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)

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
https://locator.ice.gov/odls/#/index.
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

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