Lopez v. Lowe

452 F.Supp.3d 150

Aldo Jovani CAMACHO LOPEZ, Petitioner

v.Craig A. LOWE, Warden of Pike County Correctional Facility, et al., Respondents

CIVIL ACTION NO. 3:20-CV-563

United States District Court, M.D. Pennsylvania.

Signed April 7, 2020

Amended April 9, 2020

Christopher M. Casazza, Pro Hac Vice, Alex G. Isbell, Solow, Isbell and Palladino, LLC, Philadelphia, PA, for Petitioner.

Bruce D. Brandler, Joanne M. Sanderson, Joseph Terz, U.S. Attorney's Office, Harrisburg, PA, for Respondents.

MEMORANDUM

Christopher C. Conner, Chief Judge

Petitioner Aldo Jovani Camacho Lopez ("Camacho Lopez") is a civil detainee in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), who brings this habeas action pursuant to 28 U.S.C. § 2241 seeking emergency relief in the form of a temporary restraining order. (See generally Docs. 1, 2). He is presently confined at the Pike County Correctional Facility ("PCCF"). Most unfortunately, Camacho Lopez has contracted the COVID-19 virus,¹ and he seeks immediate release based upon allegations of inadequate medical care.

Over the weekend, we tasked the parties to address, on an expedited basis, the threshold question of this court's jurisdiction as well as the extent of Camacho Lopez's symptoms and the nature of his medical treatment.² At the conclusion of a telephonic hearing conducted Monday, April 6, 2020, at 2:00 p.m., we denied Camacho Lopez's request for a temporary restraining order and denied his request for immediate release. This memorandum opinion provides the factual and legal bases for the court's decision.

I. Factual Background & Procedural History

Camacho Lopez is 31 years old and a citizen of Mexico. (Doc. 2, Ex. A at 1). On May 4, 2012, while in the United States illegally, Camacho Lopez was charged with driving under the influence of alcohol ("DUI") in Taylor, Pennsylvania. (See Doc. 5-1 ¶ 11). Five days later, he was charged with removability by United States Citizenship and Immigration Services based on his presence in the United States without admission or parole. (Id. ) Camacho Lopez served a 30-day sentence on the DUI charge and was released from custody. (See id. ) He was thereafter arrested by immigration officials in Philadelphia during an enforcement proceeding, taken into custody, and released on bond. (Id. ) After an immigration judge ordered Camacho Lopez removed and the Board of Immigration Appeals dismissed his appeal, Camacho Lopez was removed to Mexico on April 18, 2018. (Id. ¶ 12).

Less than two months later, on June 14, 2018, United States Border Patrol agents encountered Camacho Lopez in Hidalgo, Texas, and arrested him. (Id. ¶ 13). Camacho Lopez was again charged with removability, this time as an alien having been previously removed, and he was removed to Mexico the same day. (Id. )

Camacho Lopez returned to the United States for a third time between June 2018 and December 2019. On December 12, 2019, he was arrested, also in Taylor, Pennsylvania, for simple assault and harassment. (Id. ¶ 14). He was detained at the Lackawanna County Prison, and an immigration detainer was lodged against him. (Id. ) On December 16, 2019, Camacho Lopez was transferred to ICE custody and once more ordered to be removed. (Id. ) Camacho Lopez was then indicted in this court for illegal reentry; he pled guilty and was sentenced to time served. United States v. Camacho-Lopez, No. 3:20-CR-2, Docs. 1, 19, 21 (M.D. Pa.) (Mannion, J.). After his federal sentencing, Camacho Lopez was returned to ICE custody and scheduled for removal. (See Doc. 5-1 ¶¶ 14-15).

On March 28, 2020, Camacho Lopez presented with a fever. (Id. ¶ 13). Officials promptly invoked procedures designed to identify and treat ICE detainees with COVID-19 symptoms, placing Camacho Lopez in "cohort" status and postponing his removal. (Id. ) According to Christopher George, Assistant Field Officer Director ("AFOD George") in ICE's Philadelphia Field Office, "cohorting" is an "infection prevention strategy" that involves housing asymptomatic but potentially ill detainees together during a virus's incubation period. (Id. ¶ 9). Cohorting lasts for the entire duration of the incubation period—14 days in the case of the COVID-19 virus. (Id. ) When an individual in a cohort exhibits symptoms, they are referred to a medical provider for further evaluation. (Id. ) AFOD George further explains that detainees who test positive will remain isolated for treatment and, in the event of clinical deterioration, will be transferred to a local hospital. (Id. ¶ 8).

PCCF's Health Services Administrator summarizes Camacho Lopez's symptoms and treatment as follows:

[O]n March 28, 2020, Camacho Lopez was identified as febrile with a temperature of 100.8 during daily temperature assessments conducted on the entire prison population. He was presenting with no symptoms and was not assessed in response to a medical request submission. Following the temperature assessment, the on call medical provider was contacted who instructed to provide Camacho Lopez with a mask and gloves. On March 28, 2020, Camacho Lopez and his cellmate were issued a surgical mask and gloves. Additionally, Camacho Lopez and his cellmate were moved into a quarantine dorm where they are assessed by medical staff no less than three times a day. During a routine follow-up assessment on March 31, 2020, Camacho Lopez reported generalized body aches and shortness of breath when lying down at night. During the assessment he presented a body temperature of 102.4. The medical provider was contacted and ordered a rapid flu test and COVID-19 testing if required as well as instructions to administer Tylenol 650 twice daily only if his temperature reaches 103 or greater. The rapid flu test was negative, so the COVID-19 test was administered. On April 2, 2020, the COVID-19 test results were positive. He is currently prescribed a multivitamin daily and Gatorade three times a day. Camacho Lopez is scheduled to see the medical provider for follow up on Tuesday, April 7, 2020, however status reports are being relayed by medical personnel on a routine basis.

(See id. ) Medical records from PCCF confirm the Health Services Administrator's description of Camacho Lopez's symptoms and his course of treatment. (See Hr'g Ex. A) .

Camacho Lopez provided his own account of his symptoms in a declaration dated April 3, 2020, stating: "At present my lungs hurt, I have trouble breathing, I have chest pain, my throat feels swollen, my muscle and bones are achy, and I have very little energy. I [am] having a lot of trouble breathing, it is taking me a lot of effort to breathe." (Doc. 2, Ex. A ¶ 6). He also claimed to have been seen by a nurse only once per day. (Id. ¶ 7). Based on medical records supplied by respondents, it appears this latter assertion concerning once-daily visits pertains to the treatment period predating Camacho Lopez's positive test result. (Compare Hr'g Ex. at 38-44 (pre-result treatment records dated March 29, 2020, through April 2, 2020), with id. at 44-50 (post-result treatment records dated April 2, 2020, through April 5, 2020)).

Late in the afternoon of Friday, April 3, 2020, Camacho Lopez filed a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. We set an expedited briefing schedule and slated the matter for an emergency hearing, which we held on Monday, April 6, 2020.

Counsel updated the court on Camacho Lopez's medical status as follows. On April 4, 2020, at 9:00 a.m., medical staff reported to AFOD George that Camacho Lopez "remain[ed] in an isolation dorm," that he was "presenting no outward symptoms or signs of distress," and that his fever was being monitored closely by medical staff and treated as needed with Tylenol 650. (Doc. 5-1 ¶ 17). This status update also reported that, as of that date, four ICE detainees at PCCF (including Camacho Lopez and his cellmate) and five correctional officers had tested positive for the COVID-19 virus. (Id. ¶ 18(a)).

Things changed on the evening of April 5, 2020, when Camacho Lopez complained to PCCF medical staff of shortness of breath, difficulty breathing, and generally feeling "as though he cannot get enough air." (Hr'g Ex. A at 55). Staff consulted with the on-call medical provider, who directed that Camacho Lopez be taken immediately to the hospital. (Id. ) An emergency department report from Wayne Memorial Hospital reflects that Camacho Lopez was seen at 6:17 p.m. (Id. ) The report documents a fever of 102 degrees and complaints of increasing shortness of breath. (Id. ) The treating physician noted that Camacho Lopez's oxygen level was at 93% on room air and 100% on an oxygen supply and that he did not appear to be in acute respiratory distress. (Id. at 71). A second emergency department report prepared at 10:15 p.m. indicates that Camacho Lopez denied chest pain, that his vital signs were stable, that he was on two liters-per-minute of oxygen via nasal canula, and that a chest x-ray revealed "concern for pneumonia—viral in context." (Id. at 73).

Camacho Lopez was admitted for observation "given concern for potential escalation of symptoms, especially around day 7-8 from symptom onset." (Id. ) As of yesterday morning, his condition was stable: a nurse at Wayne Memorial Hospital reported to PCCF medical staff that Camacho Lopez was receiving IV medication, that his temperature was 98.7 degrees, and that the "latest respiratory assessment revealed diminished lung sounds bilaterally in the bases, no [shortness of breath], no cough, and [oxygen levels of] 98% on room air." (Id. at 55).

II. Legal Standard

Motions for temporary and preliminary injunctive relief are governed by a four-factor test.³ The movant must, as a threshold matter, establish the two "most critical" factors: likelihood of success on the merits and irreparable harm. Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). Under the first factor, the movant must show that "it can win on the...