Moturi v. Asher, et al, No. 2:2019cv02023 - Document 45 (W.D. Wash. 2020)
Court Description: ORDER denying Petitioner's 15 Motion for Temporary Restraining Order. Signed by Judge Ricardo S. Martinez. (PM)
Download PDF
<![CDATA[
Moturi v. Asher, et al Doc. 45 Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 1 of 9 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 CASE NO. C19-2023 RSM-BAT SUDHEER RAO MOTURI, 8 ORDER DENYING MOTION FOR A TEMPORARY RESTRAINING ORDER Petitioner, 9 v. 10 12 NATHALIE ASHER, Director of the Seattle Field Office of U.S. Immigration and Customs Enforcement; et al., 13 Respondents. 11 14 15 I. INTRODUCTION 16 Petitioner Sudheer Rao Moturi, a native and citizen of India, is detained by U.S. 17 Immigration Customs and Enforcement (“ICE”) at the Northwest ICE Processing Center 18 (“NWIPC”) in Tacoma, Washington. Petitioner, who recently learned that he has Behcet’s, an 19 autoimmune disease, contends that he is at a heightened risk of serious illness or death should he 20 contract COVID-19. Petitioner further argues that Respondents1 are not taking adequate steps to 21 22 23 24 1 The Respondents are U.S. Immigration and Customs Enforcement; Nathalie Asher, Director of the Seattle Field Office of ICE; Matthew T. Albence, Deputy Director and Senior Official Performing the Duties of the Director of ICE; and Steven Langford, Warden of the NWIPC. See Dkt. #15 (Am. Pet.) at 1. ORDER – 1 Dockets.Justia.com Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 2 of 9 1 protect him from the serious risks of COVID-19 and are thereby violating his constitutional rights 2 to reasonable safety and freedom from punishment while civilly detained. 3 Currently before the Court is Petitioner’s motion for a temporary restraining order 4 (“TRO”) directing his immediate release from custody. Dkt. #15 (Mot.). Respondents oppose 5 the motion. Dkt. #30 (Opp.). At the direction of the Court, Petitioner filed a reply brief and 6 supplemental evidence. Dkt. #34. Having considered the parties’ submissions, the balance of 7 the record, and the governing law, the Court DENIES Petitioner’s motion.2 8 II. BACKGROUND 9 Petitioner, who is 40 years old, has lived in the United States for more than thirty years 10 but has been held in ICE custody at the NWIPC for the last three and a half years. Dkt. #26 11 (Petitioner Decl.) at ¶ 1. Petitioner entered the country with his family as a lawful permanent 12 resident in September 1987. Dkt. #30-8 (Bostock Decl.) at ¶ 45. Having grown up in the U.S. 13 since his initial entry, Petitioner is fluent in English. Petitioner Decl. at ¶ 2. He is college 14 educated and has a wife and children living in Oregon. Id. at ¶¶ 2, 14. 15 Petitioner also has a criminal record after being convicted of two controlled substances 16 violations in October 2008.3 Bostock Decl. at ¶ 46. Petitioner was not forced to serve prison 17 time for the offenses and fulfilled his suspended sentences and probation. Id. After Petitioner 18 19 20 21 22 23 24 2 Petitioner’s request for oral argument, Mot. at 1, is DENIED. The parties have thoroughly briefed the issues and oral argument would not be of assistance to the Court. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (court may deny request for oral argument when parties submit briefs to the court); Local Rules W.D. Wash. LCR 7(b)(4). 3 “Petitioner was convicted in the District Court of Nevada, in and for Clark County . . . for the offense of possession of a controlled substance with intent to sell . . . and sale of a controlled substance . . . . For each offense he was sentenced to 36 months in prison (suspended) and 24 months on probation.” Bostock Decl. at ¶ 46. ORDER – 2 Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 3 of 9 1 had served his suspended sentence, fulfilling his debt to society, he was detained by ICE in 2 August 2016, and ICE commenced removal proceedings because of his felony convictions. 3 On May 17, 2017, an Immigration Judge determined that Petitioner was removable. 4 Bostock Decl. at ¶ 47. Petitioner sought relief from removal, requesting withholding of removal, 5 asylum, or protection under the Convention Against Torture. But, on August 10, 2017, an 6 Immigration Judge denied Petitioner requested relief. Id. at ¶ 48. Petitioner appealed to the 7 Board of Immigration Appeals, arguing that his felony convictions do not make him removable, 8 but his appeal was dismissed on February 19, 2019. Id. at ¶ 49. Petitioner then sought review 9 before the Ninth Circuit Court of Appeals, which stayed his removal. Id. at ¶ 50. His petition 10 for review remains pending. Moturi v. Barr, No. 19-70518 (9th Cir.). 11 III. 12 DISCUSSION A. Legal Standard 13 The standard for issuing a temporary restraining order (“TRO”) is the same as the 14 standard for issuing a preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. 15 Fox Co., 434 U.S. 1345, 1347 n.2 (1977). A TRO is “an extraordinary remedy that may only be 16 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. 17 Def. Council, Inc., 555 U.S. 7, 24 (2008). “The proper legal standard for preliminary injunctive 18 relief requires a party to demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is 19 likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of 20 equities tips in his favor, and (4) that an injunction is in the public interest.’” Stormans, Inc. v. 21 Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter, 555 U.S. at 20). 22 As an alternative to this test, a preliminary injunction is appropriate if “serious questions 23 going to the merits were raised and the balance of the hardships tips sharply” in the moving 24 party’s favor, thereby allowing preservation of the status quo when complex legal questions ORDER – 3 Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 4 of 9 1 require further inspection or deliberation. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 2 1134–35 (9th Cir. 2011). However, the “serious questions” approach supports a court’s entry of 3 a TRO only so long as the moving party also shows that there is a likelihood of irreparable injury 4 and that the injunction is in the public interest. Id. at 1135. The moving party bears the burden 5 of persuasion and must make a clear showing that he is entitled to such relief. Winter, 555 U.S. 6 at 22. B. Likelihood of Success on the Merits 7 8 Petitioner argues that his continued detention in conditions that present an unreasonable 9 risk of serious illness or death violate his Fifth Amendment substantive due process rights to 10 reasonably safe conditions of confinement and to conditions not amounting to punishment.4 The 11 Court considers each in turn. 12 1. Reasonable Safety 13 “[W]hen the State takes a person into its custody and holds him there against his will, the 14 Constitution imposes upon it a corresponding duty to assume some responsibility for his safety 15 and general well-being.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199– 16 200 (1989).5 The government thus violates the Due Process Clause if it fails to provide civil 17 detainees with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200. The 18 Ninth Circuit has analyzed such conditions of confinement claims under an objective deliberate 19 indifference standard. See Castro v. Cnty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc) 20 21 22 23 24 4 Petitioner is protected by the Fifth Amendment because he is a federal civil detainee. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 5 In DeShaney, the Supreme Court analyzed the petitioners’ rights under the Fourteenth Amendment. See 489 U.S. at 194–95. Fifth Amendment due process claims and Fourteenth Amendment due process claims are analyzed in the same way. See Paul v. Davis, 424 U.S. 693, 702 n.3 (1976). ORDER – 4 Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 5 of 9 1 (adopting objective deliberate indifference standard based on Kingsley v. Hendrickson, 576 U.S. 2 389, 135 S. Ct. 2466 (2015), to evaluate failure to protect claim brought by pretrial detainee); 3 Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018) (applying Castro’s objective 4 deliberate indifference test to pretrial detainee’s claim that jail violated right to adequate medical 5 care); Smith v. Washington, 781 Fed. Appx. 595, 597 (9th Cir. 2019) (holding that Castro’s 6 objective deliberate indifference test applied to civil detainees’ conditions of confinement claim 7 alleging that state officials violated their constitutional rights by exposing them to environmental 8 tobacco smoke); see also Habibi v. Barr, No. 20-618, 2020 WL 1864642, at *3 – *4 (S.D. Cal. 9 Apr. 14, 2020) (applying Castro’s objective deliberate indifference standard to the petitioner’s 10 11 reasonable safety claim based on COVID-19). The elements of such a claim are: (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 12 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 13 15 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and 16 (4) By not taking such measures, the defendant caused the plaintiff’s injuries. 14 17 Castro, 833 F.3d at 1071. 18 The Court need only address the second element to conclude that Petitioner fails to 19 establish a likelihood of success on the merits. In Pimentel-Estrada v. Barr, Case No. C20- 20 495RSM (W.D. Wash.), the Court recently considered similar arguments from a NWIPC 21 detainee who, due to his age and underlying health conditions, was at high risk of serious illness 22 or death if he contracted COVID-19. See id., Dkt. #51. Because the detainee was in the high- 23 risk category, the Court concluded that he had established the conditions at the detention center 24 posed a substantial risk of serious harm. Id. at 25–31. However, in Petitioner’s case, a factual ORDER – 5 Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 6 of 9 1 dispute prevents the Court from concluding that he is at a “substantial risk of serious harm” and 2 from concluding that he is likely to succeed on his reasonable safety claim. See Int’l Molders’ 3 & Allied Workers’ Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir.1986) (“In deciding 4 a motion for a preliminary injunction, the district court ‘is not bound to decide doubtful and 5 difficult questions of law or disputed questions of fact.’”) (quoting Dymo Indus., Inc. v. 6 Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir.1964)). 7 The parties do not dispute that Petitioner has Behcet’s disease. See Dkt. #30-3 8 (Malakhova Decl.) at ¶ 30. Rather, they dispute whether Behcet’s compromises Petitioner’s 9 immune system such that he is at a “high-risk” under CDC guidelines. Petitioner provides expert 10 opinions that Behcet’s disease places “him at exceptional risk, as he possesses a compromised 11 immunity system that will be ill-equipped to deal with [the] devastating COVID-19 virus.” 12 Greifinger Decl. at ¶ 34.b; see also Dkt. #28 (Hays Decl.) at ¶¶ 3–4. Further, Petitioner submits 13 evidence that his immune system may be “dampened” because of the medications he has been 14 prescribed to address his Behcet’s. Hays Decl. at ¶ 3. 15 For Respondents, Dr. Sheri Malakhova, one of the doctors providing medical care at the 16 NWIPC, testifies that the diagnosis is of little concern because it was “primarily because he 17 experiences frequent canker sores in his mouth. . . . [and has] manifested with skin lesions on the 18 palms of his hand due to this condition.” Malakhova Decl. at ¶ 30. Dr. Malakhova explains that 19 “[t]he disease symptoms vary from person to person and may range from mild to severe.” Id. at 20 ¶ 31. Here, Dr. Malakhova testifies that Petitioner’s “disease has been quite limited with little to 21 no involvement of other commonly found” lesions. Id. at ¶ 32. Accordingly, Dr. Malakhova 22 concludes that “Petitioner’s condition does not place him at higher risk regarding the SARS- 23 CoV-2 viral infection causing COVID-19 and that Petitioner’s condition does not meet the 24 medical criteria to be considered for release from ICE custody on that basis.” Id. at ¶ 34. ORDER – 6 Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 7 of 9 1 On this record, the Court cannot conclude that Petitioner is likely to prove that his 2 condition places him at a “substantial risk of serious harm.” First, Dr. Malakhova’s conclusion 3 must be given some credence as she has been involved in Petitioner’s medical care while he has 4 been detained. See Dkt. #16-18 at 2 (indicating modifications to Petitioner’s medical records 5 contemporaneous to his diagnosis of Behcet’s); but see Malakhova Decl. at ¶ 30 (Dr. Malakhova 6 specifying that “[i]n preparation for this declaration, IHSC[6] reviewed Petitioner’s available 7 records”) (emphasis added); id. at ¶ 34 (Dr. Malakhova opining on severity of disease after 8 “careful review of Petitioner’s clinical manifestations of Behcet’s Disease”) (emphasis added). 9 Conversely, Dr. Hays’ expert opinions are based on the fact that she has previously 10 “spoken to [Petitioner] at the [NWIPC] about his symptoms and his illness.” Hays Decl. at ¶ 3. 11 While Dr. Hays may have a strong basis for her opinion, she testifies only that Petitioner “has 12 experienced many of the symptoms but has not had sufficient evaluation of his disease to know 13 if his internal organs are affected” and that he is using two medications that “can dampen the 14 immune system.” Id. Dr. Hays does not conclude that Petitioner is immunocompromised. 15 Dr. Greifinger, by contrast, does opine that Petitioner is immunocompromised. But the 16 Court does not find his testimony persuasive. Dr. Greifinger declares that Petitioner’s Behcet’s 17 “places him at exceptional risk, as he possesses a compromised immunity system that will be ill- 18 equipped to deal with devastating COVID-19 virus.” Greifinger Decl. at ¶ 34.b. But Dr. 19 Greifinger’s opinion is based upon his review of the “factual claims of [Petitioner’s] medical 20 conditions made in” Petitioner’s Petition. Id. at ¶ 34. For its part, Petitioner’s Amended Petition 21 provides only conclusory allegations, including that Petitioner Behcet’s “places him at 22 exceptional risk, as he possesses a compromised immunity system that will be ill-equipped to 23 24 6 IHSC refers to ICE’s Health Service Corps, which provides medical care in some ICE detention facilities, including the NWIPC. ORDER – 7 Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 8 of 9 1 deal with devastating COVID-19 virus.” Am. Pet. at ¶ 55. Dr. Greifinger’s opinion is overly 2 conclusory to say the least. 3 The Court is sympathetic to the fact that Petitioner is unable to choose his own healthcare 4 providers and is not at liberty to be fully evaluated by non-IHSC doctors. Yet the lack of 5 competent medical testimony as to the risk Petitioner faces on account of his Behcet’s precludes 6 the Court from finding a substantial risk of serious harm at this stage. Accordingly, the Court 7 concludes that Petitioner has not demonstrated a likelihood of success on the merits of his 8 reasonable safety claims.7 9 2. Punitive Conditions of Confinement 10 Conditions of confinement violate a civil detainee’s Fifth Amendment due process rights 11 when the conditions “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 12 (1979); see also Kingsley, 135 S. Ct. at 2473–74. A petitioner can demonstrate punitive 13 conditions by showing that the challenged condition is: (1) expressly intended to punish or (2) 14 not rationally related to a legitimate government objective or is excessive to that purpose. Id.; 15 see also Jones v. Blanas, 393 F.3d 918, 933–34 (9th Cir. 2004) (holding that conditions are 16 punitive where they are “employed to achieve objectives that could be accomplished in so many 17 alternative and less harsh methods”). Petitioner raises only the second test, arguing that the risk 18 he faces of serious illness or death from COVID-19 is not reasonably related to or is excessive 19 in relation to a legitimate governmental interest. Mot. at 17. 20 But, as with his reasonable safety claim, Petitioner fails to demonstrate a likelihood of 21 success on his punitive conditions of confinement claim due to the same disputed issues of fact. 22 Petitioner does not establish that he is likely to prove that his medical history puts him at risk for 23 24 7 Because this issue is dispositive, the Court does not address the remaining Winter factors. ORDER – 8 Case 2:19-cv-02023-RSM-BAT Document 45 Filed 04/30/20 Page 9 of 9 1 serious illness or death from COVID-19. Because he cannot establish a likelihood of success on 2 the merits of his punitive conditions of confinement claim, the Court need not address the 3 remaining Winter factors and a TRO will not issue. IV. 4 5 6 CONCLUSION The Court DENIES Petitioner’s Motion for a Temporary Restraining Order. Dkt. #15. DATED this 30th day of April, 2020. 7 8 A 9 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER – 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
