finding that although “Congress has precluded review of BOP ‘determination[s], decision[s], or order[s]’ as to a prisoner’s place of imprisonment . . . Congress has not explicitly precluded review of constitutional claims based on these or similar decisions.”
How later courts described this case
- finding that although “Congress has precluded review of BOP ‘determination[s], decision[s], or order[s]’ as to a prisoner’s place of imprisonment . . . Congress has not explicitly precluded review of constitutional claims based on these or similar decisions.”
- holding that an immigration detainee could not bring a Rehabilitation Act claim against Immigration and Naturalization Services, ICE’s predecessor
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT March 29, 2021
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
LAREDO DIVISION
RAUL GARZA MARROQUIN, et al, §
§
Petitioners, §
VS. § CIVIL ACTION NO. 5:20-CV-54
§
JOSE GARCIA LONGORIA JR., et al, §
§
Respondents. §
§
MEMORANDUM AND ORDER
Petitioner-Plaintiff Olvera Amezcua (“Plaintiff”), an asylum seeker in civil
immigration detention, seeks a writ of habeas corpus, alleging that the conditions of
his detention expose him to an impermissibly high risk of contracting COVID-19, he
is uniquely vulnerable to COVID-19’s effects, and Defendants violate his rights under
the Fifth Amendment of the U.S. Constitution by continuing to detain him in these
conditions (Dkt. No. 1). Plaintiff also brings a claim under the Rehabilitation Act of
1973, 29 U.S.C. § 794 (id.). Plaintiff seeks a declaration and injunction to redress the
allegedly unlawful civil detention and to ameliorate all conditions that preclude
Plaintiff from taking the precautions necessary to prevent his contracting COVID-19
including, if necessary, an order requiring his immediate release from detention (id.).
Defendant opposes the petition and moves to dismiss the action, arguing that
Plaintiff (1) cannot invoke habeas to challenge the conditions of his confinement, (2)
cannot bring a direct constitutional claim here, and (3) does not state a claim under
the Rehabilitation Act. After reviewing the petition, the motion, the record, and the
applicable law, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s claims
(Dkt. No. 14).
Rule 12(b)(6) allows for dismissal if a plaintiff fails to state a claim upon which
relief can be granted. To survive a Rule 12(b)(6) challenge, a complaint must contain
“enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the
plaintiff pleads factual content that “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The Court accepts well-pleaded facts as true, but labels and
conclusions, formulaic recitations of the elements of a cause of action, or naked
assertions devoid of factual enhancement are insufficient. Twombly, 550 U.S. at 555.
First, Plaintiff seeks a writ of habeas corpus, alleging the conditions of his
confinement violate his rights under the Fifth Amendment of the U.S. Constitution.
However, as the Fifth Circuit recently confirmed in Rice v. Gonzalez, 985 F.3d 1069
(5th Cir. 2021), the writ of habeas corpus “is not available to review questions
unrelated to the cause of detention. Its sole function is to grant relief from unlawful
imprisonment or custody and it cannot be used properly for any other purpose.” Id.
(quoting Pierre v. United States, 525 F.3d 933, 935–36 (5th Cir. 1976)) (citing Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973)). Here, as in Rice, the allegations that Plaintiff
“might more likely be exposed to COVID-19 during confinement, and that he may
have certain common underlying health conditions, taken together do not impugn the
underlying legal basis for the fact or duration of his confinement.” 985 F.3d at 1070.
Accordingly, the Court has no power to grant the writ here and the petition must be
dismissed.
Second, Plaintiff requests in the alternative that the Court grant declaratory
and injunctive relief to compel Defendants to provide safe conditions as “a remedy to
[Defendants’] violation of the Fifth Amendment and to prevent serious, imminent,
irreparable physical injury to [Plaintiff]” (Dkt. No. 1 at 34). Defendants argue that
this amounts to a previously unrecognized cause of action arising directly from the
Constitution and should be dismissed (Dkt. No. 14 at 13–14). Defendants also argue
that, even if the Court recognized a cause of action here, Plaintiff fails to sufficiently
allege a Fifth Amendment claim (id. at 14–18).
“[T]he federal courts, and [the Fifth Circuit] in particular, have been hesitant
to find causes of action arising directly from the Constitution.” Hearth, Inc. v.
Department of Public Welfare, 617 F.2d 381, 382 (5th Cir. 1980). The few exceptions
to this rule, the Hearth court explained, “were necessitated primarily by the absence
of alternative remedies.” Id. (referencing the exceptions created in Davis v. Passman,
422 U.S. 228 (1979) and Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971)). “In each case, there simply was no other means of
seeking redress for flagrant violations of the plaintiff’s constitutional rights.” Hearth,
Inc., 617 F.2d at 382. And although these exception cases concerned the extension of
an implied cause of action in suits for damages, the Fifth Circuit has also declined to
recognize direct causes of action where the plaintiff seeks only prospective injunctive
relief against federal officers. See Alexander v. Trump, 753 F. App’x 201, 205–06 (5th
Cir. 2018) (dismissing claims for injunctive relief against FBI Director).
Here, “alternative remedies” are available; Plaintiff could bring an action
challenging his conditions of confinement under the Administrative Procedures Act
(“APA”) after filing a complaint with Defendants. See Umarbaev v. Moore, No. 3:20-
CV-1279-B-BN (N.D. Tex. June 6, 2020) (declining to recognize a direct cause of action
under Fifth Amendment for detainee’s conditions of confinement claim because such
claims may be brought under APA). “Generally, a lawsuit against an officer of the
United States in his official capacity is considered a lawsuit against the United
States,” and the United States, as a sovereign is generally immune from suit unless
it has waived its immunity. Alexander, 753 F. App’x at 205 (citing Danos v. Jonez,
652 F.3d 577, 581 (5th Cir. 2011)). While Section 702 of the APA waives the
Government’s sovereign immunity in certain circumstances, “judicial review under
the APA is unavailable when other statutes ‘preclude judicial review’ or when ‘agency
action is committed to agency discretion by law.” Sacal-Micha v. Longoria, 449 F.
Supp. 3d 656, 667 (citing 5 U.S.C. § 701(a); Texas v. United States, 787 F.3d 733, 755
(5th Cir. 2015)) (finding that both limitations applied to a claim seeking review under
the APA of an ICE parole determination).
However, these limitations do not apply where, as here, plaintiff seeks to
challenge conditions of his confinement. See Royer v. Fed. Bureau of Prisons, 933 F.
Supp. 2d 170, 181 (D.D.C. 2013) (finding that although “Congress has precluded
review of BOP ‘determination[s], decision[s], or order[s]’ as to a prisoner’s place of
imprisonment . . . Congress has not explicitly precluded review of constitutional
claims based on these or similar decisions.”). As such, the Court declines to create a
new cause of action arising directly from the Fifth Amendment for purposes of
challenging an immigration detainee’s conditions of confinement.
Third, and finally, Plaintiff argues his detention violates Section 504 of the
Rehabilitation Act (Dkt. No. 1 at 34–36), which forbids discrimination against
disabled persons in federally assisted programs. But, as Defendants argue in their
Motion to Dismiss, courts have precluded federal detainees from bringing
Rehabilitation Act claims against those agencies housing them. See, e.g., Acha v. Wolf,
2021 WL 537101, at *7 (W.D. La. Jan. 28, 2021); Roark v. Flanery, No. 5:12-CV-60,
2014 WL 4447451, at *27 (E.D. Tex. Sept. 9, 2014) (“[T]he Bureau of Prisons does not
fit within the definition of ‘programs or activities’ governed by § 794(a).”); Hurtado v.
Reno, 34 F. Supp. 2d 1261, 1264 (D. Colo. 1999) (holding that an immigration detainee
could not bring a Rehabilitation Act claim against Immigration and Naturalization
Services, ICE’s predecessor).
In any event, Plaintiff has not established he is entitled to relief. To establish
a prima facie case under the Rehabilitation Act, a plaintiff must show that “(1) [he]
is an individual with a disability under the Rehabilitation act; (2) [he] is otherwise
qualified for participation in the program; (3) that [he] is being excluded from
participation in, being denied the benefits of, or being subjected to discrimination
under the program solely by reason of his or her disability; and (4) the relevant
program or activity is receiving federal financial assistance.” Toure v. Huron, 20201
WL 75698, at *5 (W.D. Tex. Jan.8, 2021) (quoting Spann ex rel. Hopkins v. Work of
Faith Christian Ctr. Church, 589 F. Supp. 2d 759, 764 (S.D. Miss. 2008)). Here, even
assuming that the removal process is a program under the Rehabilitation Act,
Plaintiff has not sufficiently demonstrated he is being treated differently because of
his alleged disability. Accordingly, Plaintiffs claim, if any, under the Rehabilitation
Act fails.
The Court DISMISSES the petition for a writ of habeas corpus (Dkt. No. 1)
and GRANTS the motion to dismiss Plaintiff's other claims (Dkt. No. 14). All
remaining motions in this matter are hereby DENIED as MOOT.
It is so ORDERED.
SIGNED March 29, 2021.
Marina Garcia Marmolejo
United States District Judge