Ehimare v. Barr

• Decision Date: 06 November 2020
• Docket Number: No. 1:20-CV-00228-H,1:20-CV-00228-H
• Citation: 499 F.Supp.3d 303
• Parties: Pascal EHIMARE, Petitioner, v. William BARR, et al., Respondents.
• Court: U.S. District Court — Northern District of Texas

499 F.Supp.3d 303

Pascal EHIMARE, Petitioner,

v.William BARR, et al., Respondents.

No. 1:20-CV-00228-H

United States District Court, N.D. Texas, Abilene Division.

Signed November 6, 2020

Pascal Ehimare, Anson, TX, pro se.

ORDER

JAMES WESLEY HENDRIX, United States District Judge

Petitioner Pascal Ehimare, a detainee proceeding pro se, filed an emergency motion for temporary restraining order (TRO) and temporary release in response to the COVID-19 pandemic. The motion was docketed as a petition for a writ of habeas corpus under 28 U.S.C. § 2241, and Petitioner paid the $5.00 filing fee applicable to habeas cases. Petitioner asserts that he is entitled to immediate release because the ongoing COVID-19 pandemic—and Respondents' inadequate response to the pandemic—have created unconstitutional conditions of confinement at the Bluebonnet Detention Center (BBDC). As explained below, the Court finds that the emergency motion for TRO must be denied because he has failed to show a substantial likelihood of success on the merits. Additionally, the habeas petition must be dismissed for lack of subject matter jurisdiction.

1. Background

Petitioner is a 33-year-old native and citizen of Nigeria who is detained in the custody of Immigration and Customs Enforcement (ICE) while his removal proceedings are pending. He is currently confined in the BBDC in Anson, Texas. He suffers from a chronic respiratory disease—asthma—that places him in the category of individuals at higher risk for serious health consequences if he were to contract COVID-19.

A. COVID-19 and Petitioner's Health Conditions

Courts have recognized that the ongoing COVID-19 pandemic "presents an extraordinary and unique public-health risk to society," which has required "unprecedented protective measures" by local, state, and national governmental authorities to limit the spread of the virus. Sacal-Micha v. Longoria , 449 F.Supp.3d 656, 665-66 (S.D. Tex. 2020). The pandemic is threatening all communities right now, both in the free world and inside detention facilities. The Center for Disease Control (CDC) recommends that individuals wash their hands often, practice social distancing, and wear masks to mitigate the spread of the virus.¹

There is no doubt that the virus has significantly impacted the BBDC. Petitioner points out that the BBDC has reported over 300 confirmed cases in detainees. Indeed, an outbreak over the summer resulted in the BBDC topping the list as the ICE detention center with the most cases. But by the time Petitioner filed his motion four months later, thankfully, the number of active cases among detainees at the BBDC has dropped significantly.² And fortunately, no detainees at the BBDC have died after testing positive for COVID-19.³

B. Petitioner's Allegations Regarding the BBDC

Petitioner claims that the conditions at the BBDC do not allow for proper social distancing. (Dkt. No. 2.) He alleges that his dorm is about 67% full—with 55 detainees living in a dorm with a capacity of 82. (Id. at 4–5.) He states that the beds are only two feet apart and that the detainees share tablets, toilets, bathroom, and phones. (Id. ) He eats in the dining hall, seated only a foot away from other detainees. (Id. at 5.) He also complains that he is forced to interact with officers and workers who seldom wear masks or other personal protective equipment. (Id. ) He acknowledges that the BBDC "has been doing what they can do to limit the spread of the disease, however," he complains that they cannot eliminate or even mitigate the risk to his satisfaction. (Id. ) Thus, he asserts that he is entitled to immediate injunctive relief—his release from detention.

2. Standards Applicable to Temporary Restraining Orders

"An injunction is an extraordinary remedy and should not issue except upon a clear showing of possible irreparable injury." Lewis v. S.S. Baune , 534 F.2d 1115, 1121 (5th Cir. 1976). A party seeking a preliminary injunction or temporary restraining order must prove four elements:

1. a substantial likelihood of success on the merits of his case;

2. a substantial threat that the plaintiff will suffer irreparable injury; 3. that the threatened injury outweighs any harm that the injunctive order might cause the defendant; and

4. that the injunction is in the public interest.

Women's Med. Ctr. v. Bell , 248 F.3d 411, 419 n. 15 (5th Cir. 2001). Injunctive relief will be denied if the movant fails to prove any of these four elements. Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana , 762 F.2d 464, 472 (5th Cir. 1985). A federal court may issue a temporary restraining order without notice to the adverse party only if "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A).

As courts of limited jurisdiction, federal courts must "affirmatively ascertain subject-matter jurisdiction before adjudicating a suit." Nianga v. Wolfe , 435 F. Supp. 3d 739, 743 (N.D. Tex. 2020). "A party seeking a TRO cannot establish a ‘substantial likelihood of success on the merits’ of his claim if the court concludes that it lacks jurisdiction to adjudicate the claim altogether." Id.

Petitioner verified his allegations with a declaration under penalty of perjury. But he has not demonstrated an immediate risk of irreparable injury, loss, or damage. Moreover, the facts that he alleges do not show that he is entitled to the relief he seeks. He seeks habeas relief, but his claims are not cognizable under the habeas corpus statute. As a result, he has failed to show a substantial likelihood of success on the merits of his claim and he is not entitled to the extraordinary remedy he seeks.

3. Conditions-of-Confinement Claims

Federal law provides two distinct avenues to relief for complaints related to confinement: the petition for writ of habeas corpus and the civil-rights action for equitable or monetary relief. Muhammad v. Close , 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004). Habeas is reserved for "[c]hallenges to the validity of any confinement or to particulars affecting its duration," while civil-rights actions are typically used to attack conditions of confinement. Id. (citing Preiser v. Rodriguez , 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ).

"Which statutory vehicle to use depends on the nature of the claim and the type of relief requested." Poree v. Collins , 866 F.3d 235, 243 (5th Cir. 2017). The "core issue" is "whether the prisoner challenges the ‘fact or duration’ of his confinement or merely the rules, customs, and procedures affecting ‘conditions’ of confinement. Cook v. Tex. Dep't of Crim. Justice Transitional Planning Dep't , 37 F.3d 166, 168 (5th Cir. 1994).

A petitioner may seek habeas relief under 28 U.S.C. § 2241 if he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). Habeas exists solely to "grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose." Pierre v. United States , 525 F.2d 933, 935-36 (5th Cir. 1976). "Simply stated, habeas is not available to review questions unrelated to the cause of detention." Id. at 935. "The Fifth Circuit follows a bright-line rule: ‘If a favorable determination ... would not automatically entitle [the detainee] to accelerated release, ... the proper vehicle is a [civil rights] suit.’ " Sacal-Micha , 449 F.Supp.3d at 662 (quoting Carson v. Johnson , 112 F.3d 818, 820-21 (5th Cir. 1997) ).

Fifth Circuit precedent provides that unconstitutional conditions of confinement—even conditions that create a risk of serious physical injury, illness, or death—do not warrant release.

Spencer v. Bragg , 310 F. App'x 678, 679 (5th Cir. 2009) (citing Carson , 112 F.3d at 820–21 ). Even allegations of mistreatment that amount to cruel and unusual punishment do not nullify an otherwise lawful incarceration or detention. Cook v. Hanberry , 596 F.2d 658, 660 (5th Cir. 1979). Rather, the proper remedy for unconstitutional conditions of confinement should be equitable—to enjoin the unlawful practices that make the conditions intolerable. See id. Thus, "allegations that challenge the fact or duration of confinement are properly brought in habeas petitions, while allegations that challenge rules, customs, and procedures affecting conditions of confinement are properly brought in civil rights actions." Schipke v. Van Buren , 239 F. App'x 85, 85–86 (5th Cir. 2007) (citing Spina v. Aaron , 821 F.2d 1126, 1127–28 (5th Cir. 1987) ).

A demand for release does not convert a conditions-of-confinement claim into a proper habeas request. See Springer v. Underwood , No. 3:19-CV-1433, 2019 WL 3307220, at *2 (N.D. Tex., Jun. 28, 2019), rec. accepted , 2019 WL 3306130 (N.D. Tex., Jul. 22, 2019) (finding that "[Petitioner's] allegations—that exposure to asbestos and mold while incarcerated violated the Eighth Amendment—must be pursued under Bivens. And his request for a ‘reduction in [his] sentence’ ... does not convert his civil rights claims to habeas claims.") (citing Rios v. Commandant, U.S. Disciplinary Barracks , 100 F. App'x 706, 708 (10th Cir. 2004) ("In our view, a prisoner may not transform a civil rights action involving the conditions of his confinement into a § 2241 petition merely by seeking sentencing relief in a manner not connected to his substantive claims.")); see also Archilla v. Witte , 2020 WL 2513648, at *12 (N.D. Ala. May 15, 2020) ("But tacking a traditional habeas remedy on to a prototypical conditions-of-confinement claim does not convert that classic civil rights claim into a habeas claim,"). In sum, it is well established in this circuit that a detainee is not entitled to habeas relief if he raises civil-rights claims related to the conditions of his confinement. Sanchez v. Brown , No. 3:20-CV-00832, 2020 WL 2615931, at *12 (N.D....