United States District Court, S.D. Texas, Houston Division
OLUWASEYI ERUMEVWA, Register No. 061169579, Petitioner,
JOHN KELLY, Director of Homeland Security, et al., Respondents.
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE.
of Homeland Security detainee Oluwaseyi Erumevwa (A#
061169579) ("Petitioner") has filed a Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
("Petition") (Docket Entry No. 1) and a Motion for
Summary of Judgment for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 ("Petitioner's MS J")
(Docket Entry No. 6) 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). After considering the motions and
responses and the applicable law, Petitioner's MSJ will
be denied, Respondents' Amended Motion to Dismiss will be
granted, and this case will be dismissed for the reasons
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
Oluwaseyi Erumevwa is a native and citizen of Nigeria who was
admitted to the United States as a lawful permanent resident
in 2010. Erumevwa was convicted in Texas state
court of fraud and forgery. 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. On November 18, 2016, Erumevwa was served
notice that he was subject to removal under § 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. The appeal is
currently pending. Erumevwa remains in the custody of the
United States Department of Homeland Security, Immigration
and Customs Enforcement ("ICE") at the Houston
Contract Detention Facility awaiting his removal from the
suffers from two hernias and complained of pain while in
detention. According to Respondents, "[t]he
medical treatment of Erumevwa's hernias is
ongoing." According to the Immigration Health
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
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
Standards of Review
Motion to Dismiss
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.
. . ." Bell Atlantic Corp. v. Twombly, 127
S.Ct. 1955, 1965 (2007). "' [N]aked assertion[s]
' devoid of 'further factual enhancement'"
or "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." See Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). "[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss."
Fernandez-Montes v. Allied Pilots Ass'n, 987
F.2d 278, 284 (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."
Iqbal, 129 S.Ct. at 1949.
12(b)(6) motion tests the formal sufficiency of the pleadings
and is "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." Twombly, 127 S.Ct. at 1974. 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."
Flynn v. State Farm Fire and Casualty Insurance Co.
(Texas), 605 F.Supp.2d 811, 820 (W.D. Tex. 2009) (citing
Neitzke v. Williams, 109 S.Ct. 1827, 1832 (1989)).
Motion for ...