In re Bahadur, EP-19-CV-00357-DCG

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtDAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE
Citation441 F.Supp.3d 467
Decision Date27 February 2020
Docket NumberEP-19-CV-00357-DCG
Parties IN RE Khatri Chhetri Sher BAHADUR

441 F.Supp.3d 467

IN RE Khatri Chhetri Sher BAHADUR

EP-19-CV-00357-DCG

United States District Court, W.D. Texas, El Paso Division.

Signed February 27, 2020


441 F.Supp.3d 468

Angelica Astrid Saenz, Natashia Denise Hines, United States Attorney's Office, Manuel Romero, Western District of Texas, El Paso, TX, for United States of America.

Joseph R. Veith, Law Office of Joseph R. Veith, El Paso, TX, for Khatri Chhetri Sher Bahadur.

MEMORANDUM OPINION AND ORDER

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

On January 30, 2020, the Court held an evidentiary hearing on the Government's request for an extension of its authorization to administer involuntary medical care, involuntary hydration in the form of IV fluids, and involuntary nutrition in the form of nasogastric tube ("NG") placement

441 F.Supp.3d 469

with necessary enteral feedings to Respondent Khatri Chhetri Sher Bahadur ("Respondent"). See ECF No. 29. After the hearing, the Court issued an order extending the Government's authorization. ECF No. 28. Therein, the Court noted that it would include its reasoning for granting the order in a forthcoming memorandum opinion and order. Id. In view thereof, the Court issues the following memorandum opinion and order.

I. BACKGROUND

Respondent is a citizen of Nepal who entered the United States on or about May 23, 2019 without inspection near El Paso, Texas. Govt's Ex Parte Mot. at 1, ECF No. 1. On November 4, 2019, an immigration judge ordered Respondent removed to Nepal. Id. Respondent filed an appeal before the Board of Immigration Appeals ("BIA") that is currently pending. Id. at 2. Respondent is currently detained in a detention facility operated by Immigration and Customs Enforcement ("ICE") and engaged in a hunger strike. Id. Respondent states that his hunger strike will continue until he is released. ECF No. 22 at 15. Respondent's first documented missed meal was dinner on November 19, 2019. Govt's Ex Parte Mot. at 2. ICE placed Respondent on official hunger strike protocol and under the care of a doctor under contract with ICE ("ICE Doctor") after Respondent missed his ninth meal on November 22, 2019. Id.

On December 6, 2019, the Government filed an ex parte motion for authorization to provide involuntary medical care, hydration, and nutrition. Id. at 1. Along with its motion, the Government submitted a declaration from the ICE Doctor in which she noted that intrusive medical procedures were necessary to preserve Respondent's life and health after serious medical complications arose from Respondent's hunger strike. Id. 2–3,18. That same day, ICE transported Respondent to a local hospital in El Paso ("First Hospital") to have the NG tube placed because the ICE Doctor was out of town. ECF No. 3 at 1.

On December 6, the Court granted the Government's ex parte motion and issued an order authorizing medical providers under contract with ICE to perform involuntary medical care, hydration, and nutrition, for thirty days, under the appropriate standards of medical care consistent with medical practice. ECF No. 2 at 3. The Court ordered that a medical doctor from the First Hospital be physically present during the involuntary medical care, hydration, and nutrition performed by the medical staff to personally supervise, evaluate, and ensure that any such procedures were performed within the appropriate standards of care.1 Id. The Court further ordered that Respondent would remain at the First Hospital under adequate medical care and treatment until the ICE Doctor and the medical doctor from the First Hospital, who was present at the placement of the NG tube, were both satisfied that Respondent's medical condition had improved and they had devised all necessary medical logistics to transfer him back to the ICE facility. Id. The Court also ordered the Government to appraise the Court on Respondent's medical condition on a weekly basis for the duration of this matter. Id. Also, on December 6, the Court contacted the offices of a bank of local attorneys, who had previously indicated

441 F.Supp.3d 470

their willingness to volunteer to represent respondents in these cases, in search for volunteers to represent Respondent in this matter. ECF No. 30 at 1. On December 9, 2019, Mr. Joseph Veith voluntarily appeared on Respondent's behalf. Id.

Respondent was discharged from the First Hospital on December 11, 2019 and transported back to the ICE facility. ECF No. 3 at 3. On December 23, while ICE medical personnel were performing a blood draw for Respondent's weekly laboratory work, Respondent became unresponsive, and his respiratory rate dropped to approximately a third of its normal rate. ECF No. 8 at 2. Emergency medical services transported Respondent to a second local hospital in El Paso ("Second Hospital"). Id. Respondent was discharged from the Second Hospital after he was in stable condition and transferred back to the ICE facility on December 26. ECF No. 23 at 2.

On December 30, the Government filed a "Motion for Extension of Order of Authorization" (ECF No. 10), seeking to extend the authorization to perform the involuntary procedures for another thirty days. The Court granted the Government's motion and set an evidentiary hearing on January 13, 2020 to determine whether the authorization should remain in place. ECF No. 11. During the days before the evidentiary hearing, the parties exchanged medical expert reports on Respondent's medical condition and care. ECF No. 14 at 1. On January 7, 2020, Respondent was transferred again to the Second Hospital as a precautionary measure after he presented low blood pressure. ECF No. 23 at 2. After his condition was deemed stable that same day, he was transferred back to the ICE facility. Id.

On January 10, 2020, the Government moved for a second extension of the authorization to perform the involuntary procedures and to reset the evidentiary hearing until both parties had adequate opportunity to respond to each other's medical expert reports. ECF No. 13. That same day, the Court granted the Government's motion and reset the evidentiary hearing to January 30, 2020. ECF No. 14. On January 13, Respondent was transported to the First Hospital to have his NG tube replaced because the First Hospital would place a 12-french NG tube instead of a 16-french NG tube that ICE would have placed at its facility.2 ECF No. 23 at 3. On January 21, Respondent had a cough with blood-tinged phlegm, for which he underwent a speech therapy evaluation and was later advised that the cough resulted from irritation to his throat because of the NG tube. Id. at 4. On January 27, Respondent was discharged from the First Hospital and transferred back to the ICE facility, where he continues to receive the involuntary procedures and medical staff has continued to monitor his weight. ECF No. 33 at 4. As of today, Respondent is on day 95 of his hunger strike.

II. DISCUSSION

During the evidentiary hearing, the Government sought to extend its authorization to administer involuntary medical care, hydration, and nutrition to Respondent for another thirty days. ECF No. 29. The Government presented witness testimony from the ICE Doctor and an ICE Medical Expert to show that it had complied with the Court's previous authorization order and the involuntary procedures were performed

441 F.Supp.3d 471

under the appropriate medical standards of care.

Respondent argued that the Court should not extend the Government's authorization because the Government failed to comply with the Court's previous order after the involuntary procedures were not performed under the appropriate standards of care. Specifically, Respondent brought the declaration of his own medical expert witness, Parveen Parmar, M.D. MPH3 , who reviewed ICE's medical records on Respondent's medical condition, and reached the conclusion that Respondent was receiving substandard care while in ICE custody. Parmar Report, ECF No. 22.

A. Jurisdiction and Case Assignment

As a threshold matter, the Court will briefly address why it has jurisdiction to consider this matter before reaching the merits of the parties' contentions. The Government filed the instant matter as a sealed miscellaneous case when it first filed its ex parte motion for authorization. Govt's Ex Parte Mot. at 1. In its motion, the Government relied on the All Writs Act, 28 U.S.C. § 1651, as its jurisdictional basis to request authorization from the Court to administer the involuntary procedures to Respondent. Id.

First, the Government must file this type of matter as a civil action, not a miscellaneous case. According to the chapter on Intake and New Cases of the District Court Clerk's Civil Manual for this district, "[m]iscellaneous cases can be a variety of matters filed with the court that are not considered a civil or criminal case. These matters, however, may be indirectly or directly related to a civil or criminal case." Miscellaneous Cases , Intake & New Cases, W.D. Tex. Civ. Manual (revised 2019). These miscellaneous actions are "ancillary proceedings which are not defined as civil actions unless they are contested before a District Court Judge."...

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4 practice notes
  • Harris v. Bowser, Civil Action 18-768 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 1, 2021
    ...reason of insanity - who asserted claims of failure to supervise, inadequate medical care, and failure to protect);[7] In re Bahadur, 441 F.Supp.3d 467, 477 (W.D. Tex, 2020) (rejecting Youngberg in favor of Bell as a standard to apply to claims of a civil immigration detainee in a case invo......
  • Rytlewski v. Gov't of U.S., 20-CV-8543 (LLS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 9, 2020
    ...a miscellaneous case is an ancillary proceeding that is directly or indirectly related to a civil or criminal case); In re Bahadur, 441 F. Supp. 3d 467, 471-72 (W.D. Tx. 2020) (same); Robinson v. Ct. Clerks, E. Dist. of California, Sacramento, No. 11-CV-2679, 2012 WL 219147, at *2 (E.D. Cal......
  • RCI Entm't (San Antonio), Inc. v. City of San Antonio, Case No. SA-21-CV-0194-JKP
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • April 8, 2021
    ...See, e.g., Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996) (recognizing mandatory and prohibitory injunctions); In re Bahadur, 441 F. Supp. 3d 467, 473 (W.D. Tex. 2020) (same).It is well settled that the issuance of a prohibitory injunction freezes the status quo, and is intended "to pres......
  • Beltran v. Wolf, CIVIL ACTION NO. 1:20-CV-00152-C
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 20, 2020
    ...is entirely within the discretion of the Attorney General. See 8 U.S.C. §§ 1182(d)(5)(A) and 1226(a), (e) ; see also In re Bahadur , 441 F.Supp.3d 467, 486–87 (W.D. Tex. Feb. 27, 2020). Any decision made by the Attorney General is not subject to judicial review. 8 U.S.C. § 1226(e).III. CONC......
4 cases
  • Harris v. Bowser, Civil Action 18-768 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 1, 2021
    ...reason of insanity - who asserted claims of failure to supervise, inadequate medical care, and failure to protect);[7] In re Bahadur, 441 F.Supp.3d 467, 477 (W.D. Tex, 2020) (rejecting Youngberg in favor of Bell as a standard to apply to claims of a civil immigration detainee in a case invo......
  • Rytlewski v. Gov't of U.S., 20-CV-8543 (LLS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 9, 2020
    ...a miscellaneous case is an ancillary proceeding that is directly or indirectly related to a civil or criminal case); In re Bahadur, 441 F. Supp. 3d 467, 471-72 (W.D. Tx. 2020) (same); Robinson v. Ct. Clerks, E. Dist. of California, Sacramento, No. 11-CV-2679, 2012 WL 219147, at *2 (E.D. Cal......
  • RCI Entm't (San Antonio), Inc. v. City of San Antonio, Case No. SA-21-CV-0194-JKP
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • April 8, 2021
    ...See, e.g., Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996) (recognizing mandatory and prohibitory injunctions); In re Bahadur, 441 F. Supp. 3d 467, 473 (W.D. Tex. 2020) (same).It is well settled that the issuance of a prohibitory injunction freezes the status quo, and is intended "to pres......
  • Beltran v. Wolf, CIVIL ACTION NO. 1:20-CV-00152-C
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • July 20, 2020
    ...is entirely within the discretion of the Attorney General. See 8 U.S.C. §§ 1182(d)(5)(A) and 1226(a), (e) ; see also In re Bahadur , 441 F.Supp.3d 467, 486–87 (W.D. Tex. Feb. 27, 2020). Any decision made by the Attorney General is not subject to judicial review. 8 U.S.C. § 1226(e).III. CONC......

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