“York County”) and Pike

County Correctional Facility (“Pike County”), pending final disposition of their

immigration cases. Petitioners all suffer from varying chronic medical conditions

that they allege place them at an increased risk of death or serious injury if exposed

to Coronavirus Infectious Disease 2019 (“COVID-19”).

Petitioners have filed a motion for a temporary restraining order (“TRO”),

seeking their immediate release from custody until such a time as they are no longer

at risk of serious injury or death from COVID-19.2 Respondents are Clair Doll,

Warden of York County, and Craig Lowe, Warden of Pike County.3 Under an

expedited and condensed timeline, the parties have submitted well-researched briefs

of exceeding quality, and participated in a telephonic oral argument before the

Court.4 As such, the matter is ripe for disposition and, for the reasons discussed

below, the motion will be denied.

2 Doc. 2. Gao and Salguero have been released from ICE custody, and therefore no longer seek

§ 2241 relief. (Doc. 23 at 4). Moreover, to the extent that Cruz-Gallegos has tested positive

for COVID-19, (Doc. 23 at 15), the Court is no longer “able to grant the requested relief”—

release from custody to avoid exposure to COVID-19—and his claim would therefore be moot.

Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017).

3 Doc. 1 at 9. Although Simona Flores-Lund, Matthew T. Albence, Chad Wolf, and ICE have

been named as Respondents, only the person who has custody over Petitioners is a proper

Respondent. See 28 U.S.C. § 2243; Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). As such,

all Respondents other than Doll and Lowe will be dismissed from this action.

4 The Court pauses briefly to extend its gratitude to the attorneys for their professionalism,

courteous demeanor, and excellent work under conditions and timelines that, for many

attorneys, would result in subpar work. Their efforts are commendable, and, in the Court’s

A. COVID-19

In recent months, COVID-19 has swept across the world and been declared a

global health pandemic by the World Health Organization.5 Because COVID-19 is

caused by a novel form of the coronavirus, humans have no immunity to the virus

and, currently, there is no cure, vaccine, or known anti-viral treatment for COVID-

19.6 The virus is highly contagious, and is spread through “respiratory particles of

moisture and mucous” that are transmitted through the air or which fall on surfaces

that are later touched by an individual.7 The primary method used to combat the

spread of COVID-19, socially distancing, seeks to maintain enough distance

between individuals to break the chain of transmission—generally at least six feet.8

Most individuals infected with COVID-19 develop only mild or moderate

respiratory symptoms and recover with no medical intervention, but in a minority of

cases individuals experience serious illness or death.9 Some populations—most

notably the elderly and those with certain preexisting medical conditions—are more

5 Doc. 1 at 11.

6 Doc. 1-3 at 4, 6-7.

7 Id. at 4-6.

8 Id. at 7.

9 Q&A on Coronavirus (COVID-19): What Are the Symptoms of Coronavirus, World Health

Organization, https://www.who.int/news-room/q-a-detail/q-a-coronaviruses (last accessed

susceptible to developing serious illness than others.10 Underlying medical

conditions that increase an individual’s susceptibility to COVID-19 include: chronic

lung disease, moderate to severe asthma, serious heart conditions, compromised

immune systems, severe obesity, diabetes, or liver disease.11 Of those infected with

COVID-19, approximately 80% develop mild or moderate symptoms and 20%

require hospitalization—with approximately 2-3% of afflicted individuals dying

from the virus.12

The spread of COVID-19 has thus far been rapid and inexorable. As of April

23, 2020, there are 2,658,387 reported cases globally, with 185,434 reported deaths,

while the number of confirmed cases in the United States stands at 843,937.13 By

April 21, 2020, there were more than 44,000 deaths in the United States.14 As of

April 23, 2020, in Pennsylvania there are 37,053 confirmed cases of COVID-19,

with 1,394 COVID-19 related fatalities.15 “There is little doubt that these figures

10 Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk for Severe Illness, Centers for

Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/groups-at-higher-risk.html (last accessed Apr. 23, 2020).

11 Id.

12 Doc. 1-3 at 5.

13 Johns Hopkins University, Coronavirus Resource Center,

https://coronavirus.jhu.edu/map.html (last accessed Apr. 23, 2020)

14 Coronavirus Disease 2019 (COVID-19): Cases of Coronavirus Disease (COVID-19) in the

U.S., Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-

ncov/cases-updates/cases-in-us.html (last accessed Apr. 23, 2020).

15 COVID-1 Data for Pennsylvania, Pennsylvania Department of Health,

https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last accessed Apr.

represent a significant undercount,” as there has been a shortage of testing capability,

and many infected individuals are asymptomatic and are therefore not tested for

COVID-19.16

As of April 23, 2020, nationwide 287 ICE detainees have tested positive for

COVID-19, but none have died.17 In York County, one ICE detainee tested positive

for COVID-19 on April 3, 2020;18 there have been no other reported cases in that

facility since that date.19 In Pike County, by April 23, 2020, thirteen detainees have

tested positive for COVID-19;20 at least two non-ICE prisoners confined at Pike

County have died from COVID-19, and seven prison guards have tested positive.21

B. Petitioners’ Histories

Engelund has been a lawful permanent resident of the United States for ten

years and has four U.S. citizen children, but was detained by ICE and placed in

deportation proceedings as a result of two criminal convictions—one related to a

firearms charge, and one related to violating a protective order.22 He is now detained

16 Doc. 1-3 at 4; see id. at 4-5.

17 Immigration and Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases,

https://www.ice.gov/coronavirus (last accessed Apr. 23, 2020).

18 Doc. 17-1 at 21.

19 Immigration and Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases,

https://www.ice.gov/coronavirus (last accessed Apr. 23, 2020).

20 Id.

21 Doc. 3 at 6, 7.

22 Doc. 1 at 19; Doc. 1-1 at 6. Engelund’s criminal history includes “convictions for

at Pike County.23 Engelund is fifty-two years of age, is overweight, suffers from

diabetes and high blood pressure, and uses a continuous positive airway pressure

machine at night.24 His medical conditions put him at “increased risk” of

complications and death from COVID-19.25

Galeano-Xitumul is thirty-five years old and has been detained at Pike County

since 2020, following his arrest related to a car accident that resulted in charges for

driving under the influence (“DUI”), aggravated assault by DUI, reckless

endangerment of another person, and simple assault.26 Galeano-Xitumul’s throat

was slit during a December 2018 attack, which left him with a permanent scar that

sometimes becomes inflamed, causing difficulty breathing.27 His medical

conditions and his age put him at “high risk” of complications and death from

COVID-19.28

Santos is 45 years old and was detained by ICE in 2017 following state

charges for possession with intent to deliver marijuana and DUI; he has been

detained for 28 months at Pike County.29 Santos has a body mass index of 40 and

Protection from Abuse Order. He was most recently convicted on March 16, 2018 for illegal

possession of a firearm and other weapons-related offenses.” (Doc. 17 at 27).

23 Doc. 1-1 at 3.

24 Doc. 1 at 19.

25 Doc. 1-3 at 9.

26 Id.; Doc. 1-1 at 15-16.

27 Doc. 1 at 21.

28 Doc. 1-3 at 10.

suffers from high blood pressure and epilepsy, all of which “place[s] him at higher

risk of severe illness or death if he contracts COVID-19.”30 Cordova is detained at

York County following his second illegal entry into the country31 and has a history

of breathing problems that are suggestive of undiagnosed asthma.32 This condition

puts him at an “increased risk” of severe illness or death if he contracts COVID-19.33

Cruz is 29 years old and is confined at Pike County pending removal

following his third illegal entry into the country.34 Cruz “has a long history of

smoking, which places him at higher risk of lung disease if he contracts COVID-

19.”35 Moronta is being held at Pike County after being placed in deportation

proceedings following three convictions for possession with the intent to distribute

heroin.36 He suffers from asthma and regularly used an inhaler when he was a

child.37 His asthma puts him at high risk of serious harm or death if he contracts

COVID-19.38

30 Id.

31 Doc. 17 at 29-30.

32 Doc. 1 at 22.

33 Doc. 1-3 at 10.

34 Doc. 1 at 22; Doc. 17 at 30.

35 Doc. 1 at 22.

36 Id. at 23; Doc. 1-1 at 27.

37 Doc. 1 at 23; Doc. 17 at 31.

Ramirez-Diaz is 29 years of age and is confined at Pike County following

numerous arrests, including two for DUI.39 Ramirez Diaz suffers from Bell’s Palsy,

which causes one half of his face to become paralyzed for approximately one week

at a time.40 Outbreaks cause sight issues, pain and discomfort in the facial region,

uncontrollable drooling and difficulty eating and drinking.41 This condition could

make it “harder for him to clear secretions in the event of a lung infection” caused

by COVID-19.42 Ramirez-Diaz has also been experiencing COVID-19 symptoms,

including a dry cough and fever, and shares a cell with two other individuals who

have been experiencing flulike symptoms.43

Lopez-Ramirez has been detained at York County since March 6, 2020, when

he was detained following multiple charges, including for DUI and First Degree

Vehicle Assault.44 Lopez-Ramirez has suffered from two strokes which caused

ongoing paralysis in his left arm.45 Lopez-Ramirez also suffers from headaches,

39 Id. at 24; Doc. 1-1 at 31; Doc. 17 at 31-32.

40 Doc. 1 at 24.

41 Id.

42 Doc. 1-3 at 10-11.

43 Doc. 1 at 25.

44 Id.; Doc. 17 at 32-33.

body aches, and leg pain as a result of a prior automobile accident.46 This puts him

“at risk for” severe illness or death if he contracts COVID-19.47

Gabriel has been confined at Pike County since December 2019, when he was

detained for DUI and assault charges.48 Gabriel suffers from gastritis and is a

chronic smoker who smokes approximately one pack of cigarettes per day.49 Gabriel

experiences near-daily headaches resulting from an earlier automobile accident.50

Gabriel’s medical conditions place him at an increased risk of severe injury or death

if he contracts COVID-19.51

Gomez is being detained at the Pike County pending deportation proceedings

following his illegal entry into the United States.52 Gomez previously had dangerous

blood sugar levels which necessitated a strict diet to control those levels; “Gomez

feels that he can no longer control his diet to the degree necessary to avoid

consuming harmful sugars.”53 This allegedly places Gomez at an elevated risk of

harm or death if he contracts COVID-19.54 Cruz-Gallegos was arrested for DUI and

46 Id. at 25-26.

47 Doc. 1-3 at 11.

48 Doc. 1 at 26; Doc. 17 at 33-34.

49 Doc. 1 at 26.

50 Id.

51 Id.

52 Id.; Doc. 1-1 at 46.

53 Doc. 1 at 27.

is detained at Pike County pending the completion of his removal proceedings for

illegal entry into the United States.55 He suffers from asthma and routinely

experiences shortness of breath, and likely suffers from diabetes. These conditions

place him at high risk of serious illness or death from COVID-19.56 In the days since

this petition was filed, Cruz-Gallegos has tested positive for COVID-19.57

Ruiz is confined York County pending his removal for overstaying his visa;

Ruiz has several previous non-violent criminal convictions.58 Ruiz suffers from

diabetes and high cholesterol, which places him at a higher risk of harm or death if

he contracts COVID-19.59 Finally, Rosa is detained at Pike County following two

DUI arrests.60 Rosa is a chronic smoker, and has been diagnosed with asthma,

chronic sinus infections, and diabetes.61 These conditions place Rosa at a higher risk

of serious illness or death if he contracts COVID-19.62

55 Id. at 28; Doc. 1-1 at 50.

56 Doc. 1 at 28.

57 Doc. 23 at 15.

58 Doc. 1 at 29; Doc. 1-1 at 58; Doc. 17 at 36.

59 Doc. 1 at 29.

60 Id. at 30.

61 Id.

C. Conditions of Confinement

Although the measures that York County and Pike County have put in place

to combat COVID-19 are largely similar, Petitioners’ conditions of confinement

vary depending upon in which facility they are confined.

1. York County

At York County, detainees are confined in dormitory-style rooms that, in

ordinary circumstances, contain fifty detainees, with beds spaced approximately two

feet apart.63 York County has the capacity to house 2,245 individuals and “has

historically often operated near capacity.”64 As of the morning of April 17, 2020,

York County housed 1,238 individuals.65

Since the start of the current pandemic, York County has taken several

measures to mitigate the threat of COVID-19 within the facility. During intake

medical screenings, detainees are assessed for fever and respiratory illness and are

asked whether, in the past fourteen days, they have had close contact with a person

infected with COVID-19 or have traveled through areas with sustained community

transmission.66

63 Doc. 1 at 13.

64 Doc. 17-1 at 4.

65 Id.

Detainees with symptoms of COVID-19 are placed in isolation and tested for

the virus. If any individuals test positive, they remain isolated and are treated; if

necessary, they are transferred to a local hospital for further treatment.67

Asymptomatic individuals are placed in “cohorts”68 with restricted movement for a

period of fourteen days following their last exposure to COVID-19, which is thought

to be the outer end of the virus’ incubation period.69 The detainees are monitored

daily for fever and symptoms of respiratory illness.70

York County also provides inmates with soap, water, and “hard surface

disinfectant.”71 Each detainee is issued a bar of soap for use, which is “immediately”

replaced upon exhaustion.72 Alcohol-based hand sanitizer is available for staff but,

for security purposes, is not provided to detainees.73 “High traffic and contact areas

67 Id.

68 According to the Government, “[c]ohorting is an infection prevention strategy which involves

housing detainees together who were exposed to a person with an infectious organism but are

asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because

individuals with these and other communicable diseases can be contagious before they develop

symptoms and can serve as undetected source patients. Those that show onset of fever and/or

respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued

when the 14-day incubation period completes with no new cases.” (Doc. 17-1 at 5).

69 Id.

70 Id.

71 Id. at 6.

72 Id.

73 Id. The Centers for Disease Control and Prevention (“CDC”) recommends the use of alcohol-

based hand sanitizer only “[i]f soap and water are not readily available.” How to Protect

Yourself and Others, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-

getting-sick/prevention.html (last accessed Apr. 21, 2020).

are cleaned repeatedly throughout the day. The facility administration is

encouraging both staff and the general population to use these tools often and

liberally.”74 Medical staff also “conduct roving temperature checks throughout the

facility to monitor for COVID-19 symptoms.”75

According to the Government, protective masks have been provided to

detainees to help prevent the spread of COVID-19:

All detainees and inmates were issued surgical masks to wear on or

about April 7, 2020. Detainees and inmates must wear their issued

mask anytime they are out of their cell. In all “dormitory” housing

areas, detainees and inmates must wear masks when not sleeping. If

they can wear the mask while sleeping it is preferred, but not

mandatory. The detainee or inmate may remove the mask to eat, take

drinks, and to shower. All inmates and detainees must wear their mask

during recreation. The masks will be laundered once a week. Once the

prison obtains more masks every detainee or inmate will receive two

masks. One mask will be placed in their laundry bag and sent out in

accordance with the housing unit’s normal laundry schedule. All

detainees and inmates are not permitted to wash their own masks.

Detainees and inmates must follow all directions concerning the

donning and doffing of masks. These directions were provided to each

inmate when they received their mask on April 8, 2020. Detainees on

isolation status are required to wear a N-95 mask when they leave a

cohorted housing unit. Additionally, any detainees being transported

to a hospital or outside medical appointment or as directed by . . .

medical staff, are required to wear a surgical mask. Detainees and

inmates were instructed to wash their hands thoroughly before touching

the mask.76

74 Doc. 17-1 at 6.

75 Id. at 22.

Detainees who refuse to wear a mask are removed from their housing unit and placed

in an isolated cell.77

York County has also begun taking steps to protect the prison from outside

exposure. York County now screens all staff and vendors when they enter the

facility, including the use of body temperature checks,78 and requires that all staff or

personnel entering the facility wear an N-95 mask.79 York County limits contact

between detainees and their attorneys by permitting only telephonic contact or non-

contact legal visits in the facility’s visitation room.80

Despite these precautions, detainees remain housed in large rooms with

numerous other detainees.81 They alleged that they sleep and eat in close proximity

and are unable to effectively distance themselves from each other.82 While the

detainees are provided with masks, they must wear the same masks “all day, every

day.”83 In at least one instance, a detainee was allegedly left in a dorm room for five

days after she began exhibiting COVID-19 symptoms, and later tested positive for

COVID-19, although none of the other detainees have been tested for COVID-19.84

77 Id. at 22.

78 Id. at 6.

79 Id. at 21.

80 Id. at 7.

81 Doc. 1 at 20.

82 Id.

83 Id.

2. Pike County

Pike County is laid out in a more traditional fashion: typically three detainees

are housed in each cell, with each cell separated from the rest of the prison by doors

made from metal bars.85 Pike County “has the capacity to house 375 detainees and

has historically often operated near capacity.”86 As of the morning of April 17, 2020,

Pike County housed 152 detainees.87

As with York County, at Pike County detainees are subject to intake medical

screenings where they are assessed for fever and respiratory illness and are asked

whether, in the past fourteen days, they have had close contact with anyone who is

infected with COVID-19 or have traveled through areas with sustained community

transmission.88

Detainees with symptoms of COVID-19 are placed in isolation and tested for

the virus. If individuals test positive, they remain isolated and are treated; if

necessary, they are transferred to a local hospital for treatment.89 Asymptomatic

individuals are placed in cohorts with restricted movement for a period of fourteen

85 Id. at 13.

86 Doc. 17-1 at 4.

87 Id.

88 Id. at 5.

days following their last exposure to COVID-19.90 The detainees are monitored

daily for fever and symptoms of respiratory illness.91

Pike County also provides soap, water, and “hard surface disinfectant” for

every housing unit.92 As in York County, staff is provided alcohol-based hand

sanitizer, while detainees are not, and “[a]ll high traffic and contact areas within each

housing unit are cleaned multiple times throughout the day. The administration is

encouraging both staff and the general population to use these tools often and

liberally.”93 Daily temperature checks and screening for COVID-19 symptoms have

been implemented for all detainees and, if any detainee displays such symptoms,

they and their cell mates are placed in quarantine.94

Pike County has also “instituted a modified lockdown schedule.”95

Movement throughout the facility is restricted; detainees leave their cells in a

staggered fashion to maintain social distancing, and all detainees are required to

practice social distancing with any individuals who are not housed within their cell.96

90 Id.

91 Id.

92 Id. at 6.

93 Id.; see id. at 22.

94 Id. at 22.

95 Id.

Meals are served to detainees in their cells, rather than at a cafeteria.97 Pike County

has issued masks to detainees and its staff:

All detainees, inmates, and staff are now required to wear masks within

the facility. All detainees and inmates have been issued masks within

the last week. ICE has provided the Pike County Prison with an

additional 500 surgical masks and 240 N[-]95 masks for use amongst

staff and detainees . . . Detainees and inmates were issued surgical

masks by the prison during the last week.98

Pike County now screens and performs temperature checks on all staff and

vendors when they enter the facility.99 Pike County permits detainees to speak with

their attorneys telephonically or through non-contact legal visits within the visitation

room at the facility.100

Despite these efforts, Respondents assert that several issues continue to plague

Pike County. There is not enough soap for the detainees to regularly wash their

hands101 and, although Petitioners have been issued masks, they must reuse those

masks for one week.102 Detainees must share several portable electronic devices

(tablets) to contact family and place medical requests, and the detainees are not able

97 Id.

98 Id. at 22-23.

99 Id. at 6.

100 Id. at 7.

101 Doc. 1 at 14, 22, 23.

to sanitize those tablets.103 Finally, although guards are required to wear masks,

Petitioners report that guards sometimes fail to wear the required protective gear.104

II. DISCUSSION

The dispute between the parties centers around two issues. First, the

Government asserts that the relief sought is not appropriate in a § 2241 petition, as

Petitioners seek release from custody, rather than changes to the conditions of

confinement.105 Second, the Government argues that Petitioners have not met the

standard to grant a temporary restraining order because they have not demonstrated:

(1) a likelihood of success on the merits, as the procedures put in place to protect

ICE detainees at the facilities ensure that Petitioners’ confinement remains

constitutional; (2) a risk of irreparable harm; or (3) that the balance of equities tips

in their favor.106 The Court will address these issues in turn.

A. Whether Relief Sought is Appropriate in a § 2241 Petition

First, Respondents contend that Petitioners may not seek release from custody

through their § 2241 petition.107 The Court will quickly address this issue. Although

precedent from the United States Supreme Court and United States Court of Appeals

for the Third Circuit on this issue is limited, the question of whether individuals may

103 Id. at 14, 23-24, 28.

104 Id. at 15.

105 Doc. 17 at 54-56.

106 Id. at 37-54.

seek release from custody through a § 2241 petition has been examined numerous

times in the past weeks by several judges within this District—in every case, they

have concluded that such relief is appropriate.108

I agree that precedent establishes—at a minimum—that “certain extraordinary

conditions of confinement may warrant a habeas remedy,” particularly where those

conditions “would mark a fundamental shift in the nature of [Petitioners’]

confinement.”109 Those conditions are present here and, consequently, Petitioners

may seek release from custody by way of their § 2241 petition.

B. Whether Injunctive Relief is Appropriate

The Government next argues that Petitioners have not met their burden to

obtain a TRO.110 “A preliminary injunction is an extraordinary remedy, which

should be granted only in limited circumstances.”111 As the Supreme Court has

emphasized, “a preliminary injunction is an extraordinary and drastic remedy, one

108 See, e.g., Thakker v. Doll, __ F.Supp.3d __, __, No. 1:20-CV-480, 2020 WL 1671563, at *2

(M.D. Pa. Mar. 31, 2020); Camacho Lopez v. Lowe, No. 3:20-CV-563, 2020 WL 1689874, at

*4-6 (M.D. Pa. Apr. 7, 2020); Verma v. Doll, No. 4:20-CV-14, 2020 WL 1814149, at *3-4

(M.D. Pa. Apr. 9, 2020); Saillant v. Hoover, No. 1:20-CV-00609, 2020 WL 1891854, at *3

(M.D. Pa. Apr. 16, 2020).

109 Camacho Lopez, 2020 WL 1689874, at *5-6. See also Verma, 2020 WL 1814149, at *4;

Saillant, 2020 WL 1891854, at *3.

110 Doc. 17 at 37-54.

111 Greater Phila. Chamber of Commerce v. City of Philadelphia, 949 F.3d 116, 133 (3d Cir.

that should not be granted unless the movant, by a clear showing, carries the burden

of persuasion.”112 To obtain a TRO, a movant must demonstrate:

(1) the likelihood that the plaintiff will prevail on the merits at final

hearing; (2) the extent to which the plaintiff is being irreparably

harmed by the conduct complained of; (3) the extent to which the

defendant will suffer irreparable harm if the preliminary injunction

is issued; and (4) that the public interest weighs in favor of granting

the injunction.113

“Generally, the moving party must establish the first two factors and only if these

‘gateway factors’ are established does the district court consider the remaining two

factors.”114 “The court then determines in its sound discretion if all four factors,

taken together, balance in favor of granting the requested preliminary relief.”115

1. Likelihood of Success on the Merits

Petitioners seek a TRO on two grounds. First, they assert that their conditions

of confinement amount to unconstitutional punishment of civil detainees, in

violation of the Fifth Amendment to the United States Constitution.116 Second,

Petitioners argue that their detainment amounts to cruel and unusual punishment,

also in violation of the Fifth Amendment.117

112 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).

113 Greater Phila. Chamber of Commerce, 949 F.3d at 133 (brackets and footnote omitted).

114 Id.

115 Id. (internal quotation marks omitted).

116 Doc. 3 at 13-15.

117 Id. at 16-17. Because Respondents are civil detainees, their claim proceeds under the Fifth

Amendment, rather than the Eighth Amendment, although the elements of a claim under the

i. Unconstitutional Punishment

With respect to Petitioners’ conditions of confinement claim, they must

demonstrate that their conditions of confinement “amount to punishment of the

detainee.”118 “To determine whether challenged conditions of confinement amount

to punishment, this Court determines whether a condition of confinement is

reasonably related to a legitimate governmental objective; if it is not, [this Court]

may infer that the purpose of the governmental action is [unconstitutional]

punishment.”119 Stated differently, the Court must consider “whether the conditions

and restrictions of the Jail were rationally connected to these valid objectives and

whether the conditions and restrictions were excessive in relation to these

objectives.”120

In assessing whether a governmental interest is legitimate, the Supreme Court

has not “detail[ed] the precise extent of the legitimate governmental interests that

137 S. Ct. 1843, 1877 (2017) (noting that while plaintiff’s “‘deliberate indifference’ claim . . .

[proceeded] under the Fifth Amendment’s Due Process Clause, not the Eighth Amendment's

Cruel and Unusual Punishment Clause . . . that is because the latter applies to convicted

criminals while the former applies to pretrial and immigration detainees” (Breyer, J.,

dissenting)); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 2983, 77

L. Ed. 2d 605 (1983) (stating that “the due process rights of a person [under the Fifth

Amendment] are at least as great as the Eighth Amendment protections available to a convicted

prisoner”). See also Powers-Bunce v. D.C., 541 F. Supp. 2d 57, 66 (D.D.C.) (“The Court looks

to the two-part analysis laid out in Farmer v. Brennan, 511 U.S. 825 (1994), to decide whether

a Fifth Amendment violation was perpetrated by the individual Defendants), reconsidered in

part on other grounds, 576 F. Supp. 2d 67 (D.D.C. 2008).

118 Bell v. Wolfish, 441 U.S. 520, 535 (1979).

119 E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (internal quotation marks omitted).

may justify conditions or restrictions of pretrial detention.”121 However, the

Supreme Court has recognized that ensuring detainees’ presence at hearings, along

with “the effective management of the detention facility once the individual is

confined” constitute legitimate governmental interests.122 The Third Circuit has also

held, in an unpublished opinion, that the Government has a “legitimate . . . interest[]

in reducing the flight risk posed by prisoners facing removal.”123

With regard to the second consideration, the Supreme Court has emphasized

that,

[i]n determining whether conditions or restrictions are reasonably

related to the Government’s interest in maintaining security and order

and operating the institution in a manageable fashion, courts must heed

our warning that such considerations are peculiarly within the province

and professional expertise of corrections officials, and, in the absence

of substantial evidence in the record to indicate that the officials have

exaggerated their response to these considerations, courts should

ordinarily defer to their expert judgment in such matters.124

Viewed under this standard, the Court concludes that Petitioners have failed

to sustain their burden of making a “clear showing” that their conditions of

confinement amount to unconstitutional punishment.125 First, it is beyond cavil that

the Government has at least one, and in some cases two, legitimate governmental

121 Bell, 441 U.S. at 540.

122 Id.

123 Builes v. Warden Moshannon Valley Corr. Ctr., 712 F. App’x 132, 134 (3d Cir. 2017).

124 Bell, 441 U.S. at 540 n.23.

interests in continued detention: to prevent Petitioners from absconding and avoiding

removal, and in protecting the public.126

Second, Petitioners’ continued confinement is reasonably related to those

legitimate governmental interests, as it guarantees both that the safety of the public

is maintained, and that Petitioners will attend their deportation proceedings.

Although there are other methods that may help protect the public and ensure that

Petitioners comply with deportation proceedings, detainment is the only method that

guarantees the fulfillment of the Government’s goals. Moreover, the relevant

question is not whether there are other, less restrictive methods at the Government’s

disposal, or even whether the Government’s chosen course of action is the wisest or

best way to proceed. The only limitation on the Government’s ability to act is that

the chosen course of action be reasonably related to its legitimate goal. Here, that

standard is clearly satisfied.

The current conditions at the facilities do not undermine this conclusion. The

Court recognizes that “[p]risons present unique concerns regarding the spread of this

126 Although not all Petitioners present a risk to the public, some certainly do. Engelund has

previous convictions for unlawful possession of firearms, violating protection from abuse

orders, and battery, (Doc. 17-1 at 7-8), while Mendez-Gabriel has been convicted of domestic

violence and assault. (Id. at 13-14). Additionally, several Petitioners (Galeano-Xitumul,

Santos, Ramirez-Diaz, Mendez-Gabriel, Gomez-Vasquez, Gallegos, Lemus-Rosa, Lopez-

Ramirez, and Alvarado-Ruiz) have been charged with, or convicted of, DUIs. (Id. at 9-10, 12-

17, 19-20). These offenses, although not violent in nature, present a serious risk to the public.

See United States v. Surine, __ F.Supp.3d __, __, No. 4:07-CR-00304-1, 2019 WL 6699914,

at *4 (M.D. Pa. Dec. 9, 2019) (noting that driving under the influence is a “highly dangerous

virus; by their very nature, prisons are confined spaces unsuited for ‘social

distancing.’”127 Nevertheless, CDC guidelines specifically contemplate that

individuals will be confined within prisons during the duration of this pandemic.128

More importantly, conditions no longer resemble the “unsanitary, tightly-packed

environments” that led other judges in this District to order the release of ICE

detainees.129 To the contrary, the record reflects that the facilities have taken

proactive measures to prevent or limit the spread of COVID-19 and to ensure the

health of its detainees.130

First, although the facilities do not permit the type of social distancing that

individuals may undertake in their homes,131 the facilities have removed many

detainees and are now operating far below their historical capacities: as of April 17,

127 Verma, 2020 WL 1814149, at *4.

128 See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

Correctional and Detention Facilities, Centers for Disease Control and Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-

correctional-detention.html (last accessed Apr. 22, 2020).

129 Thakker, 2020 WL 1671563, at *8.

130 The current conditions of confinement at York County and Pike County are gleaned from the

declaration provided by Christopher George, ICE’s assistant field office director, who oversees

ICE immigration enforcement operations in Pennsylvania. (Doc. 17-1). Petitioners object to

George’s declaration on the ground that it is not based on “first-hand knowledge” but, rather,

is based upon information obtained from records and statements by George’s subordinates.

(Doc. 23 at 9-10). However, “[i]t is well established that ‘a preliminary injunction is

customarily [resolved] on the basis of procedures that are less formal and evidence that is less

complete than in a trial on the merits’” and, thus, in considering motions for emergency relief,

district courts may rely upon “affidavits and other hearsay materials” that are not admissible

at trial. Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 718-19 (3d Cir. 2004) (quoting

University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). The Court will therefore rely

upon George’s declaration in deciding this motion.

Pike County was operating at less than forty-one percent capacity, while York

County was operating at approximately fifty-five percent capacity.132 Thus, in Pike

County, two, or sometime even one, individuals are housed in a cell—rather than

three individuals as was previously the case. In York County, there may now only

be 27 or 28 individuals in a room, rather than 50 as before.

Second, both facilities are undertaking significant measures to sanitize the

detainees’ environment, as well as prevent the introduction or spread of COVID-19

within the facilities. Thus, both Pike County and York County have incorporated

into their intake medical screenings tests and questions designed to elicit whether an

incoming detainee has potentially been exposed to COVID-19.133 Detainees with

symptoms of COVID-19 are placed in isolation, tested, and treated; asymptomatic

individuals are cohorted and restricted in their movements, and monitored daily for

symptoms.134

Both facilities provide inmates with soap, water, and “hard surface

disinfectant” that is replaced when exhausted.135 Alcohol-based hand sanitizer is

provided to staff, and “[h]igh traffic and contact areas are cleaned repeatedly

throughout the day.”136 York County has provided all inmates with surgical masks

132 Doc. 17-1 at 4.

133 Id. at 5.

134 Id.

135 Id. at 6, 22.

that they are to wear at nearly all times, while staff and inmates in isolation must

wear N-95 masks.137 At Pike County, detainees are likewise required to wear

surgical masks, while staff members wear N-95 masks.138 Both facilities have taken

steps to prevent COVID-19 from entering the facility from outside: all staff and

vendors are screened when they enter the facilities, including with body temperature

checks,139 and meetings with attorneys are non-contact only.140

Additionally, Pike County has instituted a modified lockdown schedule with

restricted movements,141 and detainees leave their cells in a staggered fashion to

maintain required social distancing.142 Meals are served to detainees within their

cells, rather than at a cafeteria.143

Third, the facilities have implemented medical procedures to ensure that sick

detainees are promptly tested for COVID-19 and, if necessary, quarantined and

treated. At York County medical staff “conduct roving temperature checks

throughout the facility to monitor for COVID-19 symptoms,” while at Pike County

there are daily temperature checks and screenings for COVID-19 symptoms for all

137 Id. at 21-22.

138 Id. at 22-23.

139 Id. at 6.

140 Id. at 7.

141 Id. at 22.

142 Id.

detainees; if any detainee displays such symptoms, they and their cell mates are

placed in quarantine, tested, and treated.144

The sum of these measures ensures that Petitioners’ conditions of confinement

are no longer unconstitutionally overcrowded or unsanitary.145 The record reflects

that detainees at Pike County and York County now receive adequate protection

from COVID-19, and their conditions of confinement do not amount to punishment

in violation of the Constitution. To the extent that some prison guards are failing to

properly comply with these policies and procedures,146 the remedy is to ensure such

compliance, not to release Petitioners from custody.147

ii. Deliberate Indifference148

Turning to Petitioners’ claim for deliberate indifference, the Constitution

“prohibits any punishment which violates civilized standards and concepts of

144 Id.; see Docs. 20, 21, 28 (medical records of Respondents that also demonstrate consistent

temperature checks).

145 The Court recognizes the recent spike in COVID-19 infections at Pike County. However, as

counsel for the Government accurately noted during oral argument, the incubation period for

COVID-19 is thought to be as long as fourteen days and, thus, current infections are not

necessarily indicative of these preventative measures, most of which were implemented during

the past fourteen days.

146 See Doc. 1 at 14-15, 22-24, 28.

147 See Tillery v. Owens, 907 F.2d 418, 429 (3d Cir. 1990) (noting that any “remedy is to be

determined by the nature and scope of the constitutional violation”).

148 It is unclear whether Petitioners pursue a deliberate indifference claim related to the conditions

of confinement at the detention facilities or based on inadequate medical care; Petitioners cite

the conditions of confinement standard in their brief in support of their motion, but cite the

standard for inadequate medical care in their reply brief. (Compare Doc. 3 at 16, with Doc. 23

humanity and decency.”149 “To prevail against prison officials on a claim that an

inmate’s conditions of confinement violated the [Fifth] Amendment, the inmate

must meet two requirements: (1) the deprivation alleged must be, objectively,

‘sufficiently serious,’ and (2) the ‘prison official must have a sufficiently culpable

state of mind.’”150

“The first element is satisfied when an inmate is deprived of ‘the minimal

civilized measure of life’s necessities.’”151 “The second element is satisfied when

an inmate shows that prison officials acted with deliberate indifference to the

inmate’s health or safety or conditions of confinement that violated the inmate’s

constitutional rights.”152 The Third Circuit has “adopted a subjective knowledge

standard to establish deliberate indifference, requiring a showing that prison officials

actually knew of and disregarded constitutional violations.”153

Similarly, with respect to claims arising from an alleged failure to provide

adequate medical care, “prison officials violate the Eighth Amendment’s

proscription of cruel and unusual punishment when they exhibit deliberate

indifference to serious medical needs of prisoners.”154 That “standard requires

149 Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (internal quotation marks omitted).

150 Id. (quoting Farmer, 511 U.S. at 834).

151 Id. (quoting Wilson v. Seiter, 501 U.S. 294, 299 (1991)).

152 Id. (quoting Wilson,501 U.S. at 302-03).

153 Id.

154 Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005) (internal quotation marks

deliberate indifference on the part of prison officials and [that] the prisoner’s medical

needs be serious.”155 As to the serious medical needs requirement, “[t]he detainee’s

condition must be such that a failure to treat can be expected to lead to substantial

and unnecessary suffering, injury, or death.”156

Deliberate indifference is demonstrated where “the custodial officials ‘knew

or should have known’ of [a] strong likelihood” of unnecessary suffering, injury, or

death.157 Thus, “there can be no reckless or deliberate indifference to that risk unless

there is something more culpable on the part of the officials than a negligent failure

to recognize [such] high risk”158 “Therefore, the ‘should have known’ element . . .

connotes something more than a negligent failure to appreciate the risk . . . presented

[to] a particular detainee, though something less than subjective appreciation of that

risk.”159 “[T]he risk of . . . injury must not only be great, but also sufficiently

apparent that a lay custodian’s failure to appreciate it evidences an absence of any

concern for the welfare of his or her charges.”160

In light of the measures that Pike County and York County have taken to

protect detainees housed within their respective facilities, the Court concludes that

155 Id. (brackets, ellipsis, and internal quotation marks omitted).

156 Id.

157 Id.

158 Id.

159 Id.

Petitioners have failed to establish, under either test, that prison officials exhibited

deliberate indifference. Although COVID-19 presents a serious medical issue, as

detailed above, the facilities have taken significant steps to curb the introduction or

spread of COVID-19 and to contain and treat those infected with the virus. These

measures demonstrate that the facilities recognize the significant threat that COVID-

19 poses to the detainees and have taken responsible steps to protect them. Under

such circumstances, it cannot be said that Respondents have been deliberately

indifferent to Petitioners’ health, safety, or medical needs, and they certainly have

not “evidence[d] an absence of any concern for the welfare of [their] charges.”161

As one of my colleagues in this District aptly stated in a recent opinion: “There is

no perfect solution to preventing the spread of COVID-19 in detention facilities, but

York County Prison officials have taken reasonable steps to limit the spread

throughout its facility. [Petitioner therefore] has not established a conscious

disregard for the risk posed by COVID-19.”162

Finally, the Court briefly notes that Petitioners now assert that the lockdown

measures put in place to counter and prevent the spread of COVID-19 violate

Petitioners’ constitutional rights, since the measures “are so restrictive as to amount

161 Id. Again, I note that the record demonstrates that one petitioner, Cruz-Gallegos, has been

infected with COVID-19. (Doc. 23 at 15). However, Cruz-Gallegos has been closely

monitored and appears to have received appropriate treatment following his positive test

results. (See Doc. 21-9; Doc. 28-4). Given this evidence, Respondents have not demonstrated

that the “facts rise to the level of deliberate indifference.” Camacho Lopez, 2020 WL 1689874,

at *7.

to punishment.”163 However, this issue was raised in neither Petitioners’ § 2241

petition, nor in their brief in support of their motion for a TRO.164

This Court generally will not consider issues raised for the first time in a reply

brief because “[a] reply brief is intended only to provide an opportunity to respond

to the arguments raised in the response brief; it is not intended as a forum to raise

new issues.”165 This alone is ground to refuse consideration of this argument. More

importantly, however, “a party moving for a preliminary injunction must necessarily

establish a relationship between the injury claimed in the party’s motion and the

conduct asserted in the complaint.”166 Given the absence of any mention of this

allegedly unlawful conduct in Petitioners’ § 2241 petition, their “request for

injunctive relief is legally deficient” as related to the current lockdown conditions.167

163 Doc. 23 at 16; see id. at 16-18.

164 See Docs. 1, 3.

165 United States v. Martin, 454 F. Supp. 2d 278, 281 n.3 (E.D. Pa. 2006). See also Garza v.

Citigroup Inc., 881 F.3d 277, 285 (3d Cir. 2018) (noting that, as a general matter, issues raised

for the first time in a reply brief are deemed waived).

166 Martin v. Keitel, 205 F. App’x 925, 929 (3d Cir. 2006) (quoting Devose v. Herrington, 42 F.3d

470, 471 (8th Cir. 1994)).

2. Irreparable Harm168

Turning to the second prong of the TRO inquiry, “[t]o establish irreparable

harm, a stay movant must demonstrate an injury that is neither remote nor

speculative, but actual and imminent.”169 “‘The possibility that adequate

compensatory or other corrective relief will be available at a later date, in the

ordinary course of litigation, weighs heavily against a claim of irreparable harm.’”170

Conversely, “[t]he irreparable harm requirement is met if a plaintiff demonstrates a

significant risk that he or she will experience harm that cannot adequately be

compensated after the fact by monetary damages.”171

Petitioners have not demonstrated an imminent—rather than speculative—

possibility that they will suffer irreparable harm from COVID-19 if not released

from custody. First, the protective measures that have been put in place by Pike

County and York County mitigate the risk of COVID-19 infection among most of

168 The Court recognizes that there is some dispute over whether Petitioners suffer from their self-

reported medical conditions. (Compare Docs. 17, 19, with Doc. 29). As Petitioners’ counsel

notes, there may well be issues with some of the records upon which the Government relies to

dispute the existence of medical conditions, (Doc. 29 at 3-5) and, out of an abundance, the

Court assumes for the purposes of this motion that Petitioners do in fact suffer from their

reported ailments.

169 In re Revel AC, Inc., 802 F.3d 558, 571 (3d Cir. 2015) (internal quotation marks omitted).

170 Id. (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)).

the remaining Petitioners, rendering any risk of exposure too speculative to

constitute irreparable harm.172

Second, and somewhat relatedly, Petitioners risk of harm as compared to other

detainees—should they contract COVID-19—is uncertain and speculative.

Although Arno Vosk, M.D., has submitted a declaration attesting that Petitioners are

at an “increased risk” of complications or death from COVID-19, he does not

quantify this increased risk.173 While such an increased risk may be present, the

elevated risk could merely be de minimus. As Dr. Vosk attests, approximately eighty

percent of individuals infected with COVID-19 do not require hospitalization.174 For

many Petitioners, there is no indication from the record that there is a meaningfully

increased risk of complications or harm such that they may be deemed uniquely

susceptible to COVID-19.

Nowhere is this better exemplified than in Dr. Vosk’s statements regarding

Ramirez-Diaz and Lopez-Ramirez. With respect to Ramirez-Diaz, Dr. Vosk states

only that Ramirez-Diaz’s Bell’s Palsy “could make it harder for him to clear

secretions in the event of a lung infection.”175 Nothing in the record demonstrates,

172 There are notable exceptions, for example, Galeano-Xitumul may have been housed with a

cellmate who tested positive for COVID-19. (Doc. 23 at 15). However, Galeano-Xitumul is

not currently housed with anyone suffering from COVID-19 symptoms and, thus, would

appear to no longer be at an elevated risk of exposure to the virus. (Doc. 19 at 7-8).

173 Doc. 1-3. Excepted from this are Galeano-Xitumel, Santos, Moronta, Gomez, and Cruz-

Gallegos, whom Dr. Vosk deems at a “high” or “elevated” risk. (Id. at 10-11).

174 Id. at 5.

however, that Ramirez-Diaz is more likely than anyone else to develop such an

infection as a result of COVID-19. As to Lopez-Ramirez, Dr. Vosk states simply

that Lopez-Ramirez is “at risk for severe illness and death from” COVID-19.176

However, this broad statement applies to every individual in the world, as twenty

percent of the population as a whole is at risk of severe illness from COVID-19.177

Third, Petitioners have not demonstrated that they would “be safer if [they]

were released from ICE custody.”178 Unfortunately, COVID-19 is rapidly sweeping

the nation and the Commonwealth of Pennsylvania, and there is no evidence in the

record that Petitioners have a location in which to shelter in place where they are

less likely to contract COVID-19 than they are at these penal facilities. Indeed,

based upon the undeveloped record, it is possible that Petitioners live in highly

impacted regions such as Philadelphia, and it is possible that family members with

whom they would live have been infected with COVID-19, presenting a risk of

infection should Petitioners return home. Unanswered in Petitioners’ petition or

materials in support of their motion for a TRO is whether Petitioners are any less

safe in York County or Pike County than they would be if released;179 the inability

to answer this fundamental question is ultimately fatal to their motion.

176 Id. at 11.

177 Id. at 5.

178 Verma, 2020 WL 1814149, at *6.

179 While there are several infections in Pike County, York County appears relatively safe. As

Finally, although medical care at a correctional facility is not optimal, in Pike

County and York County, Petitioners have access to around-the-clock medical care

and consistent checks to monitor whether they have potentially been infected with

COVID-19.180 Moreover, should any individual test positive for COVID-19, they

would be regularly monitored and have access to rapid medical care, including

treatment at a local hospital, if needed.181 There is no evidence that Petitioners would

have better access to medical care if released from custody—and therefore be safer

if released—which in turn militates against a finding of irreparable harm.

Because Petitioners have not satisfied the first two factors necessary for the

issuance of a TRO, the Court will not examine the remaining factors.182 The Court

recognizes the difficult circumstances in which Petitioners find themselves, but

based upon the current record, the Petitioners simply have not met their “heavy

burden” of demonstrating entitlement to a TRO.183 In the absence of any

extraordinary or compelling reasons to grant preliminary relief, the motion for a

TRO will be denied.

this § 2241 petition was filed. See Immigration and Customs Enforcement, ICE Guidance on

COVID-19: Confirmed Cases, https://www.ice.gov/coronavirus (last accessed Apr. 23, 2020).

180 Doc. 17-1 at 5-6.

181 Id.

182 See Greater Phila. Chamber of Commerce, 949 F.3d at 133 (stating that only if movant

establishes a likelihood of success on the merits and the existence of irreparable harm should

“the district court consider the remaining two factors”).

III. CONCLUSION

For the foregoing reasons, Petitioners’ motion for a TRO will be denied.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge