Erumevwa v. Kelly

Filing 13

MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Petition for Writ of Habeas Corpus, denying 6 MOTION for Summary Judgment, granting 8 Amended MOTION to Dismiss. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION OLUWASEYI ERUMEVWA, Register No. 061169579, Petitioner, v. JOHN KELLY, Director of Homeland Security, et al., Respondents. § § § § § § § § § § § December 06, 2017 David J. Bradley, Clerk CIVIL ACTION NO. H-17-1937 MEMORANDUM OPINION AND ORDER Department of (A# 061169579) Homeland Security detainee Oluwaseyi Erumevwa ("Petitioner") has filed a Habeas Corpus Pursuant to 28 U.S.C. Entry No. 1) § 2241 Petition for Writ of ("Petition") (Docket and a Motion for Summary of Judgment for Writ of Habeas Corpus Pursuant to 28 U.S. C. (Docket Entry No. 6) § 2241 ("Petitioner's MSJ") to challenge his continued detention and to complain of inadequate medical care. Respondents ("Respondents") have filed an Amended Motion to Dismiss and Response to Motion for Summary Judgment ("Respondents' Amended Motion to Dismiss") (Docket Entry No. 8). applicable After considering the motions and responses and the law, Petitioner's MSJ will be denied, Respondents' Amended Motion to Dismiss will be granted, and this case will be dismissed for the reasons explained below. Procedural Posture I. In response to Petitioner's MSJ, Respondents did not file a cross-motion for summary judgment. Instead, they filed a Motion to Dismiss and Response to Motion for Summary Judgment in which they submitted summary judgment evidence. Although the court normally cannot consider affidavit evidence when considering a Rule 12 (b) ( 6) motion, because Petitioner moved for summary judgment, the court can consider Respondents' evidence in response to Petitioner's MSJ. See Fed. R. Civ. P. 56(c) (1). II. Petitioner Oluwaseyi Background 1 Erumevwa is a native and citizen of Nigeria who was admitted to the United States as a lawful permanent resident in 2010. 2 fraud and forgery. Erumevwa was convicted in Texas state court of 3 While incarcerated in 2016, the United States Citizenship and Immigration Services ( "USCIS") served Erumevwa with a warrant for his arrest. Upon his release from the Texas Department of Criminal Justice, Erumevwa was taken into custody by USCIS on November 17, 2016. 4 served notice that he On November 18, 2016, Erumevwa was was 1 See Sworn Declaration of Declaration"), Exhibit No. 1 to Dismiss, Docket Entry No. 8-2. subject removal under Rodney T. Johnson ("Johnson Respondents' Amended Motion to 2 Petition, Docket Entry No. 1, p. 2. 3 Id. at 3. 4 Petition, Docket Entry No. 1, p. 1. -2- to § § 237(a) (2) (A) (ii) of the Immigration and Nationality Act, 8 U.S.C. 1226 (c) . On June 23, 2017, Erumevwa filed his Petition. Erumevwa's application for withholding of removal and relief under the Convention Against Torture was denied on July 11, 2017. On August 1, 2017, the Immigration Judge issued an order of removal. On August 28, 2017, Erumevwa appealed the Immigration Judge's removal decision to the Board of Immigration Appeals. 5 is currently pending. Erumevwa remains in the custody of the United States Department of Homeland Security, Customs Enforcement ("ICE") at the The appeal Houston Immigration and Contract Detention Facility awaiting his removal from the United States. 6 Erumevwa suffers from two hernias and complained of pain while in detention. 7 According to Respondents, "[t]he medical treatment of Erumevwa's hernias is ongoing." 8 According to the Immigration Health Services Corps: 5 Exhibit 3 to Petitioner's June 30, 2017, letter, Docket Entry No. 9-2. 6 See Online Detainee Locator System, U.S. Immigration and Customs Enforcement, Department of Homeland Security, at 7 See also ICE Immigration Special Correspondence, Exhibit 2 to Petitioner's June 30, 2017, letter, Docket Entry No. 9-1, pp. 3, 5, 6, 8. Petitioner has submitted documents allegedly comprising part of his medical records (Docket Entry Nos. 9, 12). Although the documents are not submitted in admissible form, because Petitioner is a pro se litigant the court has considered them. Nothing in the documents contradicts or raises a fact issue as to Respondents' summary judgment evidence. 8 Johnson Declaration, Exhibit No. 1 to Respondents' Amended Motion to Dismiss, Docket Entry No. 8-2, p. 3. -3- An initial referral for hernia repair was submitted on June 20, 2017 for approval and was rejected by Dr. Irizarry, the clinical director. Today, an additional referral for hernia repair has been resubmitted [on September 11, 2017] after consulting with Dr. Peredo-Berger, the currently acting clinical director for Houston IHSC. Patient will be informed once a scheduled appointment is confirmed with the outside provider. 9 Respondent argues that Petitioner's § 2241 claim is premature and moves to dismiss for failure to state a claim upon which relief may be granted. Petitioner has moved for summary judgment on his Writ of Habeas Corpus and on his medical care claim. III. A. Standards of Review Motion to Dismiss Under the Federal Rules of Civil Procedure a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8 (a) (2). A plaintiff's pleading must provide the grounds of his entitlement to relief, and "a formulaic recitation of the elements of a cause of action will not do. S. Ct. 1955, 1965 II (2007). Bell Atlantic Corp. v. Twombly, "' [N) aked assertion [s] ' 127 devoid of 'further factual enhancement'" or "[t]hreadbare recitals of the elements of a cause of action, statements, do not suffice." 1937, 1949 (2009). supported by See Ashcroft v. mere conclusory Iqbal, 129 S. Ct. "[C]onclusory allegations or legal conclusions -4- masquerading as factual conclusions will not suffice to prevent a motion to dismiss." F.2d 278, 284 Fernandez-Montes v. Allied Pilots Ass'n, 987 (5th Cir. 1993). Instead, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." A Rule 12(b) (6) pleadings and is Iqbal, 129 S. Ct. at 1949. motion tests the formal sufficiency of the "appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom. Cloud v. United States, 122 S. Ct. 2665 (2002). To defeat a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." 127 S. Ct. at 1974. Twombly, The court does not "strain to find inferences favorable to the plaintiffs" or "accept conclusory allegations, unwarranted deductions, or legal conclusions." Southland Securities Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004) (internal quotation marks and citations omitted). "[C]ourts are required to dismiss, pursuant to Federal Rule of Civil Procedure 12(b) (6), claims based on invalid legal theories, even though they may be otherwise well-pleaded." Casualty Insurance Co. 2009) Flynn v. State Farm Fire and (Texas), 605 F. Supp. 2d 811, 820 (W.D. Tex. (citing Neitzke v. Williams, 109 S. Ct. 1827, 1832 (1989)). -5- B. Motion for Summary Judgment Summary judgment is appropriate if the movant establishes that there is no genuine dispute about any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "The movant accomplishes this by informing the court of the basis for its motion, and by identifying portions of the record which highlight the absence of genuine factual issues." Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (citing Fed. R. Civ. P. 56(c)). Topalian v. "In order to avoid summary judgment, the nonmovant must identify specific facts within the record that demonstrate the existence of a genuine issue of material fact." CQ, Inc. v. TXU Mining Company, L.P., 565 F.3d 268, 273 (5th Cir. 2009). In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, credibility determinations Sanderson Plumbing Products, or weigh the and it may not make Reeves evidence." Inc., 120 S. Ct. 2097, 2110 v. (2000). The court resolves factual controversies in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Liquid Air Corp., 37 F. 3d 1069, 1075 (5th Cir. 1994). Little v. "Unsubstan- tiated assertions are not competent summary judgment evidence." Hugh Symons Group, plc v. Motorola, Cir. 2002) (1986)). Inc., 292 F.3d 466, 468 (5th (citing Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 And "[m] ere conclusory allegations are not competent -6- summary judgment evidence." Id. (citing Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996)). The petitioner represents himself in this Courts case. construe pleadings filed by pro se litigants under a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 92 S. Ct. 594, 596 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document construed [.] '") filed pro ( citation omitted) . se is 'to be liberally Nevertheless, "pro se parties must still brief the issues and reasonably comply with procedural rules] 1995). " [federal Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. The Fifth Circuit has held that "[t]he notice afforded by the Rules of Civil Procedure and the local rules" is "sufficient" to advise a pro se party of his burden in opposing a judgment motion. summary See Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992). IV. A. Analysis Motion to Dismiss Writ of Habeas Corpus Petitioner challenges the reasonableness of his continued detention pursuant to Zadvydas v. Davis, 121 S. Ct. 2491 The Due Process United States, Clause "applies including aliens, to all within the whether their presence here is lawful, unlawful, temporary, or permanent." at 2500. 'persons' (2001). Zadvydas, 121 s. Ct. Erumevwa's detention is governed by 8 U.S.C. § 1231, which provides that the Attorney General "shall remove the alien -7- from the United States within a period of 90 days" period"). 8 U.S.C. § 1231(a) (1) (A). alien shall be detained. Id. § (the "removal During the removal period the 1231(a) (2). The removal period for Petitioner's case begins on the date the order of removal becomes administratively final. Id. § 1231(a) (1) (B) (I). An alien may be detained beyond the 90-day removal period in some circumstances. Id. 1231(a) (6). § The Supreme Court has held that § 1231 permits detention beyond the 90-day removal period for a time reasonably necessary to accomplish removal from the United States. 121 S. Ct. at 2505. foreseeable, statute." Zadvydas, But "once removal is no longer reasonably continued Id. at 2503. detention is no longer authorized Detention for up to six months after the removal order becomes final is presumptively reasonable. 2505. After the six-month period, reason to believe that by there is Id. at "once the alien provides good no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. The Immigration Judge ordered the removal of Petitioner on August 1, 2017, and Petitioner appealed that decision on August 28, 2017. is Because the appeal is currently pending, the removal order not administratively final and Zadvydas does not apply. Accordingly, Petitioner's claim is premature. Because Erumevwa's custody status is being reviewed, he has not shown that he has been denied procedural due process. The issue before the court is whether Erumevwa's continued detention -8- pending review and removal is unreasonable. that held "[d] etention during The Supreme Court has removal proceedings constitutionally permissible part of that process." 123 S. Ct. 1708, 1721-1722 (2003). a Demore v. Kim, But there may come a point at which continued detention becomes unreasonable. (Justice Kennedy concurring); is Garcia v. See id. at 1726 Lacy, 2013 WL 3805730, Civil Action No. H-12-3333, at *4 (S.D. Tex. July 19, 2013) (citing Diop v. ICE/Homeland Security, 656 F.3d 221, 231 (3d Cir. 2011)). Erumevwa has been detained approximately twelve months . 10 since November 17, 2016, or Based upon the short duration of his detention, the fact that there is no indication of irregularity in the manner and timeliness of ICE's removal proceedings, and the fact that the current delay is due to Petitioner's own appeal, the court concludes removal that proceedings WL 3805730 at unreasonable *4-5 Petitioner's is not unreasonable. (holding that considering the continued 27 months' criminal detention See Garcia, during 2013 detention was not history) . Respondents' Amended Motion to Dismiss will therefore be granted. B. Inadequate Medical Care Claim Although medical care claims for convicted prisoners implicate the Eighth Amendment, an immigration detainee's medical care claims against federal officials arise under the Due Process Clause of the 10 See Petition, Docket Entry No. 1, p. 1; Petitioner's June 30, 2017, letter, Docket Entry No. 9. -9- See Edwards v. Johnson, 209 F.3d 772, 778 Fifth Amendment. Cir. 2000) the (5th ("We consider a person detained for deportation to be equivalent of a pretrial detainee; a pretrial detainee' s constitutional claims are considered under the due process clause instead of the Eighth Amendment.") ; see also Lij adu v. I. N. S., Civil Action No. 06-0518, 2009 WL 508040, at *4 (W.D. La. Feb. 26, 2009) (comparing custody to the pretrial rights of immigration detainees detainees Amendment Due Process Clause) . protected under the in state Fourteenth As a practical matter, there is "no significant distinction between pretrial detainees and convicted inmates concerning basic human needs such as medical care." v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001). Gibbs "When the alleged unconstitutional conduct involves an episodic act or omission, the question is whether the state official acted with deliberate indifference to the inmate's constitutional rights, regardless of whether the individual is a pretrial detainee or state inmate." Id. (citing Hare v. City of Corinth, Cir. 1996). provide were medical aware of care means that: from which facts substantial risk of serious harm could be drawn; actually drew that indicated 645, 647 (5th Deliberate indifference in the context of failure to reasonable officials 74 F.3d 633, that inference; they and subjectively (3) the intended ( 1) an the inference of (2) the officials officials' that response harm Thompson v. Upshur County, Texas, 245 F.3d 447, 458-59 -10- prison occur. (5th Cir. 2001) . But deliberate indifference "cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm." Id. at 459; see also Morgan v. Texas Dept. of Criminal Justice McConnell Unit, 537 F. App'x 502, 506-07 {5th Cir. 2 013) {" [A) 1 though inadequate medical certain point, treatment may, at a rise to the level of a constitutional violation, malpractice or negligent care does not."). In his Motion for Summary Judgment Petitioner alleges that ICE and the medical provider refused to schedule a hernias. 11 surgery for his But an additional referral for hernia repair was re- submitted to Petitioner the clinical director on September 11, will confirmed. 12 be informed Petitioner once also a scheduled complains condition caused by excessive medication, 13 of appointment worsening App I X 50 7 . Because Petitioner has and is medical but this complaint does not rise to the level of a constitutional violation. F. 2017, not shown Morgan, 537 deliberate indifference by his health care providers, his Motion for Summary Judgment will be denied and Respondents' Amended Motion to Dismiss this claim will be granted. 11 See Petitioner's MSJ, Docket Entry No. 6, p. 1. 12 See Johnson Declaration, Exhibit 1 to Respondents' Amended Motion to Dismiss, Docket Entry No. 8-2, p. 3. 13 See ICE Immigration Special Correspondence, Exhibit 2 to Petitioner's June 30, 2017, letter, Docket Entry No. 9-1, p. 8. -11- V. Conclusions and Order For the reasons explained above, Respondents' Amended Motion to Dismiss (Docket Entry No. 8) is GRANTED, and Erumevwa's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Docket Entry No. 1) is DISMISSED without prejudice. Petitioner's Motion for Summary of Judgment for Writ of Habeas Corpus (Docket Entry No. 6) is DENIED because the Respondents' summary judgment evidence shows that Petitioner has no claim for inadequate medical care as a matter of law. Because Respondents filed a motion to dismiss instead of a motion for summary judgment, Petitioner's medical care claim is DISMISSED without prejudice. SIGNED at Houston, Texas, on this 6th day of December, 2017. Iii' SIM LAKE UNITED STATES DISTRICT JUDGE -12-

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