Case 1:20-cv-01589-JPO Document 15 Filed 03/31/20 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GASPAR AVENDAÑO HERNANDEZ,
Petitioner,
20-CV-1589 (JPO)
-vOPINION AND ORDER
THOMAS DECKER et al.,
Respondents.

J. PAUL OETKEN, District Judge:
In this action, a petition for a writ of habeas corpus under 28 U.S.C. § 2241, Gaspar
Avendaño Hernandez seeks relief from his detention by U.S. Immigration and Customs
Enforcement. Avendaño Hernandez has filed a letter motion to compel Respondents to release
him pursuant to Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). (Dkt. No. 9.) For the reasons that
follow, the motion is granted.
I.

Background
The following facts are taken from the petition for writ of habeas corpus, as amended,

and are essentially undisputed for purposes of this motion. (See Dkt. No. 12 (“Pet.”).)
Petitioner Gaspar Avendaño Hernandez is a resident of Brooklyn, New York. (Pet. ¶ 1.)
On February 6, 2020, he was arrested by U.S. Immigration and Customs Enforcement, or ICE,
and detained at the Hudson County Correction Facility. (Pet. ¶¶ 15, 45.) On February 24, 2020,
Petitioner filed a habeas petition asserting four claims — including, most relevantly, a claim that
he is being denied adequate medical care. (Dkt. No. 1 ¶ 110–15.) On March 30, 2020, Petitioner
filed an amended habeas petition asserting the same claim in the renewed context of the
COVID-19 epidemic. (See Pet. ¶¶ 119–26)

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Petitioner suffers from several severe medical conditions. During Petitioner’s arrest, ICE
officers tased Petitioner between fifteen and twenty times in the legs and back. (Pet. ¶¶ 18–19.)
He subsequently received medical treatment at Maimonides Medical Center, at which he was
diagnosed with a right bundle branch block, or “an interruption or alteration of the electrical
conduction of the heart.” (Pet. ¶ 33.) He was also diagnosed with rhabdomyolysis, “a condition
in which breakdown of muscle fiber release[s] protein into the blood,” potentially resulting in
“damage to the kidneys, dangerous electrolyte abnormalities, [or] death.” (Pet. ¶ 34.) Petitioner
was instructed to obtain “follow-up care with a cardiac specialist,” including “an echocardiogram
and electrocardiogram.” (Pet. ¶ 121.) Petitioner has not yet received this follow-up care during
his detention at Hudson County Correction Facility. (Pet. ¶ 122.)
On March 22, 2020, the first case of COVID-19 was reported at Hudson County
Correction Facility. (Pet. ¶ 90.) Petitioner faces an increased risk of death from COVID-19 due
to his underlying medical conditions. (Pet. ¶¶ 94, 97.) Hudson County Correction Facility has
implemented some measures to slow the spread of COVID-19 in the facility (Dkt. No. 11 at 4);
however, “[s]ocial distancing is impossible.” (Pet. ¶ 92.)
On March 23, 2020, Petitioner filed a motion seeking interim release pending disposition
of the habeas petition under Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). The motion argues that
Petitioner is “particularly vulnerable to COVID-19” and that the Hudson County Correction
Facility cannot “respond adequately” to the health risks posed by the disease. (Dkt. No. 9 at 1–
3.)
II.

Legal Standard
“[T]he federal courts have inherent authority to admit to bail individuals properly within

their jurisdiction.” Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). This power “is a limited
one, to be exercised in special cases only.” Id. To obtain relief, “[t]he petitioner must
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demonstrate that the habeas petition raise[s] substantial claims and that extraordinary
circumstances exist[] that make the grant of bail necessary to make the habeas remedy effective.”
Id. (second alteration in original) (quoting Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990)).
III.

Discussion
To obtain interim release under Mapp v. Reno, Petitioner must demonstrate both that his

petition raises “substantial” claims and that “extraordinary circumstances” exist. Each
requirement is discussed in turn.
A.

Substantial Claims

Among other claims, the petition for a writ of habeas corpus asserts a claim of deliberate
indifferent to Petitioner’s medical needs while in detention. (Pet. ¶¶ 119–26.) Civil detainees
enjoy the right to be free from deliberate indifference to their serious medical needs. See
Charles v. Orange County, 925 F.3d 73, 85–86 (2d Cir. 2019). For federal detainees, the
relevant guarantee is the Fifth Amendment’s Due Process Clause. See id. That guarantee
encompasses the rights of Petitioner, as the Due Process Clause applies to “all ‘persons’ within
the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or
permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Deliberate indifference requires a two-part showing. First, Petitioner must establish that
he has a serious, unmet medical need. See Charles, 925 F.3d at 86. Second, Petitioner must
establish that Respondents acted with deliberate indifference to that need.
Here, the first requirement is easily established. A serious medical need is one that “may
produce death, degeneration, or extreme pain.” Id. (quoting Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996)). Petitioner’s rhabdomyolysis, if left untreated, “can lead to kidney damage
and death.” (Pet. ¶ 121.) Relatedly, Petitioner was also diagnosed with an abnormality in his
cardiac electrical conduction. (Id.) Standing alone, these conditions already present a risk of
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“death, degeneration, or extreme pain.” Charles, 925 F.3d at 86 (quoting Hathaway, 99 F.3d at
553). But in the context of the COVID-19 epidemic, these conditions render Petitioner
peculiarly at risk of serious injury or death in the event he contracts COVID-19. (Pet. ¶ 97; see
also Dkt. No. 12-2 at 16 (enumerating “high-risk” categories for COVID-19).) Notably,
Respondents do not appear to dispute that Petitioner’s medical conditions place him in a highrisk category for experiencing serious injury or death from COVID-19. (Dkt. No. 11 at 4.)
Furthermore, Petitioner’s medical need remains unmet. The record indicates that
Respondents have not taken any action to address the particular risks that COVID-19 poses to
high-risk individuals like Petitioner. Rather, Respondents cite only generalized “proactive
measures to prevent detainees within its care from contracting and spreading the virus,”
including
modifying the intake process for all incoming detainees and
pre-screening of all newly admitted detainees prior to admission to
the facility . . . ; suspending all contact and non-contact visits at the
jail; dramatically increasing sanitation frequency in housing units at
the jail; and screening of all employees and vendors who enter the
jail.
(Dkt. No. 11 at 4.) These measures, however, are unresponsive to Petitioner’s specific medical
need — the risk posed by COVID-19 to high-risk individuals in particular. See, e.g., Coronel v.
Decker, No. 20-CV-2472, 2020 WL 1487274, at *5 (S.D.N.Y. Mar. 27, 2020) (“[The
government] has not isolated these high-risk individuals. It has not created special safety or
hygiene protocols for them or for staff interacting with them to follow. . . . And of course, it has
not released [Petitioner], even though doing so is within the agency’s sound discretion.”). Thus,
Petitioner has met the first requirement to state a claim for deliberate indifference.
The second requirement is also met. To establish that Respondents acted with deliberate
indifference, Petitioner “can allege either that [they] knew” or that they “should have known” that

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failing to provide the complained of medical treatment would pose a substantial risk to his
health.” Charles, 925 F.3d at 87. As an initial matter, Petitioner has established that
Respondents had actual knowledge of his serious, unmet medical condition. On March 24, 2020,
Petitioner submitted a letter to ICE detailing his medical needs and asserting, in particular, his
heightened risk for serious harm or death from COVID-19 due to his underlying heart
conditions. (Dkt. No. 12-2 at 59.) Respondents are therefore aware of Petitioner’s medical
condition and the particularized risk posed to them by COVID-19.
Despite this knowledge, Respondents “can point to no specific action that [they have
taken] in direct response to this serious, unmet medical need.” Coronel, 2020 WL 1487274, at
*5. Respondents cite “proactive measures” like modification of the intake process and
increasing sanitation frequency. (Dkt. No. 11 at 4.) But even if such measures sufficed to meet
the medical needs of ordinary detainees, those measures “do nothing to alleviate the specific,
serious, and unmet medical needs of . . . high-risk [detainees].” Coronel, 2020 WL 1487274, at
*5; see Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (holding that even if a policy were
“generally justifiable . . . the application of the policy in [a particular] case could . . . amount[] to
deliberate indifference”). Nor is it clear that these measures are “generally justifiable.” As
courts in this Circuit have concluded, such measures are “patently insufficient” to protect any
detainees from infection absent “enforcement of requisite social distancing.” Basank v. Decker,
No. 20-CV-2518, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020); see also Coronel, 2020
WL 1487274, at *5 (noting that “[n]one of these steps are adequate to mitigate the transmission
of the virus when there’s already documented community-based transmission, and spread of
coronavirus from staff, vendors, or contractors” (alteration in original)).

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In short, Respondents had actual knowledge of Petitioner’s serious, unmet medical need
and did nothing in response. The Court concludes that such facts state a substantial claim for
deliberate indifference. See Coronel, 2020 WL 1487274, at *6 (concluding petitioners were
likely to succeed on deliberate-indifference claim because the government failed to “introduce[]
any evidence of actions it took in response to the particular risk COVID-19 poses to high-risk
individuals like the Petitioners”); Basank, 2020 WL 1481503, at *5 (concluding petitioners were
likely to succeed on deliberate-indifference-claim because the government “could [not] provide
the Court with any information about steps taken to protect high-risk detainees like Petitioners”).
B.

Extraordinary Circumstances

Release under Mapp is appropriate only if “extraordinary circumstances . . . make
[immediately release] necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 230
(quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981). “Severe health issues” are “the
prototypical . . . case of extraordinary circumstances that justify release pending adjudication of
habeas.” Coronel, 2020 WL 1487274, at *9. Such is the case here. Petitioner argues that he is
being subject to unconstitutional conditions of confinement — specifically, continued risk of
exposure to COVID-19 — and he seeks release so that he can avoid infection. “If Petitioner[]
were to remain detained, [he] would face a significant risk that [he] would contract COVID19 — the very outcome [he] seek[s] to avoid.” Id. Accordingly, immediate release is necessary
to “make the habeas remedy effective.” Mapp, 241 F.3d at 230 (quoting Iuteri, 662 F.2d at 161).
IV.

Conclusion
For the foregoing reasons, Petitioner’s motion to compel immediate release pending

resolution of his habeas petition is GRANTED. The Court hereby orders Respondents to
immediately release Petitioner on reasonable conditions. The parties are ordered to meet and
confer and to propose reasonable bond conditions no later than April 1, 2020, at 1:00 p.m.
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The Clerk of Court is directed to close the motion at Docket Number 9.
SO ORDERED.
Dated: April 1, 2020
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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