IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MARIA GUADALUPE REYES GAONA, §

TOMAS TORRES CURIEL, ANDRES §

PONCE QUINTERO, JORGE BECERRA §

ORTIZ, FRANCISCO CARBAJAL, and §

MARCOS JOSE BARBOZA VALLENILLA, §

§

Petitioners, §

§

VS. § CIVIL ACTION NO. SA-20-CA-473-FB

§

UNITED STATES DEPARTMENT OF §

HOMELAND SECURITY; CUSTOMS AND §

BORDER PROTECTION (CBP); §

IMMIGRATION AND CUSTOMS §

ENFORCEMENT (ICE); DEPARTMENT OF §

JUSTICE; WILLIAM P. BARR, ATTORNEY §

GENERAL OF THE UNITED STATES; §

CHAD F. WOLF, ACTING SECRETARY §

OF THE U.S. DHS; DANIEL BIBLE, ICE §

FIELD OFFICE DIRECTOR; AND §

RAYMOND CASTRO, WARDEN, §

SOUTH TEXAS DETENTION CENTER, §

GEO GROUP, INC., §

§

Respondents. §

ORDER ACCEPTING REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Before the Court are: (1) the Report and Recommendation of United States Magistrate Judge

filed September 11, 2020 (docket #47); (2) Petitioners’ Objections to the Report and Recommendation

filed September 25, 2020 (docket #49); (3) Respondents’ Response to ObjectionstoMagistrate’s Report

and Recommendation filed October 2, 2020 (docket #51); Petitioners’ Motion for Leave to File a Reply

to Respondents’ Response to Petitioners’ Objections to the Report and Recommendation filed October

9, 2020 (docket #52); and (4) Respondents’ Response to Motion for Leave filed October 16, 2020

(docket #53). Respondents advise in their response that they do not oppose petitioners’ motion for
leave to file a reply. Therefore, Petitioners’ Motion for Leave to File a Reply to Respondents’ Response

to Petitioners’ Objections to the Report and Recommendation (docket #52) is GRANTED such that the

Clerk shall file Petitioners’ Reply to Respondents’ Response to Petitioners’ Objections to the Report

and Recommendation attached to the motion for leave at docket #52-1.

Where no party has objected to a Magistrate Judge's Report and Recommendation, the Court

need not conduct a de novo review of them. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall

make a de novo determination of those portions of the report or specified proposed findings and

recommendations to which objection is made."). In such cases, the Court need only review the Report

and Recommendation and determine whether they are either clearly erroneous or contrary to law. 

United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989).

On the other hand, any Report or Recommendation to which there are objections requires de

novo review by the Court. Such a review means that the Court will examine the entire record, and will

make an independent assessment of the law. The Court need not, however, conduct a de novo review

when the objections are frivolous, conclusive, or general in nature. Battle v. United States Parole

Commission, 834 F.2d 419, 421 (5th Cir. 1987).

In the Report, United States Magistrate Judge Richard B. Farrer explains that challenges to the

condition of confinement are not cognizable in a habeas proceeding and petitioners’ procedural due

process claims fail for lack of subject matter jurisdiction and/or failure to state a claim. Report, docket

#47 at pages 4-8 (citations, footnotes, and docket references omitted). As a result, the recommendation

is made that: (1) Respondents’ Motion to Dismiss Amended Petition (docket #14) should be

GRANTED and this case should be dismissed for lack of subject matter jurisdiction and failure to state

a claim on which relief may be granted; (2) Petitioners’ Motion for Temporary Restraining Order

(docket #16) which the Court converted to a Motion for Preliminary Injunction (see docket #39) should

be DISMISSED AS MOOT and also for failure to demonstrate a likelihood of success on the merits;

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and (3) Petitioners’ Motion for Expedited Discovery (docket #40) should similarly be DISMISSED AS

MOOT.

The Court has reviewed petitioners’ objections to the Report and Recommendation and their

reply and has conducted a de novo review of the Magistrate Judge's Report and Recommendation. The

Court finds the petitioners’ objections without merit. Accordingly, the Court hereby accepts, approves,

and adopts the Magistrate Judge's factual findings and legal conclusions contained in the Report and

Recommendation (docket #47) and incorporates herein the arguments and authorities presented in

Respondents’ Response to Objections to Magistrate’s Report and Recommendation (docket #51). The

Court also accepts, approves and adopts the following statements contained in the Report:

In making this recommendation, the Court pauses to note that it is not without

sympathy for Petitioners and their current predicament. COVID-19 “presents an

extraordinary and unique public-health risk to society,” which has required

“unprecedented protective measures” by local, state, and national authorities to limit the

spread of the virus. Sacal-Micha v. Longoria, ___ F. Supp. 3d ___, 2020 WL 1518861,

at *6 (S.D. Tex. Mar. 27, 2020). Moreover, the Court acknowledges the difficulties

Petitioners face in bringing a Bivens action here. But the Court cannot assume

jurisdiction where none exists or grant relief when Petitioners have failed to state a

claim. And the lack of a judicial remedy here doesn’t nullifyRespondents’ independent

duty to uphold the Constitution. See Loa-Herrera [v. Trominski], 231 F.3d [984,] [] 991

[(5th Cir. 2000)].

Report, docket #47 at page 10.

Therefore, the Report and Recommendation shall be accepted pursuant to 28 U.S.C. § 636(b)(1)

such that: (1) Respondents’ Motion to Dismiss Amended Petition (docket #14) shall be GRANTED

and this case shall be DISMISSED for lack of subject matter jurisdiction and failure to state a claim on

which relief may be granted; (2) Petitioners’ Motion for Temporary Restraining Order (docket #16)

which the Court converted to a Motion for Preliminary Injunction (see docket #39) shall be

DISMISSED AS MOOT and also for failure to demonstrate a likelihood of success on the merits; and

(3) Petitioners’ Motion for Expedited Discovery (docket #40) shall be DISMISSED AS MOOT. 

Accordingly, IT IS HEREBY ORDERED that the Report and Recommendation of the United

States Magistrate Judge, filed in this case on September 11, 2020 (docket #47) is ACCEPTED pursuant

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to 28 U.S.C. § 636(b)(1) such that: (1) Respondents’ Motion to Dismiss Amended Petition (docket

#14) is GRANTED and this case is DISMISSED for lack of subject matter jurisdiction and failure to

state a claim on which relief may be granted; (2) Petitioners’ Motion for Temporary Restraining Order

(docket #16) which the Court converted to a Motion for Preliminary Injunction (see docket #39) is

DISMISSED AS MOOT and also for failure to demonstrate a likelihood of success on the merits; and

(3) Petitioners’ Motion for Expedited Discovery (docket #40) is DISMISSED AS MOOT. Motions

pending, if any, are also DISMISSED, and this case is now CLOSED.

It is so ORDERED.

SIGNED this 22nd day of October, 2020.

 _________________________________________________

 FRED BIERY

 UNITED STATES DISTRICT JUDGE

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