Carballo v. Barr, Case No.: 2:20-cv-01315-APG-BNW

• Decision Date: 30 September 2020
• Docket Number: Case No.: 2:20-cv-01315-APG-BNW
• Citation: 491 F.Supp.3d 860
• Parties: Sandor Anival Cordova CARBALLO, et al., Petitioners, v. William BARR, et al., Respondents.
• Court: U.S. Court of Appeals — Third Circuit

491 F.Supp.3d 860

Sandor Anival Cordova CARBALLO, et al., Petitioners,

v.William BARR, et al., Respondents.

Case No.: 2:20-cv-01315-APG-BNW

United States District Court, D. Nevada.

Signed September 30, 2020

Hardeep Sull, Sull and Associates, Las Vegas, NV, for Petitioners.

Brianna Smith, U.S. Attorney's Office, Las Vegas, NV, Jacob B. Lee, Struck Love Bojanowski & Acedo, PLC, Chandler, AZ, for Respondents William Barr, Chad Wolfe, Matthew T. Albence, Thomas E. Feeley.

Ashlee Hesman, Jacob B. Lee, Struck Love Bojanowski & Acedo, PLC, Chandler, AZ, Brianna Smith, U.S. Attorney's Office, Gina Winspear, Dennett Winspear, Las Vegas, NV, for Respondent Brian Koehn.

Order Granting in Part Motion to Dismiss

[ECF No. 32]

ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

This lawsuit was filed by 26 individual immigration detainees who assert that their federal constitutional rights have been violated because the detention center where they are housed has used inadequate measures and medical care to protect them from contracting COVID-19. The defendants move to dismiss the lawsuit, raising the question whether this action is properly brought, in part, as a habeas action. I determine that it is not, so I will grant the motion to dismiss in part and dismiss the habeas claims. The case will proceed on the plaintiffs’ civil rights claims.

On July 16, 2020, Sandor Anival Cordova Carballo and 25 other individuals¹ held in civil immigration detention at the Nevada Southern Detention Center (NSDC),² in Pahrump, Nevada, filed a "Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief" (Complaint). ECF No. 1. The Complaint names the following defendants: William Barr, Attorney General of the United States; Chad Wolfe, Acting Secretary of the Department of Homeland Security; Matthew T. Albence, Deputy Director and Senior Official Performing the Duties of Director, U.S. Immigration and Customs Enforcement (ICE); Thomas E. Feeley, District Director of the Salt Lake City District Office, ICE; and Brian Koehn, Warden, NSDC. The defendants are sued in their official capacities. Defendants Barr, Wolfe, Albence, and Feeley move to dismiss, arguing that the plaintiffs’ claims are not cognizable in a habeas action under 28 U.S.C. § 2241, and therefore this court lacks subject matter jurisdiction over the claims.

Federal courts are courts of limited jurisdiction, with the power to hear cases only when authorized by the Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "Dismissal for lack of subject matter jurisdiction is appropriate if the complaint, considered in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction." In re Dynamic Random Access Memory (DRAM) Antitrust Litigation , 546 F.3d 981, 984–85 (9th Cir. 2008). When subject matter jurisdiction is challenged in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the burden of establishing subject matter jurisdiction is on the party invoking the court's jurisdiction. See id. The court presumes a lack of subject matter jurisdiction until the plaintiff establishes that it exists. Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673.

Federal Rule of Civil Procedure 12(b)(6) provides for motions to dismiss for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) motion tests the legal sufficiency of the plaintiff's claims. Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker , 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint and construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp. , 74 F.3d 955, 957 (9th Cir. 1996). The court should "begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth."

Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations." Id.

The notice pleading standard applicable in ordinary civil actions does not apply in habeas corpus cases; habeas petitions must meet heightened pleading requirements. See McFarland v. Scott , 512 U.S. 849, 856, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) ; see also Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, Advisory Committee Notes ("[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility of constitutional error.’ " (quoting Aubut v. State of Maine , 431 F.2d 688, 689 (1st Cir. 1970) )).

The general nature of the COVID-19 pandemic, as reported by the Centers for Disease Control and Prevention (CDC), is now well-known. https://www.cdc.gov/coronavirus/2019-nCoV/index.html (all internet materials as last visited September 29, 2020).³ The CDC describes the pandemic, which is caused by a novel coronavirus, SARS-CoV-2, as "a serious global health threat." https://www.cdc.gov/coronavirus/2019-ncov/global-covid-19/index.html. As of September 29, 2020, the CDC reported 7,095,422 total cases in the United States, and 204,328 total deaths in the United States from the disease. https://covid.cdc.gov/covid-data-tracker/#cases_totalcases. COVID-19 is highly contagious—"spreading very easily and sustainably between people"—and it is thought to spread "between people who are in close contact with one another (within about 6 feet)," "through respiratory droplets produced when an infected person coughs

, sneezes, or talks." https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. The CDC advises that it may be spread by people who are not showing symptoms. Id. The CDC advises that the best ways to protect oneself and others is to know how it spreads; wash hands often; avoid close interpersonal contact; cover the mouth and nose with a mask when around others; cover the mouth when coughing or sneezing; clean and disinfect frequently touched surfaces daily; and monitor health daily. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. The CDC advises that some people are more likely than others to become severely ill from COVID-19, and that this includes racial and ethnic minority groups, the elderly, and people with certain underlying medical conditions. https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html. There is currently no vaccine to prevent COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

On March 12, 2020, Governor Steve Sisolak issued a declaration of emergency in the State of Nevada due to COVID-19. https://gov.nv.gov/News/Emergency_Orders/2020/2020-03-12_-_COVID-19_Declaration_of_Emergency. On March 13, 2020, President Donald J. Trump declared the COVID-19 outbreak in the United States a national emergency. https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. Correctional and detention facilities present unique challenges with respect to control of SARS-CoV-2 transmission among incarcerated and detained persons, staff, and visitors. https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.

In their Complaint, the plaintiffs allege that the defendants have "failed miserably to take timely and necessary action to reduce the risk of [COVID-19] to detained persons and staff" at NSDC. ECF No. 1, p. 2. The allege:

People [immigration detainees at NSDC] sleep on bunk beds in crowded cells or dormitories. They eat meals at packed tables, seated shoulder to shoulder. They use communal bathrooms. They have little or no access to hand sanitizer, soap, gloves, or masks. They do not clean. They are in the constant presence of guards, officers, and staff who continually rotate in and out of the facility, each time risking transmission of the virus to those inside and outside the detention center.

* * *

Detained persons at Nevada Southern [NSDC] cannot maintain a six-foot distance from other individuals: they sleep, eat, bathe, and engage in other activities in close proximity with each other. Cleaning standards in Southern Detention [NSDC] common areas and Plaintiffs’ cells are shockingly inadequate, and cleaning supplies are not always available. More importantly to note that neither Southern Detention nor ICE has any of its personnel clean the facility, nor contract with a third-party contractor to clean the facility; it is reprehensible that sick detainees are cleaning the facility and thereby spreading the novel coronavirus.

* * *

Persons detained at Nevada Southern are housed together in units, which, according to Plaintiffs, hold a flexible number of 35 to 40 individuals. The units house individuals in close quarters, well under the distance of six feet apart that the CDC recommends. Within the unit, most individuals’ beds are stacked close to others, so that you always have someone at your head and/or your feet. These individuals are held in this same space all day, particularly when that unit is in "cohort" status. They do not leave, they do not get fresh air, they are all stuck with each other. They share the same restrooms, sinks and tables to eat. They do not leave.

Not only is social distancing essentially impossible in these conditions, but the hygienic situation in the facility is inadequate to abate the spread of COVID-19. The facility relies on detainees who "work" for $1 a day to clean the tables with no employees or third party contractors coming in to clean. They are not provided with sufficient protective equipment, such as

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