BAPTISTE v. WASHBURN et al
ORDER denying as moot #15 Motion for Ruling; granting #13 Motion for Leave to File Surreply. REPORT AND RECOMMENDATION re [ #7 MOTION to Dismiss filed by Respondents. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 11-21-22. (jdl)
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Warden, STEWART DETENTION
CENTER, et al.,
CASE NO. 4:22-CV-150-CDL-MSH
28 U.S.C. § 2241
ORDER AND RECOMMENDATION
Pending before the Court is Respondents’ motion to dismiss Petitioner’s application
for habeas corpus relief (ECF Nos. 7, 1).
For the reasons explained below, it is
recommended that Respondents’ motion to dismiss be granted.
Petitioner, a native and citizen of Canada, was taken into U.S. Immigration and
Customs Enforcement (“ICE”) custody in May 2022 and transported to Folkston ICE
Processing Center. Pet. 6-7, ECF No. 1; Resp’ts’ Mot. to Dismiss 2, ECF No. 7. 1 On
August 4, 2022, an immigration judge (“IJ”) ordered his removal to Canada, and Petitioner
waived his right to appeal. Resp’ts’ Ex. A, ECF No. 7-1. Petitioner was transferred to
According to Respondents, Petitioner was charged with removability based on convictions for
aggravated felonies. Resp’ts’ Mot. to Dismiss 2. Respondents attach no documentation to support
this assertion but only provide the information for background. Id. at 1 n.2. The Court agrees the
exact reason for Petitioner’s placement in immigration removal proceedings is not necessary for
the Court’s determination of the lawfulness of his current detention.
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Stewart Detention Center in Lumpkin, Georgia on August 29, 2022. Pet. 7. The Court
received Petitioner’s application for habeas relief under 28 U.S.C. § 2241 on September
26, 2022. Pet. 1, ECF No. 1. In his application, Petitioner claims he has been subjected to
prolonged detention in violation of his Fifth Amendment due process rights.
Respondents moved to dismiss Petitioner’s habeas application on October 7, 2022,
contending his claim of prolonged detention was premature under Zadvydas v. Davis, 533
U.S. 678 (2001). Resp’ts’ Mot. to Dismiss 3-4. Petitioner timely responded in opposition
to the motion (ECF No. 11), Respondents filed a reply brief (ECF No. 12) on November
8, 2022, and Petitioner filed a surreply (ECF No. 14). 2 Respondents’ motion to dismiss is
ripe for review.
Because a removal order has been entered, Petitioner’s detention is governed by 8
U.S.C. § 1231(a). Under § 1231(a), “when an alien is ordered removed,” the Attorney
Petitioner filed a motion for permission to file a surreply (ECF No. 13) and then filed a sixteen
page surreply (ECF No. 14). “Surreply briefs are not favored.” M.D. LR 7.3.1(B). Moreover,
Petitioner’s surreply exceeds the page limit allowed even for reply briefs. M.D. LR 7.4.
Nevertheless, Petitioner’s motion for permission to file a surreply (ECF No. 13) is GRANTED,
and the Court has considered his surreply. The Court notes that most of the arguments therein are
repetitive or frivolous. This includes Petitioner’s reliance on the mailbox rule to argue
Respondents’ reply brief was untimely and should be “barred” because it was not filed within
fourteen days of Petitioner placing his response “in the Stewart Detention Center’s established
mail system.” Pet’r’s Surreply 2, ECF No. 14 (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).
The prison mailbox rule “is applied to pro se prisoners’ legal filings to ensure that their filings are
not unfairly barred as untimely due to delays beyond their control.” Brown v. Kyle, No. 1:04–cv–
06539–AWI–SKO PC, 2011 WL 3358967, at *1 (E.D. Cal. Aug. 3, 2011). It “is not intended for
use against an opposing party to unfairly prevent consideration of that party’s filings.” Id. Here,
Respondents’ reply was filed within fourteen days of the Court’s receipt of Petitioner’s response,
which is presumably when Respondents received it. See id. Therefore, Petitioner’s request that
Respondents’ reply be stricken is denied. Petitioner has also filed a motion requesting the Court
to rule on his habeas petition (ECF No. 15). That motion is DENIED AS MOOT.
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General “shall” remove the alien within ninety days. 8 U.S.C. § 1231(a)(1)(A). This
removal period begins to run on the latest of:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of
the removal of the alien, the date of the court’s final order.
(iii) If the alien is detained or confined (except under an immigration
process), the date the alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B). Detention during the ninety-day removal period is mandatory.
8 U.S.C. § 1231(a)(2). Moreover, § 1231(a) allows for the continued detention of certain
categories of aliens beyond this ninety-day removal period. It provides:
An alien ordered removed who is inadmissible under section 1182 of this
title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of
this title or who has been determined by the Attorney General to be a risk to
the community or unlikely to comply with the order of removal, may be
detained beyond the removal period and, if released, shall be subject to the
terms of supervision in [§ 1231(a)(3)].
8 U.S.C. § 1231(a)(6). 3
By its explicit terms, § 1231(a)(6) does not limit the length of detention for an alien
detained under that section. In Zadvydas, however, the United States Supreme Court
applied the doctrine of constitutional avoidance to “read an implicit limitation into the
statute.” 533 U.S. at 689. The Supreme Court held that § 1231(a)(6) authorizes postremoval-order detention only for a period “reasonably necessary” to accomplish the alien’s
removal from the United States. Id. at 699-700. The Court recognized six months as a
presumptively reasonable period of time to allow the government to accomplish such
Petitioner falls into this category by virtue of his aggravated felony convictions. 8 U.S.C. §
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removal. Id. at 701. The Court of Appeals for the Eleventh Circuit has explained that to
be entitled to release under Zadvydas, an alien must show: “(1) that the six-month period,
which commences at the beginning of the statutory removal period, has expired when the
§ 2241 petition is filed; and (2) evidence of a good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future.”
Napolitano, 309 F. App’x 344, 346 (11th Cir. 2009) (per curiam) (quotation marks
omitted); see also Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (per curiam)
(“[I]n order to state a claim under Zadvydas the alien . . . must show post-removal order
detention in excess of six months [and] also must provide evidence of a good reason to
believe that there is no significant likelihood of removal in the reasonably foreseeable
Respondents contend Petitioner’s habeas application should be dismissed as
premature because he has not shown post-removal detention in excess of six months as
required by Zadvydas. Resp’ts’ Mot. to Dismiss 3-4. The Court agrees that Petitioner fails
to state a Zadvydas claim. Petitioner’s removal order became final on August 4, 2022,
when he waived his right to appeal the IJ’s decision. 8 C.F.R. § 1241.1(b). At the time he
filed his petition, he had been detained post-final-order-of-removal for less than two
months. Even now, he is well within the six-month presumptively-reasonable removal
period provided by Zadvydas.
Petitioner, however, contends Zadvydas is inapplicable to his due process claims
because it is predicated on the Government making good faith efforts to effect his removal.
Pet. 6; Pet’r’s Resp. to Mot. to Dismiss 2, ECF No. 11. He argues such is not the case here,
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and that “a reasonable time frame for the removal period for aliens being repatriated to
Canada, if [the Department of Homeland Security (“DHS”)]/ICE diligently put forth a good
faith effort in effectuating this removal, would amount to just 21 days.” Pet. 8. Citing a
series of conversations with the Canadian consulate and DHS/ICE agents, however,
Petitioner argues immigration officials were dilatory in requesting travel documents from
Canada. 4 Pet. 6-8. He contends this delay was both the result of gross negligence and a
conspiracy among Respondents to intentionally prolong the detention of aliens for the
purpose of financial gain. Pet. 9-10. He asserts that because his “detention was protracted
for reasons other than the legitimate immigration purpose for which it was designed[,] such
detention violated his Fifth Amendment rights.” Pet’r’s Resp. to Mot. to Dismiss 2.
Petitioner’s argument is novel but unconvincing.
presumptively-reasonable detention period is based on statutory construction. While the
Court cannot say there is no hypothetical set of facts in which detention for less than six
months could violate due process, Petitioner’s conclusory and unsubstantiated allegations
are insufficient to overcome the presumption of reasonableness. He asserts no facts to
support his claim of a conspiracy by Respondents to prolong his detention, and his criticism
of the speed and efficiency with which immigration officials sought to obtain his travel
documents demonstrates nothing more than a typical bureaucratic process. Petitioner’s
desire for a more expeditious removal does not mean his detention has been unreasonably
According to Respondents’ counsel, ICE/Enforcement and Removal Operations (“ERO”)
requested a travel document from the Canadian consulate on September 29, 2022. Resp’ts’ Mot.
to Dismiss 2.
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prolonged or that immigration officials have acted in bad faith, especially considering
Petitioner’s removal is not the only one they need to arrange. Therefore, the Court
concludes that Petitioner’s detention does not violate due process.
Petitioner also claims he is entitled to relief under 42 U.S.C. §§ 1983 and 1985 for
Respondents’ violations of his civil rights and under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346. Pet’r’s Resp. to Mot. to Dismiss 4. In fact, while Petitioner’s
applications cites the habeas statute, 28 U.S.C. § 2241 as a source of the Court’s
jurisdiction, he also cites 42 U.S.C. § 1983. Pet. 5. Further, although the Court does not
see a specific reference in the petition to 42 U.S.C. § 1985, Petitioner alleges Respondents
conspired to interfere with his civil rights. Pet. 2. Finally, Petitioner’s references to
negligence by Respondents speaks in terms of tort. 5 Id. His requested remedies include
an order directing the Government “to immediately end his false imprisonment by
Although not specifically referenced by Petitioner, the Court will also consider the possibility
that he meant to assert a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Respondents interpret Petitioner’s pleading as raising “conditions
of confinement” claims. Resp’ts’ Mot. to Dismiss 5. The Court has carefully reviewed the
petition, however, and does not see where Petitioner challenges the conditions of his confinement
except as to its duration and the mental distress caused thereby. To the extent Petitioner intends
to challenge his conditions of confinement, however, the Court agrees they are not cognizable in
a habeas action. See Vaz v. Skinner, 634 F. App’x 778, 781 (11th Cir. 2015) (per curiam)
(“Petitioner’s § 2241 petition is not the appropriate vehicle for raising an inadequate medical care
claim, as such a claim challenges the conditions of confinement, not the fact or duration of that
confinement.”); see also A.S.M. v. Warden, Stewart Cnty. Det. Ctr., 467 F. Supp. 3d 1341, 1348
(M.D. Ga. 2020) (concluding that the Court does not have jurisdiction to consider a habeas corpus
claim based on presence of Covid-19 at Stewart Detention Center). Respondents also interpret the
petition as raising state law tort claims. Resp’ts’ Mot. to Dismiss 5. Because the Court
recommends dismissal of Petitioner’s federal claims, any such claims—to the extent Petitioner
intended to assert them—should be dismissed as well. United Mine Workers of America v. Gibbs,
383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, even though
not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”).
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effectuating his departure order” and monetary damages for a violation of his Fifth
Amendment rights and “infliction of severe emotional distress.” Pet. 5.
Petitioner suggests the Court should “construe his pleadings liberally to present the
strongest arguments they suggest.” Pet’r’s Resp. to Mot. to Dismiss 4. The Court agrees
that it is required to “‘look behind the label’ and determine whether the filing is cognizable
under a different legal approach.” Hall v. Warden, FCC Coleman-USP I, 571 F. App’x
826, 828 (11th Cir. 2014) (per curiam) (quoting United States v. Jordan, 915 F.2d 622,
624–25 (11th Cir.1990)). Here, the Court concludes Petitioner’s filing is not cognizable
under any legal approach.
Preliminarily, the Court notes that Petitioner’s filing, while premature, is properly
construed as raising habeas claims. Habeas corpus is the “exclusive remedy” for a detainee
challenging “the fact or duration of his confinement and seek[ing] immediate or speedier
release.” Heck v. Humphrey, 512 U.S. 477, 481 (1994) (emphasis added) (citing Preiser
v. Rodriguez, 411 U.S. 475, 488-90 (1973)). Plaintiff’s filing challenges the “prolonged”
nature of his detention. Pet. 1. Further, although Petitioner does not explicitly request
release from detention, his demand that his detention be “end[ed] . . . by effectuating his
departure order” is the functional equivalent of a demand for speedier release. See Prather
v. Norman, 901 F.2d 915, 917 (11th Cir. 1990) (per curiam) (noting that request for an
order “prohibiting defendants from prohibiting Plaintiff from returning to his hometown in
which he was born” was “in essence asking for release” and properly “construed as a
Moreover, because all of Petitioner’s non-habeas claims would require a finding
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that his continuing detention has been unlawfully prolonged, they are not cognizable unless
he can prove the detention has been invalidated. See Heck, 512 U.S. at 486 (holding a §
1983 claim for damages related to an allegedly unconstitutional conviction or sentence was
not cognizable absent proof that the conviction or sentence had been invalidated);
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (extending Heck’s holding to a request for
equitable relief); Cohen v. Clemens, 321 F. App’x 739, 742 (10th Cir. 2009) (applying
Heck to the immigration detention context and holding the plaintiff’s Bivens action was
barred because he had not shown the unlawfulness of his detention); Daniel v. United
States, No. 4:14–cv–00443–AKK–TMP, 2015 WL 1334029, at *3 (N.D. Ala. Mar. 24,
2015) (dismissing alien detainee’s Bivens claim alleging mental injury from excessive and
lengthy detention because his continued detention had not been invalidated); Parris v.
United States, 45 F.3d 383, 385 (10th Cir. 1995) (applying Heck to a claim under the
FTCA). For the reasons stated above, Petitioner cannot show his continuing detention is
unlawful, and therefore, these claims are barred.
Finally, the Court notes that, even if it did not recommend dismissal of Petitioner’s
habeas claims or find his remaining claims barred, it would still recommend dismissal of
his civil rights and FTCA claims because they cannot be raised in the same action as a
habeas petition. See Kerlin v. Barnard, 742 F. App’x 488, 489 (11th Cir. 2018) (per
curiam) (noting that a habeas petition and § 1983 claim are “mutually exclusive” and
cannot be raised in the same action (citing Hutcherson v. Riley, 468 F.3d 750, 754 (11th
Cir. 2006) and McNabb v. Comm’r Ala. Dep’t of Corr., 727 F.3d 1334, 1344 (11th Cir.
2013))); Hundley v. Rectenwald, No. 1:CV–12–0790, 2012 WL 4103823, at *2 (M.D. Pa.
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May 15, 2012) (concluding that FTCA claim must be brought in a separate civil action
from a § 2241 habeas petition), recommendation adopted by 2012 WL 4103822 (M.D. Pa.
Sept. 18, 2012); Gates v. Grondolsky, No. 16-10793-MBB, 2016 WL 5388947, at *2 (D.
Mass. Aug. 2, 2016) (finding FTCA claim “not the proper subject of a § 2241 petition”);
Roney v. United States, No. 1:20-cv-381-MOC, (1:16-cr-39-MOC-WCM-2, 2021 WL
2518217, at *3 n.4 (W.D.N.C. June 18, 2021) (noting that Bivens claims, as the federal
equivalent of a § 1983 claim, must be brought in a separate lawsuit).
For the foregoing reasons, it is recommended that Respondents’ motion to dismiss
(ECF No. 7) be GRANTED and Petitioner’s application for habeas relief (ECF No. 1) be
DISMISSED WITHOUT PREJUDICE. Petitioner’s motion for permission to file a
surreply (ECF No. 13) is granted, and his request for a ruling (ECF No. 15) is denied as
moot. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to this Recommendation, or seek an extension of time to file objections, within fourteen
(14) days after being served with a copy hereof. Any objection should be no longer than
TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. The district judge shall make a
de novo determination of those portions of the Recommendation to which objection is
made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge’s findings or recommendations contained in a report
and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives
the right to challenge on appeal the district court’s order based on unobjected-to factual
Case 4:22-cv-00150-CDL-MSH Document 16 Filed 11/21/22 Page 10 of 10
and legal conclusions if the party was informed of the time period for objecting and the
consequences on appeal for failing to object. In the absence of a proper objection, however,
the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED and RECOMMENDED, this 21st day of November, 2022.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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