Hongwei Yang v. Mayorkas
| Decision Date | 25 February 2021 |
| Docket Number | Civil Action No. 20-cv-01806-RM-KMT |
| Parties | HONGWEI YANG, Plaintiff, v. ALEJANDRO MAYORKAS, Secretary of the United States Department of Homeland Security, JOHN FABBRICATORE, Denver Field Office Director, United States Immigration and Customs Enforcement, JOHNNY CHOATE, Warden, Aurora Contract Detention Facility, and ELIZABETH H. MCGRAIL, Immigration Judge, presiding at Immigration Court at Aurora Detention Center, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Before the court are four motions: (1) "Immigration Judge Elizabeth McGrail's Motion to Dismiss;" (2) "DHS Defendants' Motion to Dismiss;" (3) "Defendant Choate's Motion to Dismiss Plaintiff's Fifth Claim for Relief;" and (4) "DHS Defendants' Motion to Dismiss Based on Mootness." (["McGrail Motion"], Doc. No. 22; ["DHS First Motion"], Doc. No. 23; ["Choate Motion"], Doc. No. 25; ["DHS Second Motion"], Doc. No. 45.) Plaintiff hasresponded to the first three Motions, and Defendants have replied. (Doc. Nos. 26-27, 29-31.) No response has been filed to the fourth Motion, and the time to do so has lapsed.
Pro se Plaintiff Hongwei Yang ["Yang"], a nonresident alien detained by United States Immigration Customs and Enforcement ["ICE"] at the Aurora Detention Facility ["ADF"], brings this lawsuit, purportedly pursuant to 42 U.S.C. § 1983, asserting deprivations of his Fifth Amendment rights by the Secretary of Homeland Security, the ICE Denver Field Office Director, the ADF Warden, and a United States immigration judge—respectively, Defendants Alejandro Mayorkas, John Fabbricatore, Johnny Choate, and Elizabeth M. McGrail. (["Complaint"], Doc. No. 9 at 1-8.)
Plaintiff has reportedly been held at ADF, an ICE-contracted detention facility, since November 30, 2018. (Id. at 6.) He complains that "the pod in which [he] is forced to stay" while there is akin to "a chicken cage," in that it is too small, overly crowded, and offers only "limited sunshine at day time [sic]." (Id.) Plaintiff alleges that he "cannot see the outside except the limited sky," and he complains that "[s]uch a bad condition is the same as for a death penalty inmate." (Id.) Yang further complains that, due to his "19-month long indoor detention," he suffers from numerous ailments, including depression, lethargy, difficulty sleeping, body spasms, headaches, poor eyesight, nosebleeds, a sore throat, a runny nose, and chronic ear infections. (Id. at 7.) Plaintiff states that he has caught a "very bad cold" at the detention facility on three separate occasions, and complains that, on one occasion, ADF refused to provide him with "a long-sleeve shirt," even though "it was winter time [sic]." (Id.)
Yang, who is over fifty years of age and reportedly suffers from hypertension, further alleges that ADF has taken inadequate steps to prevent the spread of COVID-19 within its facility. (Id. at 6-7.) Plaintiff complains that, due to the cramped conditions of his confinement, he has been unable to practice effective social distancing to protect himself from COVID-19 infection. (Id. at 6.) Plaintiff further complains that, even though he "is at higher risk of death or serious illness from COVID-19 due to his health conditions," ADF officials sometimes do not wear masks when "working in [his] pod." (Id. at 6-7.) Yang recounts that, on one occasion, an unmasked ADF official coughed "within just one foot" of his person. (Id. at 6.) Plaintiff likewise complains that, on another occasion, an ADF official entered his "pod," while wearing a face mask improperly lowered around his neck. (Id.) When Plaintiff "questioned this officer why his mask did not cover his mouth and nose," the official reportedly became "angry" and threatened to "put [Plaintiff] in the hole." (Id.) Plaintiff complains that he was then "handcuffed for a while." (Id.)
In this lawsuit, Yang also alleges that he has been unlawfully detained "for [an] additional nine months," due to the "fault" of a United States immigration judge, Defendant Elizabeth McGrail. (Id. at 7.) Specifically, the Complaint alleges as follows:
Finally, Plaintiff alleges that his "pictures" have been "put on TV news for ICE/Geo's2 propaganda," despite the fact that he never gave "any person or any organization" the permission to do so. (Id. at 7-8.) Yang is adamant that this action violated his "privacy rights." (Id. at 8.) Plaintiff reports that he first "found his picture was put on TV news," in March 2020. (Id. at 7.) He alleges that the "warden assistant" at ADF, when notified of the issue, "admitted it is not right to use his picture." (Id.) Following these events, Plaintiff reportedly "fil[]ed a grievance," but even so, his "picture still appeared on TV news again and again." (Id. at 7-8.) According to the Complaint, Yang's image was most recently displayed on a July 2, 2020 Univision television newscast. (Id. at 8.) Yang complains that "[m]any detainees recognized [him] on TV," which "ma[de] him sad, and his depression worse." (Id.)
On June 18, 2020, Plaintiff initiated this federal action by filing an Emergency Motion for Release, seeking release from ICE custody "to abate the imminent harm of COVID-19." (Doc. No. 1 at 24.) Plaintiff thereafter filed a Complaint, on July 21, 2020, asserting various claims against the four named Defendants. (Compl. 1-10.) The Complaint's first three claims, which relate to the conditions of Yang's confinement at ADF, appear to be asserted against Defendants Choate, Fabbricatore, and Mayorkas [collectively, the "DHS Defendants"], in their official capacities only. (Id. at 2-3, 6-7, 10.) The fourth claim, which pertains to Yang's immigration proceeding, is lodged against Defendant McGrail, in both her individual and officialcapacities. (Id. at 4, 7, 10.) The fifth claim, which alleges a violation of Yang's "privacy rights," looks to be asserted against the DHS Defendants, in their official capacities, and against Defendant Choate, in his individual capacity, as well.3 (Id. at 2-3, 7-8, 10.) In the Complaint, Plaintiff demands the following forms of relief: (1) "Issue an order to immediately release him;" (2) "Issue an order that his pictures be deleted and not be used on TV again;" (3) "Award him restitution, pursuant to the federal law, caused by additional detention and his pictures used on TV;" and (4) "Grant him any other reliefs [sic] this court deems just and proper." (Id. at 10.)
On August 14, 2020, the DHS Defendants responded to the Complaint's allegations by filing a motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that Yang lacks any viable cause of action against them, or in the alternative, that Yang has failed to plausibly allege a violation of his constitutional rights. (DHS First Mot. 5-20.) That same day, Defendant Choate filed a separate motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), with respect to the fifth claim only, while Defendant McGrail filed her own motion to dismiss, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),for lack of subject matter jurisdiction and inadequate pleading. (Choate Mot. 1, 4-6; McGrail Mot. 1, 4-16.) All three motions are fully briefed and pending. (See Doc. Nos. 26-27, 29-31.)
In the interim, on January 4, 2021, Plaintiff was released from ICE custody, pursuant to an Order of Supervision. Three weeks later, on January 26, 2021, the DHS Defendants filed an additional motion to dismiss, under Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff's first three claims are now moot, given that he is no longer confined at ADF. (Id. at 6-8.) Plaintiff has not responded to the DHS Defendants' most recent motion to dismiss, and the time to do so has lapsed.4
Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractorsof Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (). The plaintiff's pro se status does not entitle him to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
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