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Erumevwa v. Kelly

United States District Court, S.D. Texas, Houston Division

December 6, 2017

OLUWASEYI ERUMEVWA, Register No. 061169579, Petitioner,
v.
JOHN KELLY, Director of Homeland Security, et al., Respondents.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         Department 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 explained below.

         I. Procedural Posture

         In 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 Fed.R.Civ.P. 56(c)(1).

         II. Background[1]

         Petitioner Oluwaseyi Erumevwa is a native and citizen of Nigeria who was admitted to the United States as a lawful permanent resident in 2010.[2] Erumevwa was convicted in Texas state court of fraud and forgery.[3] 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.[4] 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.[5] 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 United States.[6]

         Erumevwa suffers from two hernias and complained of pain while in detention.[7] According to Respondents, "[t]he medical treatment of Erumevwa's hernias is ongoing."[8] According to the Immigration Health Services Corps:

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 provider.[9]

         Respondent 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 claim.

         III. Standards of Review

         A. Motion to Dismiss

         Under 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.

         A Rule 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)).

         B. Motion for ...


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