Doan v. Bergeron et al

Filing 198

Judge Indira Talwani: ORDER entered re 144 MOTION to Dismiss Count One of Doan's First Amended Complaint filed by Sean Gallagher. For the reasons set forth in the attached ORDER ON MOTION TO DISMISS PLAINTIFF'S HABEAS PETIT ION, Defendant Sean Gallagher's Motion to Dismiss Count One of Plaintiff's First Amended Complaint 144 is ALLOWED. Count I of Doan's First Amended Complaint 77 is DISMISSED. (MacDonald, Gail) Modified on 8/18/2016 to correct apostrophes (MacDonald, Gail).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KIM ANH THI DOAN,
Plaintiff-Petitioner,
v.
SUZANNE BERGERON, et al.,
Defendants-Respondents.

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Civil Action No. 15-cv-11725-IT

ORDER ON MOTION TO DISMISS PLAINTIFF’S HABEAS PETITION
August 18, 2016
TALWANI, D.J.
Kim Anh Thi Doan’s First Amended Complaint [#77] asserts that she is being unlawfully
detained in Immigration and Customs Enforcement (“ICE”) custody. First Am. Compl., Count I.
Presently before the court is Defendant Sean Gallagher’s Motion to Dismiss Count One of
Plaintiff’s First Amended Complaint [#144]. Because the Connecticut probate court committed
Doan for psychiatric treatment, Doan’s habeas petition is moot, and Gallagher’s motion is
ALLOWED.
I.

Facts as Alleged in the Amended Complaint and Procedural Background
The relevant facts as alleged in the First Amended Complaint [#77] and the early

procedural background are set forth in this court’s Memorandum & Preliminary Injunction
[#143].
On December 3, 2015, this court entered a Temporary Restraining Order (“TRO”) which
mandated that Doan be transferred to ICE’s Field Office in Hartford, Connecticut by the
following day for an evaluation by a physician from Connecticut Department of Mental Health

and Additional Services (“CDMHAS”) to determine if Doan met the criteria for admission to the
CDMHAS facility. Mem. & TRO 5 [#107]. The TRO directed counsel for Doan to provide
CDMHAS and the physician from CDMHAS with a release or releases allowing CDMHAS and
the physician to share the results of the evaluation of Doan, Doan’s treatment records, and any
anticipated step-down of treatment with counsel for Doan and with Respondent Sean Gallagher,
the ICE Field Office Director for the Boston Area. Id. The TRO also required Doan’s counsel to
secure CDMHAS’s agreement to commit Doan to its facility, to share Doan’s treatment records
with Gallagher and Doan’s counsel, and to not release Doan from the facility without advance
notice to Doan’s counsel and Gallagher. Id. at 5-6. The TRO directed counsel for Doan to secure
this agreement in advance of Doan’s transfer to CDMHAS and ordered Gallagher to promptly
inform the court in the event that he contended that a Physician’s Emergency Certificate has not
been provided to him or that CDMHAS had not agreed to commit Doan to its facility, to provide
medical records to him, or to provide advance notice to him before releasing Doan from its
facility. Id. The court directed that following the CDMHAS physician’s examination and
execution of a Physician’s Emergency Certificate declaring that Doan meets the criteria for
admission to the CDMHAS facility, and provided that Doan has secured CDMHAS’s agreement
as set forth above, ICE would assist in transporting Doan to the CDMHAS facility for civil
commitment. Id. at 6. The TRO mandated further: that Doan shall remain at the secure, locked
facility in Connecticut twenty-four hours per day and shall submit to the medical and therapeutic
treatment plan prescribed by physicians at the facility pending further order of the court; that
Doan shall remain under the supervision of ICE while at the CDMHAS facility; and that ICE
may monitor Doan’s location through the use of a GPS tracking device in its discretion and may

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monitor her treatment through review of her treatment records. Id.
On December 4, 2015, CDMHAS evaluated Doan and initially committed her by means
of a Physician’s Emergency Certificate. Pet’r’s Opp’n Mot. Dismiss Count One Ex. B [#162-1]
(under seal). Thereafter, CDMHAS instituted civil commitment proceedings in Connecticut
probate court.
On December 31, 2015, the court entered a Preliminary Injunction. Mem. & Prelim. Inj.
Order [#143]. The preliminary injunction mandated that Doan remain in a locked facility run by
CDMHAS for involuntary civil commitment and mental health treatment targeted towards
restoring Doan to mental competence pending resolution of the instant case or further order of
the court. Id. at 17. The injunction further mandated the same conditions as set forth in the TRO:
that Doan shall remain at the secure, locked facility in Connecticut twenty-four hours per day
and shall submit to the medical and therapeutic treatment plan prescribed by physicians at the
facility pending further order of the court; that Doan shall remain under the supervision of ICE
while at the CDMHAS facility; and that ICE may monitor Doan’s location through the use of a
GPS tracking device in its discretion and may monitor her treatment through review of her
treatment records. Id. Finally, the injunction ordered that Doan be returned to ICE’s custody
should CDMHAS refuse or fail to commit or continue to commit Doan to its facility, to share
Doan’s treatment records with Gallagher and Doan’s counsel, and to agree to not release Doan
from the facility without advance notice to Doan’s counsel and Gallagher. Id.1
On January 12, 2016, the Connecticut probate court issued an order involuntarily

Gallagher was entitled to appeal the court’s order to the First Circuit Court of Appeals, but he
did not. See 28 U.S.C. §1292(a)(1) (vesting in appeals court jurisdiction to review orders of a
district court granting an injunction).
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committing Doan for psychiatric treatment, finding “by clear and convincing evidence that Ms.
Doan is gravely disabled and has psychiatric and intellectual disabilities.” Pet’r’s Notice
Regarding Jan. 12, 2016 Order Conn. Probate Ct., Ex. A (probate court order) [#166-1]. The
probate court ordered that Doan “be committed to Capitol Region Mental Health Center or other
suitable hospital for the treatment of psychiatric disabilities until [she] is discharged in due
course of law.” Id.
The First Amended Complaint [#77] requests that Doan be ordered “released to
CDMHAS at the earliest possible opportunity on such terms and conditions as the Court deems
just.” First Am. Compl. Request Relief B.
II.

Discussion
“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and

‘controversies’.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting U.S.
Const., Art. III, § 2). This requires an “actual case or controversy . . . between the parties
throughout the course of litigation.” N.H. Motor Transp. Ass’n v. Rowe, 448 F.3d 66, 73 (1st
Cir. 2006).
Gallagher argues in his opening brief that Doan’s habeas petition became moot once she
was released from ICE custody on account of this court’s TRO and Preliminary Injunction. Doan
argues that Gallagher’s compliance with a preliminary injunction does not moot the habeas
petition, given ICE’s apparent willingness to take Doan back into custody should the preliminary
injunction be dissolved. See Pl.’s Mem. Opp. Mot. Dismiss Count I 3 [#162] (under seal). Doan
may be correct on this point, see, e.g., Magill v. Lynch, 560 F.2d 22, 25 n.2 (1st Cir. 1977) (in
political retaliation case, injunction, as an order “standing between the plaintiffs and punishment
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. . . has a continuing effect and saves the case from mootness”), but the court does not need to
reach that question.
The habeas petition became moot once Doan was involuntarily committed. At that point,
Doan was no longer in ICE’s custody as required by 28 U.S.C. § 2241. Before the involuntary
commitment order, Doan was in the custody of CDMHAS only pursuant to this court’s
Preliminary Injunction [#143]. Notably, that injunction was preliminary and conditional, as it
specified that Doan should be returned to the custody of ICE “should CDMHAS refuse or fail to
commit . . . Doan to its facility.” Mem. & Prelim. Inj. Order 17 [#143]. Now, under the
involuntary commitment order, Doan is “committed to Capitol Region Mental Health Center or
other suitable hospital for the treatment of psychiatric disabilities until [she] is discharged in due
course of law.” Pet’r’s Notice Regarding Jan. 12, 2016 Order Conn. Probate Ct., Ex. A (probate
court order) [#166-1]. Doan is therefore in the custody of the State of Connecticut and not the
United States. For that reason, this court has no jurisdiction to grant Doan the writ of habeas
corpus. See 28 U.S.C. § 2241(c)(1) (stating that the writ of habeas corpus “shall not extend to a
prisoner” unless he or she is “in custody under or by color of the authority of the United States”
or falls into other categories that do not apply here).
Doan contends that her habeas petition is not moot. First, she argues that her release to
CDMHAS did not provide her with all of the relief she was requesting. She argues that she has
asked for and not received a bond hearing in this court, to be followed by a final order and
judgment releasing her on conditions for the duration of her immigration proceedings. Indeed, to
establish mootness, “the party raising it must show that the court cannot grant any ‘effectual
relief whatever’ to its opponent.” N.H. Motor, 448 F.3d at 73 (quoting Church of Scientology of
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Cal. v. United States, 506 U.S. 9, 12 (1992)). Doan asked, however, that she be “released to
CDMHAS at the earliest possible opportunity on such terms and conditions as the Court deems
just.” Am. Compl. Request for Relief B-C. The court has granted her this relief. Doan also asks
for “an injunction prohibiting Defendants from further violation of [her] rights,” but such relief is
not a remedy for the habeas portion of this case. Id. Request for Relief D. Doan has received the
habeas relief that she has requested.
Next, she argues that ICE has not suggested that it would refrain from taking Doan back
to detention if the preliminary injunction were dissolved. Recent events, Doan argues, in fact
suggest that ICE would take her into custody should that occur. See Pl.’s Mem. Opp. Mot.
Dismiss Count I 12-13 [#162] (under seal) (noting that ICE was prepared to take Doan back into
custody should the probate court deny the application for Doan’s involuntary commitment). This
may have been true before Doan was involuntarily committed, but is now no longer true.
Gallagher and ICE represent to this court that their interest is in “ensuring that CDMHAS
continues her involuntary civil commitment,” and would only redetain her if Doan is restored to
mental competency to “ensure her appearance at her removal proceedings to effectuate her
removal from the U.S.” Def.’s Reply 5 [#165]. Taking this representation as true, it is “not
imminent and inevitable” that ICE would immediately take Doan into custody again. See
Gonzalez-Fuentes v. Molina, 607 F.3d 864, 874 n.8 (1st Cir. 2010) (stating that a “future
restraint on liberty may provide a basis for habeas jurisdiction [only] if it is imminent and
inevitable” and that custody is not imminent and inevitable if it “depend[s] on ‘contingencies’
which may ‘render the entire controversy academic.’” (quoting Fernos-Lopez v. Figarella Lopez,
929 F.2d 20, 24 (1st Cir. 1991)).
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Even if ICE were to redetain Doan, she would be entitled to protections against any
further unreasonably prolonged detention arising from the absence of medical treatment geared
towards restoring competency. If she were detained pursuant to a final order of removal under 8
U.S.C. § 1231, she could seek relief under Zadvydas v. Davis, 533 U.S. 678 (2001). If she were
detained pursuant to 8 U.S.C. § 1226(c), as previously, she would be entitled to an individualized
bond hearing under Reid v. Donelan, 819 F.3d 486, 496 (1st Cir. 2016) (holding that 8 U.S.C.
§ 1226(c), statute authorizing mandatory detention of certain criminally convicted aliens, is
subject to implicit reasonableness limitation). Doan’s continued prolonged detention is not
inevitable, and in the absence of her custody with ICE, the court cannot maintain jurisdiction
over Doan’s habeas claim.
III.

Conclusion
For the foregoing reasons, Defendant Sean Gallagher’s Motion to Dismiss Count One of

Plaintiff’s First Amended Complaint [#144] is ALLOWED. Count I of Doan’s First Amended
Complaint [#77] is DISMISSED.
IT IS SO ORDERED.
August 18, 2016

/s/ Indira Talwani
United States District Judge

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