CASTRO GOMEZ v. ANDERSON et al

Filing 18

OPINION. Signed by Judge Claire C. Cecchi on 1/6/2021. (ams, )

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**NOT FOR PUBLICATION**
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 20-7313 (CCC)

JOSE C. G.,
Petitioner,
v.

OPINION

WILLIAM J. ANDERSON, et al.,
Respondents.

CECCHI, District Judge.
Presently before the Court is Petitioner Jose C. G.’s (“Petitioner”) motion seeking a
temporary restraining order in this habeas matter. ECF No. 5. The Government filed opposition
to the motion (ECF No. 10), to which Petitioner replied (ECF No. 14). Also before the Court is
Petitioner’s unopposed motion to seal his medical records. ECF No. 15. For the reasons set forth
below, Petitioner’s motion seeking a temporary restraining order is denied without prejudice, and
Petitioner’s motion to seal is granted.
I. BACKGROUND
Petitioner is a native and citizen of El Salvador in his late twenties who most recently
illegally entered the United States without inspection or admission at some point in 2016. ECF No.
10-7 at 1; ECF No. 3-1 at 7. Petitioner previously spent several years in the United States with a
family friend, but returned to El Salvador in 2010. ECF No. 3-1 at 1–6. Both in the United States
and in El Salvador, Petitioner was involved in gang activity, and he received at least one juvenile
delinquency adjudication during his first stay in the United States. Id.; ECF No. 10-7 at 2–3.

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Following his return to the United States, Petitioner was arrested in 2018 on drug
possession charges and again in 2019 on robbery charges. ECF No. 10-7 at 3. While in jail on the
robbery charge, Petitioner was served with a notice to appear in February 2019 and taken into
immigration custody. ECF No. 10-8. Petitioner was charged with being removable due to his
illegal entry into the United States, and is thus detained pursuant to the Government’s discretionary
detention pursuant to 8 U.S.C. § 1226(a). Id. An immigration judge denied Petitioner release on
bond in October 2019, finding that Petitioner had failed to show that he was not a danger to the
community. ECF No. 10-9 at 3. Petitioner appealed, but on February 14, 2020, the Board of
Immigration Appeals (“BIA”) dismissed his bond appeal and affirmed the denial of release on
bond. ECF No. 12-12.
In September 2019, Petitioner’s applications for relief from removal were denied and he
was ordered removed to El Salvador. ECF No. 10 at 13. Petitioner appealed to the Board of
Immigration appeals (see id.), but it appears from publicly available immigration records that his
appeal was dismissed by the BIA in July 2020. Petitioner is accordingly now detained pursuant to
a final order of removal. See 8 U.S.C. § 1231(a). 1
Upon his transfer to immigration detention in February 2019, Petitioner received a medical
intake screening from a nurse at the Essex County Correctional Facility (“ECCF”). ECF No. 11-1
at 3. During that screening, Petitioner noted a history of alcohol abuse and that he had previously
been prescribed various medications. Id. Following his initial screening, Petitioner was seen by

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The parties have not specifically provided the Court with documentation regarding Petitioner’s
appeal, nor have they informed the Court whether Petitioner has filed a petition for review with
the Third Circuit. Because the issues addressed in this opinion are applicable regardless of whether
Petitioner is detained pursuant to Section 1231(a) or whether he has reverted to pre-final order
status through a petition for review and stay of removal, the Court need not make a final
determination on the applicable detention status at this time.
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a doctor on February 28, 2019. Id. at 11–13. As part of this visit, the doctor reviewed Petitioner’s
previously prescribed medications, noted that Petitioner was “doing well at present” with these
medications, and ordered them continued. Id. at 13–14. Petitioner was also provided antibacterial
ointment for some injuries which were in the process of healing. Id. at 14–15.
In June 2019, Petitioner reported having dental pain. Id. at 15. Petitioner was initially
scheduled for a dental appointment on June 18, but a security issue delayed his appointment to
July 3, 2019. Id. at 17. Following that dental appointment, Petitioner was referred for tooth
cleaning and to a dental surgeon for the extraction of several badly damaged teeth. Id. at 18–20.
Petitioner was also prescribed pain medication and antibiotics for his teeth. Id. On July 31, one of
the damaged teeth was extracted, but Petitioner refused to have the remaining teeth removed. Id.
at 21–23. On August 1, 2019, Petitioner was provided with a dental prophylaxis to aid with his
dental issues. Id. at 23–24. On September 28, 2019, Petitioner was seen by a doctor, although the
nature of that visit is unclear from Petitioner’s records. Id. at 24.
In mid-November 2019, Petitioner reported difficulty falling asleep and was seen by a
nurse and referred for further mental health treatment. Id. at 27. He was seen by a mental health
counselor on November 18, and was then scheduled to see a psychiatrist as he connected his
sleeping difficulties with his having witnessed “murders in his native country.” Id. at 28. The
following day, he was seen by a jail psychiatrist, who diagnosed Petitioner with adjustment
disorder with anxiety and prescribed him medication to help with his anxiety and sleep issues. Id.
at 30–31.

On December 10, 2019, Petitioner received a follow-up appointment with the

psychiatrist, at which time Petitioner reported “some benefit” from his new medication, and his
medication was adjusted. Id. at 35. He received another follow-up appointment on January 7,
2020, during which he reported further benefits from his medication. Id. at 36–37. Following a

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fight and short stint in a special housing unit after that fight, Petitioner was seen on January 20 by
a mental health counselor and reported that his medication was “working” and that he did not wish
to see the psychiatrist for further treatment at that time. Id. at 42.
On January 29, 2020, Petitioner reported flu-like symptoms, and was treated with pain and
cough medication. Id. at 43–44. On February 4, Petitioner received another psychiatric follow
up, but once again reported that the medication was working and that he had no further anxiety or
insomnia. Id. at 45. On February 7, Petitioner requested an appointment for vision issues. Id. at
49. Petitioner requested that he be permitted to have his plastic framed glasses sent from home,
and this request was approved. Id. at 51. Petitioner was also supplied with forms to request new
glasses should he need them. Id. On February 17, Petitioner reported pain in one of his eyes and
was provided with pain medication and warm compresses. Id. at 53–55. On February 21, Petitioner
received another follow-up visit with the psychiatrist, and his medications were continued. Id. at
56–57.

On February 26, Petitioner had an annual checkup, during which he had “no medical

complaints” but was determined to be obese based on weight gain in the previous year of detention.
Id. at 59–60. Petitioner was advised to engage in exercise, and given various tests, which showed
no issues of note. Id. at 60–72. Petitioner thereafter had dental and mental health checkups on
March 11 and 17, respectively. Id. at 72–75. As petitioner reported that his mental health
medications were not working as well as before, his medications were adjusted. Id. at 75–77.
Petitioner’s medications were adjusted again to aid with sleeping issues in May 2020. Id. at 91–
93. Petitioner’s sleep issues had resolved by the time he received another follow-up in June 2020.
Id. at 99–100.
Between March 24 and April 26, 2020 Petitioner appears to have contracted COVID-19.
Petitioner was given flu medication and had his vital signs monitored daily. Id. at 78–90.

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Petitioner’s vital signs were again monitored regularly between May 14 and May 28 during which
time Petitioner was in medical isolation. Id. at 94–98. During this time, he was given a COVID19 antibody test on May 14, and received results indicating he had likely contracted and was in the
process of developing immunity to COVID-19. Id. at 97. Petitioner was released from isolation
on May 28 as he had been without significant symptoms consistently during his isolation period.
Id. at 98. On June 17, Petitioner reported acid reflux issues, and was provided with antacid
medication and a referral for a doctor visit. Id. at 101. Petitioner was seen by a doctor and provided
further antacid medication, and at his request was also given a medical slip providing for placement
in a bottom bunk due to pain resulting from an old leg injury. Id. at 103–04. On June 22, 2020,
Petitioner received another mental-health follow-up, and was noted to have remained “relatively
stable” and his medications were continued. Id. at 105-06.
In support of his petition, Petitioner has provided reports from proposed experts including
Dr. Johanna Fink. Dr. Fink opines, based on her review of Petitioner’s records that Petitioner
suffers from PTSD, anxiety, obesity, and a history of substance abuse, all of which place him at
“a significantly increased risk that he will suffer serious or fatal COVID-19 related complications.”
ECF No. 3-8 at 3. Dr. Fink therefore recommends Petitioner be “released from custody as soon
as possible.” Id.
In response, the Government has provided a declaration from Dr. Carl Postighone. ECF
No. 11. Having reviewed Petitioner’s records and the reports provided by Petitioner’s proposed
experts, Dr. Postighone opined that Petitioner is “an individual at no higher risk th[a]n the general
population,” noting that petitioner’s records indicated no signs of alcohol withdrawal, that no
evidence had been provided to indicate medical issues arising out of drug abuse, and that
Petitioner’s mental health issues were being addressed through “excellent care which would far

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exceed” what Petitioner could expect in the community upon release including monthly followups from the jail’s psychiatrist. Id. at 5–6. Although Dr. Postighone recognized Petitioner to be
obese, he further opined that obesity is not in and of itself determinative of COVID-19 risk, and
Petitioner had presented no sign of any obesity co-morbidity which would lead to him being at
higher risk of COVID-19 complications, especially in light of his having apparently previously
contracted and overcome the virus in May 2020. Id. at 6-7.
II. DISCUSSION
A. Legal Standard
Injunctive relief is an “extraordinary remedy, which should be granted only in limited
circumstances.” Novartis Consumer Health v. Johnson & Johnson – Merck Consumer Pharms.
Co., 290 F.3d 578, 586 (3d Cir. 2002) (citation and quotation marks omitted). In order to establish
that he is entitled to injunctive relief in the form of a temporary restraining order, 2 Plaintiff must
demonstrate that ‘(1) he is likely to succeed on the merits; (2) denial
will result in irreparable harm; (3) granting the injunction will not
result in irreparable harm to the defendants; and (4) granting the
injunction is in the public interest.’ Maldonado v. Houston, 157 F.3d
179, 184 (3d Cir. 1998) (as to a preliminary injunction); see also
Ballas v. Tedesco, 41 F. Supp. 2d 531, 537 (D.N.J. 1999) (as to
temporary restraining order). A plaintiff must establish that all four

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The Third Circuit has recently reiterated that the relief available via a temporary restraining order
is “ordinarily [limited to] temporarily preserving the status quo,” and that injunctive relief going
beyond maintaining the status quo, such as the outright release of a detained alien, must instead
normally be obtained through a motion seeking a preliminary injunction. Hope v. Warden York
Cnty. Prison, 956 F.3d 156, 160–62 (3d Cir. 2020). The standard that applies to the grant of a
temporary restraining order is essentially identical to that which is applied when a party seeks a
preliminary injunction, other than the requirement that a preliminary injunction can only be issued
after an adversary has been provided notice and an opportunity to be heard. This Court’s reasoning
would be equally applicable to the extent that Petitioner’s motion is in effect, if not in name, a
motion seeking a preliminary injunction. See Wincup Holdings, Inc. v. Hernandez, No. 04-1330,
2004 WL 953400, at *2 (E.D. Pa. 2004) (“the standard for determining the applicability of a
temporary restraining order is identical to the test for determining the applicability of a preliminary
injunction”); see also Ward, 2012 WL 2341499 at *1.
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factors favor preliminary relief. Opticians Ass’n of America v.
Independent Opticians of America, 920 F.2d 187 (3d Cir. 1990).
Ward v. Aviles, No. 11-6252, 2012 WL 2341499, at *1 (D.N.J. June 18, 2012). Plaintiff, as the
party seeking a temporary restraining order, must first demonstrate a “reasonable probability of
eventual success in the litigation.” Bennington Foods, LLC v. St. Croix Renaissance Group, LLP,
528 F.3d 176, 179 (3d Cir. 2008) (citation and quotation marks omitted). To satisfy this
requirement, “[i]t is not necessary that the moving party’s right to a final decision after trial be
wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case
showing a reasonable probability that it will prevail on the merits.” Ward, 2012 WL 2341499 at
*2 (quoting Oburn v. Sapp, 521 F.2d 142, 148 (3d Cir. 1975)).
To the extent that Petitioner’s requested relief is immediate release from detention, the
Third Circuit has historically authorized district courts reviewing habeas petitions by convicted
prisoners to enter an order granting bail pending the resolution of the petitioner’s habeas claims
under certain extraordinary circumstances. See, e.g., Lucas v. Hadden, 790 F.2d 365, 367–68 (3d
Cir. 1986). As bail pending a decision on a habeas petition is an extraordinary form of relief, it
will only be available where the petitioner raises “substantial constitutional claims upon which he
has a high probability of success, and . . . when extraordinary or exceptional circumstances exist
which make the grant of bail necessary to make the habeas remedy effective.” In re Souels, 688 F.
App’x 134, 135 (3d Cir. 2017) (quoting Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992).
“[V]ery few cases have presented extraordinary circumstances, and those that have seem to be
limited to situations involving poor health or the impending completion of the prisoner’s
sentence.” Id. (quoting Landano, 970 F.2d at 1239).

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B. Analysis
In his motion, Petitioner argues that he should be released from immigration detention
because he has a high likelihood of success on his conditions of confinement claims – specifically
his claims that he has been subjected to punitive conditions of confinement without a supporting
conviction and that ECCF staff have inadequately responded to his medical needs in light of his
medical history and the threat of COVID-19.
The Third Circuit recently reiterated the standards applicable to such claims in its decision
in Hope v. Warden York County Prison, 972 F.3d 310 (3d Cir. 2020). As the Third Circuit
explained, in evaluating whether an alien’s conditions of confinement amount to undue
punishment, “[t]he touchstone for the constitutionality of detention is whether conditions of
confinement are meant to punish.” Id. at 325–27. In the absence of a showing that the detention
facility’s staff acted with an express intent to punish the petitioner, determining whether conditions
amount to unconstitutional punishment requires that the district court “consider the totality of the
circumstances of confinement, including any genuine privations or hardship over an extended
period of time, and whether conditions are (1) rationally related to their legitimate purpose or (2)
excessive in relation to that purpose.” Id. In reviewing the conditions and actions of detention
officials and their relation to the Government’s legitimate interest in detaining aliens pending the
conclusion of removal proceedings, reviewing courts “must acknowledge that practical
considerations of detention justify limitations on many privileges and rights,” and “ordinarily
defer” to the expertise of prison officials in responding to COVID-19 unless there is “substantial
evidence in the record that the officials have exaggerated their response” to the situation. Id.
Given the Government’s strong interest in detaining aliens subject to removal proceedings
and the deference due to the expertise of detention officials, the Third Circuit in Hope rejected the

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argument that detention during the COVID-19 pandemic would amount to unconstitutional
punishment where the Government had taken concrete steps aimed at mitigating the threat posed
to detainees, notwithstanding serious pre-existing health conditions which may predispose those
detainees to serious complications should they contract the virus. Id. 327-29.
Turning to deliberate indifference medical claims, the Third Circuit reaffirmed that “[t]o
establish deliberate indifference, [the petitioner] must show the Government knew of and
disregarded an excessive risk to their health and safety.” Id. at 329 (citing Nicini v. Morra, 212
F.3d 798, 811 (3d Cir. 2000). The Court of Appeals further held that “[t]he context of the
Government’s conduct is essential to determine whether it shows the requisite deliberate
indifference,” and that, in evaluating this context, a reviewing court must defer to the expertise of
both medical officials and jail administrators and not assume a constitutional defect where concrete
action has been taken in response to the COVID-19 pandemic as “rules of due process are not
subject to mechanical application in unfamiliar territory.” Id. at 329–30 (quoting Cty. of
Sacramento v. Lewis, 523 U.S. 833, 850 (1998)). Thus, where the Government has taken concrete
steps towards ameliorating the medical effects of COVID-19 on a detention facility, a detainee
will fall “well short of establishing that the Government was deliberately indifferent toward [his]
medical needs” in light of the virus even though the Government cannot entirely “eliminate all
risk” of contracting COVID, notwithstanding even serious pre-existing medical conditions which
may exacerbate a COVID-19 infection should one occur. Id. at 330–31.
In this matter, it is clear in light of Hope that the Government has a clear and legitimate
interest in detaining Petitioner, an alien who has both been ordered removed and has previously
been found to be a danger to the community by an immigration judge. To show a likelihood of
success on the merits of his punitive conditions claim, Petitioner must accordingly show either that

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ECCF and its staff acted with an express intent to punish him or that his conditions of confinement
are arbitrary, purposeless, or excessive and therefore unreasonable in light of that interest. Hope,
972 F.3d at 325–29; see also Stevenson v. Carroll, 495 F.3d 62, 67–68 (3d Cir. 2007); Daniel R.S. v. Anderson, No. 20-3175, 2020 WL 2301445, at *5–7 (D.N.J. May 8, 2020). As Petitioner has
not alleged an express intent to punish him on the part of Respondents, he must therefore present
facts indicating that his current conditions are arbitrary, purposeless or excessive in light of that
clear interest in his detention.
Having reviewed the actions taken by ECCF to mitigate and alleviate the threat posed to
its detainees by COVID-19, this Court finds that Petitioner has failed to show that his conditions
of confinement are arbitrary, purposeless, excessive, or unreasonable. This Court so concludes as
it is clear that ECCF has taken considerable and substantial steps to mitigate the virus’s impact
upon its detainee population. Such steps include spacing out detainees as much as possible to
provide for social distancing, intake medical screenings for all incoming detainees, the provision
of on-site nurses at all times and doctors who are on site sixteen hours a day and otherwise on call
at all times, increased nurse visits to housing units, the suspension or limitation of entry into the
facility by outside vendors or volunteers, health screenings of employees and others permitted into
the facility, the provision of masks and protective equipment to staff and the provision of masks
to detainees, the provision of unlimited soap and water access to detainees, increased cleaning and
sterilization of the entire facility including housing units, and the provision of disinfectants to staff
for use in between full cleanings. ECF No. 10-5 at 1–18. ECCF has also developed specific
protocols for the treatment of those who are or may be infected with COVID-19 – those with mild
symptoms are placed in quarantine in single occupancy cells and treated in-house with daily
temperature monitoring, those with more severe symptoms are instead transferred to a hospital for

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treatment, and those exposed to known cases but who are asymptomatic are cohorted in separate
units for fourteen days. Id. at 12–14. ECCF has also used antibody testing to make determinations
as to who should be quarantined or placed in a cohorted unit among those who have not presented
symptoms of COVID-19. Id. at 17–18; ECF No. 10-6. Those such as Petitioner who test positive
for antibodies which indicate they are recovering from and developing immunity to the virus are
placed in quarantine. ECF No. 10-6 at 5–6. Taken together, these concrete actions to mitigate the
threat of COVID-19 and treat those infected with the virus clearly show that the conditions under
which Petitioner is detained are not arbitrary, excessive, or purposeless, but are instead rationally
related to the Government’s interest in Petitioner. Petitioner has therefore failed to show that he
is likely to succeed on the merits of his conditions of confinement claim. Hope, 972 F.3d at 325–
29; Daniel R.S., 2020 WL 2301445 at *7.
In light of the significant medical treatment and monitoring Petitioner has received while
detained, as well as the COVID-19 protocols outlined above, Petitioner has likewise failed to show
a reasonable likelihood of success on the merits to the extent he claims that ECCF has been
deliberately indifferent to his medical needs. Although this Court accepts the threat COVID-19
poses, and that Petitioner does, at the very least, have ongoing medical and mental health needs,
nothing Petitioner has provided indicates that ECCF and its staff have been deliberately indifferent
to those medical issues. Instead, the record indicates that the facility has been attentive to
Petitioner’s needs – Petitioner, upon reporting anxiety and difficulty sleeping was provided
medication and monitored monthly by a psychiatrist, he also received repeated dental care,
medication for pain or flu symptoms, and was seen by medical staff when he sought out treatment.
Medical staff have likewise provided Petitioner with regular monitoring, routine checkups, and
diagnostic testing while he has been detained. Combined with the numerous actions aimed at

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alleviating the threat of COVID-19 discussed above, Petitioner has failed to present facts showing
deliberate indifference on the part of medical staff, and it therefore does not appear that Petitioner
will be able to show that staff recklessly disregarded Petitioner’s health or the risks posed by
COVID-19. Petitioner has therefore failed to show a likelihood of success on the merits to the
extent he asserts that the staff have been indifferent to his medical needs. Hope, 972 F.3d at 330–
31; Daniel R.S., 2020 WL 2301445 at *7.
As Petitioner has failed to show a likelihood of success on the merits as to his claims, he is
not entitled to preliminary injunctive relief at this time and his motion seeking a temporary
restraining order is therefore denied. Ward, 2012 WL 2341499 at *1. 3 Petitioner’s motion to seal
his medical records (ECF No. 15) will be granted as Petitioner’s motion is unopposed, this matter
contains numerous sensitive medical records, Petitioner has a strong interest in the confidentiality
of those records, and given the general access restrictions applicable to all immigration habeas
matters.

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As Petitioner has failed to meet his burden with respect to the likelihood of success on the merits,
the Court need not address the remaining factors. See Reilly v. City of Harrisburg, 858 F.3d 173,
179 (3d Cir. 2017); Tate v. Schember, 809 F. App’x 64, 65–66 (3d Cir. 2020) (“[W]e will affirm
because we agree that [plaintiff] has not shown a likelihood of success on the merits for the reasons
that the District Court thoroughly explained.”); 431 E. Palisade Ave. Real Estate, LLC v. City of
Englewood, 977 F.3d 277, 279 (3d Cir. 2020) (reversing grant of preliminary injunction because
plaintiff “has not shown a likelihood of success on the merits”); In re Arthur Treacher’s
Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982) (“Thus, a failure by the moving party to
satisfy these prerequisites: that is, a failure to show a likelihood of success or a failure to
demonstrate irreparable injury, must necessarily result in the denial of a preliminary injunction.”);
see also Emerson O. C.-S. v. Anderson, No. 20-3774, 2020 WL 1933992, at *7 (D.N.J. Apr. 22,
2020) (declining to address remaining preliminary injunction factors after determining that movant
had not demonstrated a likelihood of success on the merits of his claim).
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III. CONCLUSION
For the reasons expressed above, Petitioner’s motion seeking a temporary restraining order
(ECF No. 5) is DENIED WITHOUT PREJUDICE, and his motion to seal his medical records
(ECF No. 15) is GRANTED. An appropriate order accompanies this Opinion.

DATE: January 6, 2021

CLAIRE C. CECCHI, U.S.D.J.

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