Ndir v. Doll

459 F.Supp.3d 627

Momar NDIR, Petitioner

v.Clair DOLL, Warden, Respondent

CIVIL ACTION NO. 1:20-CV-705

United States District Court, M.D. Pennsylvania.

Signed May 8, 2020

Sandra L. Greene, Law Office of Sandra Greene, York, PA, for Petitioner.

JoAnne M. Sanderson, Joseph Terz, U.S. Attorney's Office, Harrisburg, PA, for Respondent.

MEMORANDUM

Christopher C. Conner, Chief Judge

Petitioner Momar Ndir is a civil detainee in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE") at York County Prison. Ndir brings this habeas action pursuant to 28 U.S.C. § 2241 seeking immediate release from ICE custody based on his fear that he will contract the COVID-19 virus¹ if he remains detained. For the reasons that follow, we will deny Ndir's petition.

I. Factual Background & Procedural History

Ndir is a 34-year-old citizen of the country of Senegal. (Doc. 1 ¶¶ 1, 12). On September 3, 2003, Ndir entered the United States on a "B-2" visitor visa. (See id. ¶ 1; Doc. 4-1 ¶ 21); see also 8 U.S.C. § 1101(a)(15)(B). Ndir adjusted to the status of lawful permanent resident on September 12, 2013. (See Doc. 1 ¶ 1).

According to Joseph Dunn, Assistant Field Office Director for Enforcement and Removal Operations in ICE's Philadelphia Field Office ("AFOD Dunn"), Ndir was arrested in North Carolina in October 2013—one month after his adjustment of status—for obtaining property by false pretenses. (Doc. 4-1 ¶ 21). Ndir was placed on probation for 12 months pursuant to a deferred prosecution agreement, and the charges were dismissed when Ndir's term of probation terminated in March 2015.

(Id. ) Two years later, in May 2017, Ndir was convicted in the United States District Court for the Eastern District of North Carolina for conspiracy to launder monetary instruments and aiding and abetting aggravated identity theft. (Id. ) AFOD Dunn describes the offense conduct as follows:

Ndir and numerous others were involved in an extensive scheme to possess, use, and traffic in stolen credit and debit card account numbers and counterfeit access devices. Ndir and others also conspired to launder the proceeds of the access device fraud by purchasing large quantities of cigarettes for resale. Additionally, the offense involved the purchase of stolen credit card numbers from various "dark websites," usually run by criminal organizations in Romania, the Ukraine, China, and elsewhere, and then re-encoding the account numbers onto bank or gift cards. The identifiable loss to the victims (10 or more) was $481,000.

(Id. ) Ndir was sentenced to 42 months’ imprisonment for both offenses. (Id. )

After serving his federal sentence, Ndir was placed in removal proceedings. (See id. ) Ndir was charged as being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) and, because of his status as an "aggravated felon," was subject to mandatory detention pending removal. (See id. ) The immigration court sustained the charge of removability and ordered Ndir removed, and the Board of Immigration Appeals affirmed the removal order. (Id. ) Ndir petitioned for review in the Third Circuit Court of Appeals, which granted a temporary administrative stay of his removal while a motions panel considered whether his case met the criteria for a formal stay. (See id. ); see also Ndir v. Att'y Gen. U.S., No. 19-3320 (3d Cir. Dec. 3, 2019). On March 17, 2020, the immigration court convened a bond hearing and found by clear and convincing evidence that Ndir remained a flight risk and a danger to the public, necessitating continued detention. (Doc. 4-1 ¶ 21). On March 31, 2020, the Third Circuit denied Ndir's motion for stay of removal and vacated the temporary administrative stay. (Id. ); Ndir, No. 19-3320 (3d Cir. Mar. 31, 2020). AFOD Dunn advises that "[t]here is reason to believe that Ndir's removal would occur within the reasonably foreseeable future." (Doc. 4-1 ¶ 21).

Ndir is currently detained pending removal at York County Prison. (See Doc. 1 ¶ 2; Doc. 4-1 ¶ 21). He claims that the prison has failed to take appropriate action to protect detainees from the COVID-19 virus. (Id. ¶ 14). Ndir does not allege that he has a preexisting medical condition making him uniquely susceptible to contracting the virus or to experiencing severe complications from the disease it causes. (See generally Doc. 1). Instead, he expresses general concern about recent reports that some younger individuals with no comorbidities have experienced strokes after contracting the COVID-19 virus. (Doc. 1 ¶¶ 13, 25-28). Ndir alleges that he has developed anxiety and is experiencing insomnia because of his concerns. (See id. ¶ 44).

As to the conditions of confinement at York County Prison, Ndir alleges that detainees are denied protective masks, hand sanitizer, or antibacterial soap; that prison officials engage in unsanitary practices such as coughing and sneezing near unprotected detainees; that the prison is not implementing isolation or quarantine procedures; that monitoring and testing are not sufficiently widespread; that cleaning and sanitizing are "irregular"; and that the very nature of a detention facility prohibits effective social distancing. (See id. ¶¶ 14, 35). Ndir notes that a fellow ICE detainee previously tested positive for the COVID-19 virus at York County Prison. (Id. ¶ 17). And he states his belief that immigration detainees are being overlooked in favor of criminal pretrial detainees and convicted prisoners as government officials review individual cases for possible release. (See id. ¶ 24).

Evidence submitted by respondent paints a different picture. AFOD Dunn notes that York County Prison has historically operated at or near its 2,245-person capacity but that it is currently operating at approximately half capacity, with only 1,180 individuals housed in the facility as of last week. (See Doc. 4-1 ¶ 7). All staff and vendors are now being screened for COVID-19 symptoms before entering the facility. (Id. ¶ 16). In-person social visitation has been suspended, and professional visitation is limited to noncontact visits. (Id. ¶ 18).

The prison has implemented thorough screening procedures for its inmates and detainees. New inmates and detainees are screened upon intake for COVID-19 symptoms and potential exposure to the virus, and the existing prison population is regularly monitored for symptoms via "roving temperature checks." (Id. ¶¶ 11, 12, 17, 23(a)). Anyone who is symptomatic is isolated and tested for the virus; anyone who is asymptomatic but possibly exposed is placed in a "cohort"² for the duration of the virus's incubation period. (Id. ¶¶ 12-13). The prison has designated specific quarantine housing units for individuals with suspected or confirmed cases of COVID-19. (Id. ¶ 20).

York County Prison has also taken steps to lessen the risk of transmission within the prison should an inmate, detainee, or staff member contract the virus. AFOD Dunn explains that all staff and personnel entering the facility are required to wear an N95 mask. (Id. ¶ 23(a)). Any individual in "isolation status" must wear an N95 mask when leaving the cohorted housing unit. (Id. ) All other detainees and inmates are issued two surgical masks each and are required to wear a mask any time they are out of their cell, with individuals housed in "dormitory" style units being encouraged to wear masks even while sleeping. (Id. ) Prison staff launder the surgical masks weekly. (Id. ) Inmates and detainees are provided one bar of soap each, with exhausted bars being replaced immediately; high-contact and high-traffic areas are being cleaned "repeatedly" during the day; and prison officials are providing education to staff, inmates, and detainees on proper handwashing, hand hygiene, and covering coughs. (Id. ¶ 15(a)).

To date, York County Prison has had only one confirmed case of the COVID-19 virus within the facility. (Id. ¶ 22(a)). Specifically, on April 3, 2020, a female ICE detainee tested positive for the virus. (Id. ) That individual was quarantined and placed under medical observation before eventually being released from custody. (Id. ) As of April 29, 2020, there are zero confirmed cases of the virus among ICE detainees at York County Prison. (Id. )

AFOD Dunn reports that ICE has implemented federal guidance for reassessing the continued detention of individuals "potentially being at higher risk" for serious complications from COVID-19. (Id. ¶ 25). Ndir's case was reviewed as part of this process, although there is no indication in our record that Ndir in fact qualifies as a higher-risk individual. (See id. ) Reviewing officials determined that Ndir is not an appropriate candidate for release because he "constitutes a danger to persons or property and/or [a] serious risk[ ] of flight." (Id. )

On April 28, 2020, Ndir filed a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, requesting immediate release from ICE custody.³ We ordered expedited briefing, and Ndir's petition is now ripe for review.

II. Legal Standard

A federal district court may issue a writ of habeas corpus if a petitioner demonstrates that they are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). As the Third Circuit Court of Appeals has explained: the "core" purpose of habeas corpus "has traditionally been to inquire into the legality of detention, and the only judicial relief authorized was the discharge of the prisoner or his admission to bail, and that only if his detention were found to be unlawful." Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002) (citation and internal quotation marks omitted). Thus, habeas has been found to be the proper vehicle for challenges to "the fact or length of confinement," Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993) (quoting Preiser v. Rodriguez, 411 U.S. 475, 494, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ), or the "execution" of that confinement, see Woodall v. Fed. Bureau of Prisons...