Ndir v. Doll

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MOMAR NDIR, : CIVIL ACTION NO. 1:20-CV-705

:

Petitioner : (Chief Judge Conner)

:

v. :

:

CLAIR DOLL, Warden, :

:

Respondent :

MEMORANDUM

Petitioner Momar Ndir is a civil detainee in the custody of the United States

Department of Homeland Security, Immigration and Customs Enforcement (“ICE”)

at York County Prison. Ndir brings this habeas action pursuant to 28 U.S.C. § 2241

seeking immediate release from ICE custody based on his fear that he will contract

the COVID-19 virus1 if he remains detained. For the reasons that follow, we will

deny Ndir’s petition.

I. Factual Background & Procedural History

Ndir is a 34-year-old citizen of the country of Senegal. (Doc. 1 ¶¶ 1, 12). On

September 3, 2003, Ndir entered the United States on a “B-2” visitor visa. (See id.

¶ 1; Doc. 4-1 ¶ 21); see also 8 U.S.C. § 1101(a)(15)(B). Ndir adjusted to the status of

lawful permanent resident on September 12, 2013. (See Doc. 1 ¶ 1).

1 The COVID-19 virus is also known as “severe acute respiratory

syndrome coronavirus 2” and “SARS-CoV-2.” 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.”

According to Joseph Dunn, Assistant Field Office Director for Enforcement

and Removal Operations in ICE’s Philadelphia Field Office (“AFOD Dunn”), Ndir

was arrested in North Carolina in October 2013—one month after his adjustment of

status—for obtaining property by false pretenses. (Doc. 4-1 ¶ 21). Ndir was placed

on probation for 12 months pursuant to a deferred prosecution agreement, and the

charges were dismissed when Ndir’s term of probation terminated in March 2015.

(Id.) Two years later, in May 2017, Ndir was convicted in the United States District

Court for the Eastern District of North Carolina for conspiracy to launder monetary

instruments and aiding and abetting aggravated identity theft. (Id.) AFOD Dunn

describes the offense conduct as follows:

Ndir and numerous others were involved in an extensive

scheme to possess, use, and traffic in stolen credit and

debit card account numbers and counterfeit access devices.

Ndir and others also conspired to launder the proceeds of

the access device fraud by purchasing large quantities of

cigarettes for resale. Additionally, the offense involved

the purchase of stolen credit card numbers from various

“dark websites,” usually run by criminal organizations in

Romania, the Ukraine, China, and elsewhere, and then re-

encoding the account numbers onto bank or gift cards. The

identifiable loss to the victims (10 or more) was $481,000.

(Id.) Ndir was sentenced to 42 months’ imprisonment for both offenses. (Id.)

After serving his federal sentence, Ndir was placed in removal proceedings.

(See id.) Ndir was charged as being removable under 8 U.S.C. § 1227(a)(2)(A)(iii)

and, because of his status as an “aggravated felon,” was subject to mandatory

detention pending removal. (See id.) The immigration court sustained the charge

of removability and ordered Ndir removed, and the Board of Immigration Appeals

affirmed the removal order. (Id.) Ndir petitioned for review in the Third Circuit

Court of Appeals, which granted a temporary administrative stay of his removal

while a motions panel considered whether his case met the criteria for a formal

stay. (See id.); see also Ndir v. Att’y Gen. U.S., No. 19-3320 (3d Cir. Dec. 3, 2019).

On March 17, 2020, the immigration court convened a bond hearing and found by

clear and convincing evidence that Ndir remained a flight risk and a danger to the

public, necessitating continued detention. (Doc. 4-1 ¶ 21). On March 31, 2020, the

Third Circuit denied Ndir’s motion for stay of removal and vacated the temporary

administrative stay. (Id.); Ndir, No. 19-3320 (3d Cir. Mar. 31, 2020). AFOD Dunn

advises that “[t]here is reason to believe that Ndir’s removal would occur within

the reasonably foreseeable future.” (Doc. 4-1 ¶ 21).

Ndir is currently detained pending removal at York County Prison. (See

Doc. 1 ¶ 2; Doc. 4-1 ¶ 21). He claims that the prison has failed to take appropriate

action to protect detainees from the COVID-19 virus. (Id. ¶ 14). Ndir does not allege

that he has a preexisting medical condition making him uniquely susceptible to

contracting the virus or to experiencing severe complications from the disease it

causes. (See generally Doc. 1). Instead, he expresses general concern about recent

reports that some younger individuals with no comorbidities have experienced

strokes after contracting the COVID-19 virus. (Doc. 1 ¶¶ 13, 25-28). Ndir alleges

that he has developed anxiety and is experiencing insomnia because of his

concerns. (See id. ¶ 44).

As to the conditions of confinement at York County Prison, Ndir alleges that

detainees are denied protective masks, hand sanitizer, or antibacterial soap; that

prison officials engage in unsanitary practices such as coughing and sneezing near

unprotected detainees; that the prison is not implementing isolation or quarantine

procedures; that monitoring and testing are not sufficiently widespread; that

cleaning and sanitizing are “irregular”; and that the very nature of a detention

facility prohibits effective social distancing. (See id. ¶¶ 14, 35). Ndir notes that

a fellow ICE detainee previously tested positive for the COVID-19 virus at York

County Prison. (Id. ¶ 17). And he states his belief that immigration detainees are

being overlooked in favor of criminal pretrial detainees and convicted prisoners as

government officials review individual cases for possible release. (See id. ¶ 24).

Evidence submitted by respondent paints a different picture. AFOD Dunn

notes that York County Prison has historically operated at or near its 2,245-person

capacity but that it is currently operating at approximately half capacity, with only

1,180 individuals housed in the facility as of last week. (See Doc. 4-1 ¶ 7). All staff

and vendors are now being screened for COVID-19 symptoms before entering the

facility. (Id. ¶ 16). In-person social visitation has been suspended, and professional

visitation is limited to noncontact visits. (Id. ¶ 18).

The prison has implemented thorough screening procedures for its inmates

and detainees. New inmates and detainees are screened upon intake for COVID-19

symptoms and potential exposure to the virus, and the existing prison population is

regularly monitored for symptoms via “roving temperature checks.” (Id. ¶¶ 11, 12,

17, 23(a)). Anyone who is symptomatic is isolated and tested for the virus; anyone

who is asymptomatic but possibly exposed is placed in a “cohort”2 for the duration

of the virus’s incubation period. (Id. ¶¶ 12-13). The prison has designated specific

quarantine housing units for individuals with suspected or confirmed cases of

COVID-19. (Id. ¶ 20).

York County Prison has also taken steps to lessen the risk of transmission

within the prison should an inmate, detainee, or staff member contract the virus.

AFOD Dunn explains that all staff and personnel entering the facility are required

to wear an N95 mask. (Id. ¶ 23(a)). Any individual in “isolation status” must wear

an N95 mask when leaving the cohorted housing unit. (Id.) All other detainees and

inmates are issued two surgical masks each and are required to wear a mask any

time they are out of their cell, with individuals housed in “dormitory” style units

being encouraged to wear masks even while sleeping. (Id.) Prison staff launder

the surgical masks weekly. (Id.) Inmates and detainees are provided one bar of

soap each, with exhausted bars being replaced immediately; high-contact and high-

traffic areas are being cleaned “repeatedly” during the day; and prison officials are

providing education to staff, inmates, and detainees on proper handwashing, hand

hygiene, and covering coughs. (Id. ¶ 15(a)).

2 According to AFOD Dunn, “cohorting” is an “infection prevention strategy”

that involves housing asymptomatic-but-potentially-ill detainees together during

a virus’s incubation period. (Id. ¶ 13). 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.)

To date, York County Prison has had only one confirmed case of the COVID-

19 virus within the facility. (Id. ¶ 22(a)). Specifically, on April 3, 2020, a female ICE

detainee tested positive for the virus. (Id.) That individual was quarantined and

placed under medical observation before eventually being released from custody.

(Id.) As of April 29, 2020, there are zero confirmed cases of the virus among ICE

detainees at York County Prison. (Id.)

AFOD Dunn reports that ICE has implemented federal guidance for

reassessing the continued detention of individuals “potentially being at higher risk”

for serious complications from COVID-19. (Id. ¶ 25). Ndir’s case was reviewed as

part of this process, although there is no indication in our record that Ndir in fact

qualifies as a higher-risk individual. (See id.) Reviewing officials determined that

Ndir is not an appropriate candidate for release because he “constitutes a danger to

persons or property and/or [a] serious risk[] of flight.” (Id.)

On April 28, 2020, Ndir filed a counseled petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241, requesting immediate release from ICE custody.3 We

ordered expedited briefing, and Ndir’s petition is now ripe for review.

3 Ndir also indicates that he submitted a request for humanitarian parole to

ICE in February 2020. (Doc. 1 ¶ 11). That request is unrelated to the pandemic; it

was animated by Ndir’s concerns about his wife’s mental health due to the recent

passing of her father and the decline in her mother’s health. (Id. ¶¶ 37-41). To the

extent Ndir asks the court to issue a writ of mandamus pursuant to 28 U.S.C. § 1361

concerning this request, we decline. Ndir’s “argument” in this respect is entirely

conclusory, lacks citation to relevant authority other than Section 1361 itself, (Doc. 1

¶¶ 37-41; Doc. 6 at 19-20), and utterly fails to show that no adequate means exist to

obtain the relief sought, that his right to the writ “is clear and indisputable,” or that

the writ is “appropriate” here. See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010)

(per curiam).

II. Legal Standard

A federal district court may issue a writ of habeas corpus if a petitioner

demonstrates that they are “in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2241(c)(3). As the Third Circuit Court of

Appeals has explained: the “core” purpose of habeas corpus “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.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002)

(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)). When a petitioner seeks immediate release from custody, the “sole federal

remedy” lies in habeas corpus. See Preiser, 411 U.S. at 500.

III. Discussion

Ndir asks this court to order his immediate release from ICE custody based

on his concern that he may become exposed to and contract the COVID-19 virus

while detained at York County Prison. Respondent disputes whether release is an

appropriate and proportional habeas remedy and whether Ndir’s claims have any

merit. We begin with respondent’s argument as to the scope of the habeas remedy.

A. Scope of the Habeas Remedy

We note as a threshold matter that respondent appears to have abandoned

the argument, raised in previous cases, that conditions-of-confinement claims are

not cognizable in habeas. (See generally Doc. 4). We have thoroughly explored this

jurisdictional issue and held that, under Third Circuit precedent, a claim alleging

conditions so “extreme” as to “mark a fundamental shift in the nature of [one’s]

confinement” can be raised in a habeas petition. See Camacho Lopez v. Lowe, No.

3:20-CV-563, 2020 WL 1689874, at *5-6 (M.D. Pa. Apr. 7, 2020) (citing Woodall, 432

F.3d at 236, 241-44; 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)). This rationale has become the prevailing rule in this judicial district.4

Because Ndir is detained at York County Prison, where the COVID-19 virus has

previously been detected in another civil immigration detainee, and because he

alleges that staff are not acting to protect detainees from exposure, we conclude

that we have habeas jurisdiction over the instant petition. Cf. Verma, 2020 WL

1814149, at *4.

4 See, e.g., Thakker v. Doll, No. 1:20-CV-480, ___ F. Supp. 3d ___, 2020 WL

2025384, at *2 (M.D. Pa. Apr. 27, 2020) (Jones, J.), appeal filed, No. 20-1906 (3d Cir.);

Bystron v. Hoover, No. 3:20-602, 2020 WL 1984123, at *3-4 (M.D. Pa. Apr. 27, 2020)

(Mannion, J.); Engelund v. Doll, No. 4:20-CV-604, 2020 WL 1974389, at *7 (M.D. Pa.

Apr. 24, 2020) (Brann, J.); Cuevas v. Pennsylvania, No. 1:19-CV-1733, 2020 WL

1911511, at *4 (M.D. Pa. Apr. 20, 2020) (Rambo, J.); Saillant v. Hoover, No. 1:20-CV-

609, 2020 WL 1891854, at *3 (M.D. Pa. Apr. 16, 2020) (Wilson, J.); see also Umarbaev

v. Lowe, No. 1:20-CV-413, 2020 WL 1814157, at *5 n.2 (M.D. Pa. Apr. 9, 2020) (Kane,

J.) (assuming without deciding that claim was cognizable in habeas).

Respondent argues that, if we choose to exercise jurisdiction in this case,

any remedy granted in habeas must be proportionate to the claim alleged. (See

Doc. 4 at 11-13). That is, respondent contends that the “only appropriate remedy”

for a conditions-of-confinement claim is “a cure of the violative conditions,” not

release from those conditions. (Id. at 11). We have previously indicated that this

argument has plausible merit. Buleishvili, 2020 WL 1911507, at *4. We cited as an

example the Third Circuit’s decision in Woodall, where a petitioner’s success on the

merits of his non-“core” habeas claim did not mean that he received the ultimate

habeas remedy sought—referral to a community corrections center. See id. (citing

Woodall, 432 F.3d at 251). Rather, the court said that “the appropriate remedy is an

order requiring the [Bureau of Prisons] to consider—in good faith—whether or not

Woodall should be transferred to a [community corrections center].” Woodall, 432

F.3d at 251. Woodall suggests that something short of immediate release may be the

proper remedy in similar non-“core” habeas cases. Because we conclude infra that

Ndir cannot prevail on his constitutional claims, we need not reach the question of

remedy today.

B. Merits of Ndir’s Habeas Petition

The gravamen of Ndir’s petition is his claim that York County Prison is

not implementing adequate measures to prevent the spread of the COVID-19 virus

within the facility. Specifically, he avers that York County Prison is “disregard[ing]

established safety standards,” placing him at high risk of contracting the COVID-19

virus. (Doc. 1 at 2). We glean two claims, both sounding in due process, from Ndir’s

petition: a claim that York County Prison is subjecting him to punitive conditions of

confinement, and a claim that York County Prison is being deliberately indifferent

to the risk posed by the COVID-19 virus.5 (Id. ¶¶ 52-63).

As to the first 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) (citations omitted).

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

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

on such a claim, Ndir must show that current conditions of confinement at York

County Prison “amount to punishment” lacking any reasonable relationship to “a

legitimate governmental objective.” Bell v. Wolfish, 441 U.S. 520, 535, 539 (1979). As

to his second claim, Ndir must demonstrate that detaining officials knew or should

5 Ndir styles his claims as arising under the Fifth and Eighth Amendments

to the United States Constitution. (See Doc. 1 at 1-2; Doc. 1 ¶¶ 52-63). Because Ndir

challenges the conditions of confinement in a county prison and alleges deliberate

indifference by a county warden, his claims necessarily arise under the Fourteenth

Amendment. Compare Ziglar v. Abbasi, 582 U.S. ___, 137 S. Ct. 1843, 1852-53, 1864

(2017) (applying Fifth Amendment to immigration detainees’ due process challenge

to conditions of confinement at federal detention center), Bell v. Wolfish, 441 U.S.

520, 523-24, 530-62 (1979) (applying Fifth Amendment to federal pretrial detainees’

due process challenges to conditions of confinement at federal correctional center),

and id. at 580 n.3 (1979) (Stevens, J., dissenting) (“Because this is a federal facility,

it is, of course, the Fifth Amendment that applies.”), with E.D. v. Sharkey, 928 F.3d

299, 303, 306-07 (3d Cir. 2019) (applying Fourteenth Amendment to immigration

detainee’s due process challenge to conditions of confinement at county detention

center), and Fuentes v. Wagner, 206 F.3d 335, 338, 343-44 (3d Cir. 2000) (applying

Fourteenth Amendment to federal pretrial detainee’s challenge to conditions of

confinement and treatment by staff at county prison). See also Hubbard v. Taylor,

399 F.3d 150, 158 n.13 (3d Cir. 2005) (explaining that “[t]he Fifth Amendment Due

Process Clause was implicated in Bell because the plaintiffs were federal pre-trial

detainees” (citing Fuentes, 206 F.3d at 344)). As many of these decisions reflect, the

operative Fourteenth Amendment legal standards nonetheless derive from Fifth

and Eighth Amendment jurisprudence and are largely identical, except as

otherwise indicated herein.

have known of, and consciously disregarded, an excessive risk to his health and

safety. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003)

(citation omitted); see also Woloszyn v. County of Lawrence, 396 F.3d 314, 320-21

(3d Cir. 2005) (citations omitted).

The judges of this district have by now reviewed the claims of dozens of

civil ICE detainees challenging their continued confinement during the COVID-19

pandemic based on the same constitutional theories raised by Ndir. The consensus

among our court is that much more than a generalized fear of the COVID-19 virus

is required to justify habeas relief on either claim.6 We must instead conduct an

“individualized” assessment of the record, evaluating whether the conditions at the

specific institution and the circumstances of the specific petitioner meet applicable

constitutional standards. See Buleishvili, 2020 WL 1911507, at *5 (citing Umarbaev

v. Lowe, No. 1:20-CV-413, 2020 WL 1814157, at *7 (M.D. Pa. Apr. 9, 2020); Saillant

v. Hoover, No. 1:20-CV-609, 2020 WL 1891854, at *4 (M.D. Pa. Apr. 16, 2020); Verma,

2020 WL 1814149, at *5).

In the context of the current global pandemic, relevant considerations

bearing on both constitutional inquiries include, but are not limited to: (1) the

petitioner’s condition, and specifically whether the petitioner has tested positive for

the COVID-19 virus or is exhibiting symptoms consistent with COVID-19, is known

to have been directly exposed to the virus, or is at high risk of experiencing serious

6 See generally Bystron, 2020 WL 1984123 (Mannion, J.); Engelund, 2020 WL

1974389 (Brann, J.); Cuevas, 2020 WL 1911511 (Rambo, J.); Buleishvili, 2020 WL

1911507 (Conner, C.J.); Saillant, 2020 WL 1891854 (Wilson, J.); Umarbaev, 2020 WL

1814157 (Kane, J.).

complications from COVID-19; (2) the detention space itself and the manner in

which it impacts the risk of contracting the virus; and (3) the facility’s efforts to

prevent or mitigate detainee exposure to the virus. Buleishvili, 2020 WL 1911507,

at *5 (adopting test developed by Judge Wilson in Saillant, 2020 WL 1891854, at *4).

As to any claim that detention is unconstitutionally punitive, we must of course

consider the initial basis and continued justification for the petitioner’s detention.

See id. And as to any deliberate-indifference claim, we must examine the response

of prison staff to the petitioner’s individual medical needs. See id. at *5-6. As

these considerations reflect, a petitioner’s age and medical condition are but two

factors among many. Increasingly—and we think correctly given the nature of

these claims—judges are concentrating their analyses on the conditions of

confinement and the conduct of the respondents.7

7 See, e.g., Bystron, 2020 WL 1984123, at *5-6 (petition of detainee with

hypertension denied because respondent had implemented adequate preventative

measures throughout facility); Engelund, 2020 WL 1974389, at *2-4, *9-11 (petition

of medically high-risk detainees denied where respondents, including respondent

Doll, had implemented extensive protective measures in response to the COVID-19

pandemic); Buleishvili, 2020 WL 1911507, at *6 (petition of symptomatic detainee

denied because facility staff had responded adequately to his medical needs and

had implemented extensive protective measures); Umarbaev, 2020 WL 1814157, at

*6-7 (petition of symptomatic detainee with hypertension denied on same basis);

Verma, 2020 WL 1814149, at *5-6 (petition of detainee with preexisting conditions

denied because, inter alia, respondent Doll had implemented extensive protective

measures); see also Thakker, 2020 WL 2025384, at *1, *4-5, *8-11 (ordering several

previously released detainees, all considered high risk, to return to ICE custody

based in part on “drastic changes” at local detention facilities, including York

County Prison); Camacho Lopez, 2020 WL 1689874, at *7-8 (finding that county

detention center had not exhibited deliberate indifference toward detainee who

contracted the COVID-19 virus in ICE custody and required hospitalization).

We conclude that habeas relief is not warranted here. Ndir is subject to

mandatory detention pending removal due to his status as an “aggravated felon”

convicted of serious federal crimes. See 8 U.S.C. § 1226(c)(1)(B). ICE officials

recently reviewed Ndir’s case and determined that detention remained necessary

because Ndir “constitutes a danger to persons or property and/or [a] serious risk[]

of flight.” (Doc. 4-1 ¶ 25). While the disjunctive nature of this statement obscures

exactly which reason officials relied on, either reason would independently qualify

as a legitimate government interest in detention for purposes of our due process

analysis. See Engelund, 2020 WL 1974389, at *9.

Nothing in the record suggests that Ndir is uniquely imperiled by

remaining in confinement during the pandemic. Ndir is only 34 years old and he is

not considered to be “high risk” by virtue of his age or otherwise. Cf. CENTERS FOR

DISEASE CONTROL AND PREVENTION, GROUPS AT HIGHER RISK FOR SEVERE ILLNESS,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-

higher-risk.html (last reviewed Apr. 17, 2020). He does not claim to have tested

positive for the virus, to have been directly exposed to it, or to be experiencing

symptoms of the disease it causes. We acknowledge Ndir’s concern based on

reports of strokes among younger individuals who contract the virus, (see Doc. 1

¶¶ 13, 25-28), but he submits no evidence from which we could even infer, much

less find, that he is personally susceptible to this outcome.

Finally, Ndir’s allegations concerning the lack of protective measures are

squarely contradicted by the record evidence supplied by respondent, as well as

recent findings of this court and others as to the efforts of York County Prison to

prevent the spread of the COVID-19 virus within its walls. See Thakker, 2020 WL

2025384, at *4-5; Engelund, 2020 WL 1974389, at *4-5, *13 n.179; Verma, 2020 WL

1814149, at *6. The prison has implemented extensive screening measures for

inmates, detainees, staff, and vendors; it has provided surgical masks to inmates

and detainees and requires staff to wear respirator masks; it has increased cleaning

and sanitation protocols and is offering hygiene education; and it has measures in

place to prevent an outbreak in the event any individual in the facility contracts the

virus. It is a testament to the robustness of York County Prison’s response that

there have been no confirmed cases of the virus since the initial positive test result

more than one month ago. See Thakker, 2020 WL 2025384, at *4-5.

Ndir makes much of the fact that York County Prison has not provided

detainees with gloves, hand sanitizer, or routine testing for the COVID-19 virus.

(See Doc. 1 ¶¶ 14, 34-35). Alcohol-based hand sanitizer has not been provided for a

reason: it presents a security risk in the prison setting where Ndir is housed. (See

Doc. 4-1 ¶ 15(a)). Moreover, guidance from the Centers for Disease Control and

Prevention (“CDC”) indicates that hand sanitizer is only necessary when “soap and

water are not readily available,” CENTERS FOR DISEASE CONTROL AND PREVENTION,

HOW TO PROTECT YOURSELF & OTHERS, https://www.cdc.gov/coronavirus/2019-

ncov/prevent-getting-sick/prevention.html (last visited May 7, 2020), and York

County Prison provides ready access to both. Nor can we agree with Ndir that

the unavailability of gloves and regular testing alone renders detention punitive,

particularly given the other significant efforts of prison staff to protect detainee

health and safety. As respondent notes, these same resources are in scarce supply

for the general public too. (See Doc. 4 at 13-14).

Ndir also suggests that his constitutional rights are being violated because a

“cramped” prison environment makes social distancing “impossible.” (Doc. 1 ¶¶ 14,

34-35). We recognize that the prison setting raises unique concerns regarding the

spread of the COVID-19 virus since, by their very nature, prisons are confined

spaces unsuited for social distancing. Verma, 2020 WL 1814149, at *4; see also

Engelund, 2020 WL 1974389, at *9. But the inability to practice effective social

distancing does not, in and of itself, render detention punitive. See Engelund, 2020

WL 1974389, at *9. The CDC acknowledges that individuals will be detained during

the pandemic and has issued preparation, prevention, and management guidance

for detention facilities. See CENTERS FOR DISEASE CONTROL AND PREVENTION,

INTERIM GUIDANCE ON MANAGEMENT OF CORONAVIRUS DISEASE 2019 (COVID-19) IN

CORRECTIONAL AND DETENTION FACILITIES, https://www.cdc.gov/coronavirus/2019-

ncov/community/correction-detention/guidance-correctional-detention.html (last

reviewed Apr. 18, 2020). York County Prison appears to be following that guidance

to the best of its ability.

As we have said before, there is no perfect solution for preventing the

spread of the COVID-19 virus within detention facilities. Verma, 2020 WL 1814149,

at *6. But the present record establishes that York County Prison is responding

adequately under these difficult circumstances. Ndir simply has not shown that

he is being subjected to punitive conditions of confinement or that the prison is

deliberately disregarding the threat posed by the COVID-19 virus. We therefore

conclude that Ndir is not entitled to habeas relief.

IV. Conclusion

Ndir’s petition (Doc. 1) for writ of habeas corpus will be denied. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: May 8, 2020