TRI AL OFFICE & ADMINISTR ATION: 301 N. GU AD AL UPE STREE T SANTA FE , NEW MEXICO 87501 PHONE 505.395.2887 FAX 505. 204. 7060

APPELL ATE DIVIS ION: 1422 PASEO DE PER ALTA, BLDG. 1 S ANTA FE, NEW MEXICO 87501 PHONE 505.395.2890 FAX 505.204.7065

Bennett J. Baur Kimberly Chavez Cook

Chief Public Defender Appellate Defender

May 1, 2020

Joey D. Moya, Esq.

Clerk of Court

Supreme Court of New Mexico

P.O. Box 848

Santa Fe, NM 87504

Re: LOPD v. State of NM, S-1-SC-38252

Dear Mr. Moya,

Pursuant to Rule 12-213 (D)(2) NMRA, I would like to present to the Court supplemental

authority that relates to the pending Petition in LOPD v. State of NM, S-1-SC-38252, filed on April

14, 2020. Undersigned counsel submits the following authority either arising or discovered after the

filing of the Petition, as counsel may reference these authorities during oral argument May 4, 2020.

Counsel therefore submits supplemental authority to this Court for its consideration regarding the

following points of law

Supplemental decisions in similar litigation:

Wilson v. Williams, CASE NO. 4:20-cv-00794 (N.D. Ohio, April 22, 2020) (granting TRO

against BOP at Elkton prison based on likely success in a class habeas action based on cruel

and unusual punishment addressing inmates with increased medical risk). (Attached.)

Zepeda Rivas v. Jennings, No. 20-cv-02731-VC (N.D. Cal. April 29, 2020) (order granting

temporary restraining order to class of ICE detainees requiring ICE to take measures that will

enable social distancing, finding “the plaintiffs have demonstrated an exceedingly strong

likelihood that they will prevail on their claim that current conditions at the facilities violate

class members’ due process rights by unreasonably exposing them to a significant risk of

harm.”). (Attached.)

Colvin v. Inslee, No. 98317-8 (Wa. April 23, 2020) (5-4 order denying mandamus) (dissenting

opinion finding an open question on the merits of cruel and unusual punishment because,

although Governor and Corrections Secretary had instituted a plan to protect inmates and staff

from coronavirus but had “continuing problems”). (Attached.)

FiledSupreme Court of New Mexico

5/1/2020 4:34 PMOffice of the Clerk

2

Costa v. Bazron, No. 19-3185 (RDM) (D.D.C. April 25, 2020) (partially granting temporary

restraining order based on likelihood of success on a due process claim regarding the safety and

well-being of involuntarily committed mental patients). (Attached.)

Published News or Institutional Resources

Jeff Proctor, New Mexico wins praise for COVID-19 testing, but testing isn’t happening in NM

prisons. Gov says that’s about to change., N.M. In Depth (May 1, 2020), available at

http://nmindepth.com/2020/05/01/failure-of-prison-coronavirus-testing-in-nm-begs-scrutiny/.

Hannah Colton, N.M. Released 29 From State Prisons And Tested Just 8 Prison Inmates,

KUNM (April 30, 2020), available at https://www.kunm.org/post/nm-released-29-state-

prisons-and-tested-just-8-prison-inmates.

Brigham and Women’s Hospital (Boston), Covid-19 Clinical Guidelines, Benjamin S. Parker

MD MBA, Katherine H. Walker MD MSc, eds. (updated April 19, 2020) (Presentation can be

extremely varied; most common is a non-specific flu-like illness. The majority of patients

present with more than one sign/symptom on admission, although the combination of fever,

cough and shortness of breath may be rare), available at

https://covidprotocols.org/protocols/01-clinical-course-prognosis-and-epidemiology/.

Amanda Martinez and Phaedra Haywood, After virus case, groups ask New Mexico Supreme

Court to release more inmates, Santa Fe New Mexican (April 14, 2020) (“Attorney General

Hector Balderas, who also is named as a respondent in the complaint, wrote in an email that

while he supports health measures ‘focused on release of non-violent offenders, I strongly

believe victims and their families should be included in the legal process.’”), available at

https://www.santafenewmexican.com/news/coronavirus/after-virus-case-groups-ask-new-

mexico-supreme-court-to-release-more-inmates/article_746401ce-7e60-11ea-9dd1-

5b21e81bd3c9.html.

Jeff Proctor, NM prison inmate says soap in short supply; possible COVID-19 outbreak behind

the walls ‘a big worry’, NM In Depth (April 23, 2020), available at

http://nmindepth.com/2020/04/23/nm-prison-inmate-says-soap-in-short-supply-possible-covid-

19-outbreak-behind-the-walls-a-big-

worry/?utm_source=NMID+Community&utm_campaign=c6b6ecb008-

RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_9294743d38-c6b6ecb008-

126639801.

German Lopez, 9 questions about coronavirus and masks, answered, Vox (April 8, 2020)

(“The CDC’s guidance — and the best argument for wearing a mask, according to the experts I

spoke with — is primarily to stop the wearer from infecting other people.”) and (“If you reuse a

mask without cleaning it, you can breathe in or otherwise expose yourself to droplets the mask

captured last time.”) and (“Above all, don’t touch the mask and then touch other parts of your

face, especially your eyes, mouth, and nose. The entire point of this fabric is to shield you from

outside germs. So you don’t want to touch the part of the mask doing the shielding and then the

parts of your face that are vulnerable to infection.”), available at

https://www.vox.com/2020/4/8/21209895/coronavirus-face-masks-n95-covid-19-ppe-shortage.

3

Other Authorities of Public Record

NM Sentencing Commission Report: Estimated Number of Offenders in New Mexico

Corrections Facilities in October Eligible for Controlled Release (Oct. 2019) (finding that 294

NMCD inmates were eligible for early controlled release under the Community Corrections

Act, NMSA §§ 33-9-1 to -10 (2013)), available at

https://nmsc.unm.edu/reports/2019/estimated-number-of-offenders-in-new-mexico-corrections-

facilities-in-october-eligible-for-controlled-release.pdf.

AFSCME Letter to NMCD o/b/o Correctional Staff bargaining units (attached).

NMCD IPRA response: Current Inmates 65 Years and Older by Facility (IPRA# 20-255) (total

of 210 in all facilities) (attached).

IPRA response: Draft NMDOH (ERD) Infectious Disease Policy Letter (attached).

Copies of the authorities for which hyperlinks were available are not attached to this letter,

however, copies of all other supplemental authorities are attached. This letter was electronically served

upon the Respondents and Real Parties.

Sincerely,

/S/ Kimberly Chavez Cook Kimberly Chavez Cook, Appellate Defender Law Offices of the Public Defender 301 N. Guadalupe St. Santa Fe, NM 87501 (505) 395-2890

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, et al., Petitioners, vs. MARK WILLIAMS, et al., Respondents.

: : : : : : : : : : :

CASE NO. 4:20-cv-00794 ORDER [Resolving Doc. 1]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

On April 13, 2020, Petitioners, inmates at Elkton Federal Correctional Institution,

brought this emergency habeas action seeking release from Elkton due to the spread of

COVID-19 within the prison.1 Petitioners claim to represent both a class of all Elkton

inmates as well as a subclass of medically vulnerable inmates.2 Respondents opposed.3

On April 17, 2020 the Court held a hearing on the matter. On April 18, 2020, both

parties filed additional materials in response to the Court’s hearing inquiries.4

For the foregoing reasons, the Petitioners’ motion for relief is GRANTED IN PART

and DENIED IN PART.

I. COVID-19 at Elkton

State government and the media have well documented the spread of COVID-19

and the efforts to contain the virus and limit its impact. The virus’s highly-infectious nature

and the risks it poses, especially to medically vulnerable populations, has led to the

1 Doc. 1. 2 Id. 3 Doc. 10. 4 Docs. 18, 19.

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implementation of unprecedented measures throughout the country and the world.

While research concerning the virus is ongoing, for some time health officials have

known and reported that asymptomatic persons spread the virus.5 A large percentage of

coronavirus-infected citizens are asymptomatic.6 These asymptomatic persons show no, or

limited, symptoms. Yet, they spread the virus.

Due to this threat from infected but asymptomatic individuals, testing, tracing and

treatment became the first mitigation responsibilities. As the virus has become more

widespread, state government has directed citizens to reduce the spread not only through

careful hygiene practices, but also through social distancing and isolation.

For inmates in our country’s prisons the virus is no less a threat, but distancing

measures are only minimally available.

Defendants Elkton officials have implemented measures to lessen the COVID-19

threat. Elkton segregates new inmates for fourteen days.7 Elkton officials evaluate existing

inmates with virus symptoms to determine whether isolation or testing is appropriate.8

They check inmate and staff temperatures.9 Elkton officials segregate inmates for fourteen

days before allowing the inmates to leave Elkton.10

But despite their efforts, the Elkton officials fight a losing battle. A losing battle for

5 CDC, Coronavirus Disease 2019: Recommendations for Cloth Face Covers,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (last visited Apr. 20, 2020) (citing Yan Bai, Lingsheng Yao, and Tao Wei, et al., Presumed Asymptomatic Carrier Transmission of COVID-19, JAMA (Feb. 21, 2020), https://jamanetwork.com/journals/jama/fullarticle/2762028).

6 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. TIMES (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html.

7 Doc. 10 at 8. 8 Id. at 9. 9 Id. at 9-10. 10 Id. at 27.

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staff. A losing battle for inmates.

The parties to the present action dispute some of the factual details of the current

conditions within Elkton. Even in light of these disputes, the prison’s “dorm-style” design

guarantees that inmates remain in close proximity to one another.11 With the shockingly

limited available testing and the inability to distance inmates, COVID-19 is going to

continue to spread, not only among the inmate population, but also among the staff.

According to Respondents, Elkton has had 59 confirmed cases of COVID-19 among

inmates.12 The number of infected staff members, 46, is almost as high.13 The number has

risen even in the days since the initiation of this lawsuit and will continue to do so absent

intervention.

Notably, it is unlikely that these figures represent the actual number of cases at the

institution, given the paltry number of tests the federal government has made available for

the testing of Elkton’s inmates.

To date, Elkton has received only 50 COVID-19 swab tests and one Abbott Rapid

testing machine with 25 rapid tests.14 Most swab tests have already been used. Because

the Department of Justice has given BOP so few tests, Elkton medical staff has needed to

triage test usage.

Respondents represent that “test swabs are back-ordered until July or August,” but

11 Doc. 10 at 7. 12 Doc. 19 at 2. 13 The official numbers on the Bureau of Prison’s website conflict with the numbers reported by

Respondents. The BOP’s website reports 52 confirmed cases among inmates, 46 cases among staff. Contrarily, Respondents report 59 cases among inmates and 34 among staff. Compare Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited April 22, 2020), with Docs. 10 at 10, 19 at 2.

14 Doc. 19 at 1-2.

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they “believe that they will receive an additional 25 rapid test[s]” each week.15 These

additional tests are all but useless considering Elkton’s 2,400 inmates.

Recent experience at another Ohio correctional facility, Marion Correctional

Institution, run by the Ohio Department of Rehabilitation and Corrections, shows how

quickly and insidiously the virus spreads among a tightly quartered prison population.

Both Elkton and Marion are low security prisons and house approximately 2,500

inmates.16

The State of Ohio has tested its prisoners en masse for COVID-19. At Marion 1,950

inmates tested positive for COVID-19.17 This number includes large numbers of inmates

who were asymptomatic and would otherwise not have been tested.18

Everything suggests that if BOP tested as ODRC commendably has, results would

show that the virus has become equally widespread within Elkton. However, without

testing there is no way to know how many Elkton inmates have the virus.

The Ohio prisons virus response undercuts BOP’s ability to argue that testing is

either unavailable or is impossible. Why has the Justice Department allocated Elkton an

entirely insignificant number of tests while Ohio has been able to pull off mass testing

across not only Marion, but at multiple institutions?

While the COVID-19 tests inadequacy is one area of grave concern, testing is only

one part of the multi-faceted approach institutions like Elkton must take to reduce the

15 Id. 16 Ohio Department of Rehabilitation & Correction, Marion Correctional Institution,

https://drc.ohio.gov/mci (last visited Apr. 22, 2020). 17 Ohio Department of Rehabilitation & Correction, COVID-19 Inmate Testing Updated 4/20/2020,

https://drc.ohio.gov/Portals/0/DRC%20COVID-19%20Information%2004-20-2020%20%201304.pdf (last visited Apr. 20, 2020).

18 Id.

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virus’s spread.

Respondents report that the prison, in accordance with BOP guidance, has changed

its operations to try to limit the virus’s spread.19 For instance, the prison has implemented

health screening measures for various groups of inmates, staff, and civilians.20 These are all

good efforts.

However, once the virus is inside the prison, as it already is at Elkton, screening

measures can only be so effective. And screening will only help to identify individuals

with active symptoms, not those asymptomatic individuals who can nevertheless spread

the virus undetected.

Respondents have also implemented “modified operations” to somewhat reduce

inmate contact with each other. Elkton allows inmate housing units of 150 to pick up pre-

packaged meals, receive dispensed medications, and visit the commissary with only a

single housing unit moving around the institution at one time.21 Better practices, but not

enough.

Respondents attempt to liken each housing unit to a “family unit.” They say that

each unit is akin to unincarcerated community members who live with roommates or

family.22 They say that each housing unit is separate from other units, visitors, and sick

inmates.23

But each single housing unit includes about 150 people.24 Respondents ignore that

19 Doc. 10 at 7-11. 20 Id. at 8-9. 21 Doc. 10 at 21. 22 Id. at 21-22. 23 Id. 24 Id.

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some unit inmates nonetheless circulate throughout the prison as “essential” workers.

Because some untested inmates circulate throughout Elkton, the housing units are not truly

isolated. And with 150 “family members,” there are significant opportunities to increase

the risk of spread. Within each housing unit there seems to be little chance of obstructing

the spread of the virus.

Respondents say that soap and disinfectant are readily available, a fact that

Petitioners dispute.25 However, these supplies can only be so useful in an environment

where the inmates are constantly in close proximity to one another. Likewise, the

education about hygiene and social distancing Respondents tout is only effective if the

inmates have the supplies and physical space to put such knowledge into practice.26

Furthermore, while the deteriorating health conditions at Elkton pose a danger for

each of the 2,400 men who are incarcerated at Elkton, the institution’s inability to stop the

spread of the virus among the inmates in its care poses an even greater risk for inmates

whose medical conditions put them at higher risk of death if they contract the virus.27

Plus, while this litigation concerns Elkton’s conditions for its inmates, the same

conditions endanger prison staff, who must continue to go to work despite the virus’s

spread throughout the facility. And the Elkton spread endangers the staff’s families who

come into contact with Elkton’s undoubtedly exposed staff.

In light of these realities, Petitioners, inmates at Elkton, bring the present action.

They sue on behalf of themselves and on behalf a class of all current and future Elkton

25 Compare Doc. 10 at 27, with Doc. 1 at 17. 26 Doc. 10 at 11-12. 27 See generally Briefs for Disability Rights Ohio and Public Health and Human Rights Experts as

Amici Curiae Supporting Petitioners, Docs. 8-1 and 14-1.

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inmates.28

They bring additional claims on behalf of the “Medically-Vulnerable Subclass,”

defined as:

[A]ll current and future persons incarcerated at Elkton over the age of 50, as well as all current and future persons incarcerated at Elkton of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS or prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.29 Petitioners seek certification of the classes. In addition, they request:

a temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Respondents to identify within six (6) hours of the Court’s order, and submit to the Court a list of, all Medically-Vulnerable Subclass Members, and release all such persons within twenty-four (24) hours, with such release to include supports to ensure social distancing and other expert-recommended measures to prevent the spread of coronavirus.30 Petitioners define release as “discharge of incarcerated persons from the physical

confines of Elkton, not necessarily release from custody.”31 Petitioners suggest that

“[r]elease options may include, but are not limited to: release to parole or community

supervision; transfer furlough (as to another facility, hospital, or halfway house); or non-

transfer furlough, which could entail a release person’s eventual return to Elkton once the

pandemic is over and the viral health threat abated.”32

28 Doc. 1 at 29. 29 Id. 30 Doc. 1 at 36. 31 Id. at 2 n. 2. 32 Id. at 2.

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In other words, Petitioners seek an “enlargement.” Enlargement is not release,

although some courts refer to it using the terms release or bail.33 When a court exercises

its power to “enlarge” the custody of a defendant pending the outcome of a habeas action,

the BOP maintains custody over the defendant, but the place of custody is altered by the

court.34

After the release of the subclass, Petitioners request “a plan, to be immediately

submitted to the Court and overseen by a qualified public health expert” that provides for

mitigation efforts in line with CDC guidelines and a housing and/or public support plan for

released inmates.35 They also seek the release of Class Members so that the remaining

inmates can follow CDC guidance to maintain six feet of space between them while in the

prison.36

Respondents respond that Petitioners cannot challenge the conditions inside the

prison through a habeas corpus action and that this Court and the BOP do not have the

authority to grant early release.37

II. Discussion

District courts have inherent authority to grant enlargement to a defendant pending

a ruling on the merits of that defendant’s habeas petition.38 The Court finds that the

exceptional circumstances at Elkton and the Petitioners’ substantial claims, that are likely to

33 See Declaration of Professor Judith Resnik Regarding Provisional Remedies for Detained

Individuals at 8, Money et al. v. Jeffreys, No. 1:20-cv-02094 (N.D. Ill. April 4, 2020), ECF No. 24-3. 34 Id. 35 Doc. 1 at 36-37. 36 Id. at 37. 37 Doc. 10 at 15-19. 38 See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Dotson v. Clark, 900 F.2d 77, 79 (6th

Cir. 1990).

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succeed at the merits stage, necessitate the exercise of that authority and that such relief is

proper for members of the subclass defined infra.39

However, given the nature of the present litigation as class action habeas

proceeding, the Court is unable to determine the specific type of enlargement most suitable

for each subclass member. In light of this difficulty, the Court will grant a preliminary

injunction, in aid of its authority to grant enlargements, ordering Respondents to determine

the appropriate means of transferring medically vulnerable subclass members out of Elkton.

Pursuant to the below analysis, the Court finds that Petitioners have met the standard for a

preliminary injunction.

A. Jurisdiction

Petitioners argue that Elkton’s inability, even if it tried, to adequately protect the

inmates from the risks posed by coronavirus subjects the prisoners to substantial risk of

harm in violation of their Eighth Amendment rights. Petitioners say that their claim is

cognizable under 28 U.S.C. § 2241 as a habeas action because they are challenging the

execution of their sentences, rather than the validity of the convictions themselves.40

Petitioners argue that they are not seeking to challenge a specific aspect of their

confinement, but the confinement itself.41

Respondents argue that habeas relief is not the proper vehicle to challenge

conditions of confinement.42

Courts have attempted to clarify the types of claims appropriate for habeas relief and

39 Dotson, 900 F.2d at 79. 40 Doc. 1 at 34-35. 41 Doc. 18 at 8-9. 42 Doc. 10 at 15-16.

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distinguish those claims from civil rights claims more appropriately resolved under § 1983.

The general result has been that challenges to the fact or duration of confinement that seek

release sound in habeas whereas actions challenging the conditions of confinement raise

concerns properly addressed under § 1983.43

But, these seemingly bright line rules are difficult to apply in practice. The near

impossibility in some cases of drawing such distinctions has become even more obvious

with COVID-19. Whereas many medical needs claims might appropriately be addressed

through § 1983 litigation, claims concerning COVID-19 are not so easily classified as §

1983 claims.

Inmates challenging BOP’s COVID-19 response challenge the dangerous conditions

within the prison created by the virus. However, the only truly effective remedy to stop the

spread is to separate individuals—a measure that in our nation’s densely populated prisons

is typically impossible without the release of a portion of the population. So, such actions

ultimately seek to challenge the fact or duration of confinement as well. 44

In this case, the Petitioners frame their action as a § 2241 habeas claim.45 The Sixth

Circuit, echoing the distinctions recognized by other courts, has found that Ҥ 2241 is not

43 See Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any

confinement or to particulars affecting its duration are the province of habeas corpus . . . requests for relief turning on circumstances of confinement may be presented in a § 1983 action.”); Heck v. Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475 (1978).

44 Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020). Two federal district courts have noted without deciding that claims such as those brought by Petitioners might be cognizable as habeas claims because the relief sought would affect the duration of confinement or because the conditions complained of could not be eliminated without releasing the inmates from detention. See A.S.M. v. Donahue, No. 7:20-CV-62, 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020); Mays, 2020 WL 1812381 at *6.

45 Whereas other petitioners bringing COVID-19-related challenges have pleaded both habeas and § 1983 claims in the alternative, Petitioners do not do so here.

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the proper vehicle for a prisoner to challenge conditions of confinement.”46 However, the

Sixth Circuit has also held Ҥ 2241 is appropriate for claims challenging the execution or

manner in which the sentence is served.”47

Petitioners’ action evades easy classification. Part of the difficulty rests in

Petitioners’ differing relief requests for the class and subclass. For the significantly

vulnerable subclass the Petitioners seek immediate release, arguing that for the medically

vulnerable inmates continued imprisonment at Elkton is unconstitutional given the COVID-

19 outbreak.

Notably, these Petitioners do not seek a commutation of their sentences, but rather

to serve their sentences in home confinement, parole, or in half-way houses at least until

the risk of the virus has abated. This claim is closer to a challenge to the manner in which

the sentence is served and is therefore cognizable under 28 U.S.C. § 2241.

For the remainder of the less-obviously-vulnerable class the challenges sound more

as a confinement conditions claim. Petitioners seek the oversight of a public health expert

to mitigate the risk COVID-19 poses to class members that remain incarcerated at Elkton.

Because the not medically vulnerable Elkton inmates seek an alteration to the confinement

conditions, the claims are more like § 1983 claims.

Because Petitioners have brought their claims as a habeas petition, the Court may

only properly address those claims suitable for habeas relief. The remainder of this order

addresses the habeas claims of the vulnerable subclass alone.

46 Luedtke v. Berkebile, 704 F.3d 465, 465-66 (6th Cir. 2013) (citing two additional Sixth Circuit

cases that found the same). 47 United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).

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B. Class Certification

Given the emergency nature of this proceeding, a class certification determination

has not yet taken place. That does not, however, preclude Petitioners from obtaining class-

wide interim relief at this stage. “[T]here is nothing improper about a preliminary

injunction preceding a ruling on class certification.”48 This Court may grant preliminary

injunctive relief to a conditional class.

As a preliminary matter, the Court finds that the Petitioners’ subclass definition is

likely too broad. Although the risk of complications from COVID-19 is serious for all

inmates, the Court limits the subclass to those identified by the CDC as being at higher

risk.49 This includes all Elkton inmates 65 years or older and those with documented, pre-

existing medical conditions, including heart, lung, kidney, and liver conditions, diabetes,

conditions causing a person to be immunocompromised (including, but not limited to

cancer treatment, transplants, HIV or AIDS, or the use of immune weakening medications),

and severe obesity (body mass index of 40 or higher).50 The subclass definition excludes

those whose only risk factor is a history of smoking, given the difficulty of documenting

such occurrence and identifying those individuals through BOP records alone.

Under Federal Rule of Civil Procedure 23(a), a class must meet the requirements of

numerosity, commonality, typicality, and adequate representation. Additionally, one of

Rule 23(b)’s requirements must also be satisfied.

48 Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402, 433 (6th Cir. 2012). 49 The Court has “broad discretion to modify class definitions.” Ball v. Kasich, 307 F. Supp.3d 701,

718 (S.D. Ohio Mar. 30, 2018). 50 CDC, Coronavirus Disease 2019: People Who Are At Higher Risk,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited April 20, 2020).

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Petitioners have made a sufficient showing at this stage to satisfy the Rule 23(a)

factors for the above-defined subclass.

Numerosity: The subclass consists of hundreds of Elkton inmates.51

Commonality: “Commonality requires [Petitioners] to demonstrate that the class

members have suffered the same injury.”52 “Their claims must depend upon a common

contention ... of such a nature that it is capable of classwide resolution—which means that

determination of its truth or falsity will resolve an issue that is central to the validity of each

one of the claims in one stroke.”53 This inquiry focuses on whether a class action will

generate common answers that are likely to drive resolution of the lawsuit.54

In this case, all subclass members have been subjected to dangerous conditions in

which they run a high risk of exposure to the deadly COVID-19 virus. The inquiry driving

the litigation is whether the BOP’s failure to create safe conditions for inmates with

especially vulnerable health has violated those inmates’ rights. Answering this question

will determine whether the inmates are entitled to movement from Elkton.

Respondents argue that the subclass lacks commonality given the class’s

combination of “inmates that have different crimes, sentences, outdates, disciplinary

histories, ages, medical histories, proximities to infected inmates, availability of a home

landing spot, likelihoods of transmitting the virus to someone at home detention,

51 In accordance with the Court’s order, dated April 17, 2020, Respondents submitted for in camera

review, lists of Elkton inmates with certain medical conditions. Although the Court cannot say with certainty the exact number of inmates who comprise the subclass, it is satisfied that the number is in the hundreds.

52 Ball, 307 F. Supp.3d at 719 (quoting Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011)).

53 In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 852-53 (6th Cir. 2013) (citing Dukes, 564 U.S. at 350).

54 Id.

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likelihoods of violation or recidivism, and dangers to the community.”55

However, the Petitioners seek varied relief that allows the BOP to make

individualized determination as to where each subclass member should be placed.

Petitioners do not seek to open the prison gates to allow its inmates to run free. In fact,

Petitioners concede that “release” might look different for different inmates. The

Petitioners acknowledge that while some inmates might be placed in home confinement

others should be furloughed and that in all instances such “release” could be temporary.56

The motivating question in the litigation is whether the subclass members’ rights are

being violated by the deteriorating conditions at Elkton. As such, the subclass can satisfy

commonality.

Typicality: “Typicality is met if the class members’ claims are ‘fairly encompassed

by the named plaintiffs’ claims.’”57 Three of the named Petitioners have documented

medical issues that are commiserate with those suffered by the subclass. The fourth named

Petitioner, Maximino Nieves, could represent that class, but not the subclass, as he attests

that he doesn’t have a serious medical history.58 Excepting Nieves, nothing suggests that

the remaining three Petitioners’ claims are distinct from those of the remainder of the

subclass. Typicality is satisfied.59

Adequate Representation: The Court is satisfied that counsel is competent to

represent the class. Additionally, the interests of the named Petitioners do not conflict with

55 Doc. 10 at 36-37. 56 Doc. 1 at 2 n. 2. 57 In re Whirlpool, 722 F.3d at 852 (citation omitted). 58 Doc. 1-8 at 2. 59 Respondents argue that the named Petitioners defy typicality because they are all ineligible for

home confinement. This contention ignores the fact that other means of removal from Elkton might be available to the named Petitioners other than home confinement, such as transfer to another facility.

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those of the other subclass members.

Having satisfied the Rule 23(a) requirements, the subclass must also demonstrate

that it meets one of the Rule 23(b) requirements. Petitioners argue that “Respondents have

acted on grounds generally applicable to all proposed Class members, and this action seeks

declaratory and injunctive relief.”60 Indeed, Respondents’ failure to protect the inmates

from the spreading virus applies to the entirety of the subclass generally and injunctive

relief is appropriate as to the subclass. Rule 23(b)(2) is therefore satisfied.

For the purposes of the preliminary injunction inquiry, the Court finds that the

subclass as defined in this order likely meets the requirements for class certification.

C. Injunctive Relief

“Four factors guide a district court’s decision to issue a preliminary injunction:

whether the plaintiffs will likely win down the road, whether an injunction would prevent

the plaintiffs from being irreparably harmed, whether an injunction would harm others,

and how the injunction would impact the public interest.”61 The Court considers each in

turn.

1. Likely Success

Petitioners’ claims are predicated on a violation of their Eighth Amendment rights

which protects them from “cruel and unusual punishments.” In order to succeed on an

Eighth Amendment claim, Petitioners must satisfy both an objective and subjective

component.62

“The objective component of the test requires the existence of a ‘sufficiently serious’

60 Doc. 1 at 31. 61 McNeil v. Community Prob. Servs., LLC, 945 F.3d 991, 994 (6th Cir. 2019). 62 Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005).

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medical need.”63 Petitioners obviously satisfy this component. At this moment a deadly

virus is spreading amongst Elkton’s population and staff. For infected inmates, the virus

can lead to pneumonia. In the worse pneumonia cases, COVID-19 victims suffer

diminishing oxygen absorption, with resulting organ failure leading to death. Victims

choke to death. While not every inmate who contracts the virus will die, the subclass

members are at a much greater risk of doing so. They have a very serious medical need to

be protected from the virus.

The subjective component requires that Respondents have acted with deliberate

indifference, “a degree of culpability greater than mere negligence, but less than ‘acts or

omissions for the very purpose of causing harm or with knowledge that harm will result.’”64

Petitioners satisfy this standard.

While Respondents offer certain prison-practice changes to show they know

COVID-19 risks and have sought to reduce those risks, the Court still finds that, at this

preliminary stage of the litigation, the Petitioners have sufficiently met the threshold for

showing that Respondents have been deliberately indifferent.

One only need look at Elkton’s testing debacle for one example of this deliberate

indifference. Additionally, Elkton has altogether failed to separate its inmates at least six

feet apart, despite clear CDC guidance for some time that such measures are necessary to

stop the spread and save lives.

Having met both prongs of the Eighth Amendment analysis, Petitioners have

demonstrated a likelihood of success on the merits.

63 Id. (citing Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004)). 64 Id. at 813 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

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2. Irreparable Harm

Respondents argue that Petitioners have not shown that release will reduce the risk

of exposure to COVID-19. But the district court cases Respondents use that have found

that release would not lessen the risk to a defendant’s health did not deal specifically with

Elkton confinement.65 Of the reported inmate deaths in nation-wide BOP custody, 6 out of

23, more than 1 in 4, has occurred at Elkton, making it a hotspot for the virus and certainly

more dangerous than other facilities.66

Respondents also argue that the Petitioners’ harm is speculative. It is true that some

subclass members may not die if they contract the virus. However, it is more than mere

speculation that the virus will continue to spread and pose a danger to inmates if BOP does

not increase its efforts to stop the spread.67 Petitioners have therefore shown a risk for

irreparable harm.

3. Harm to Others

Respondents argue that the release of inmates from Elkton “would cause substantial

damage to others” because there is no assurance that the inmates can care for themselves

upon release.68 They argue the inmates might be left without access to food, shelter, or

medical care.69

As stated previously, Petitioners do not ask this Court to throw open the gates to the

65 United States v. Taylor, No. 5:19-CR-192-KKC-MAS, 2020 WL 1501997, at *5 (E.D. Ky. Mar. 26,

2020) (noting that the Court believed that the practices at “any facility” were sufficient to protect from COVID-19); United States v. Steward, 2020 WL 1468005, at *1 (S.D.N.Y. Mar. 26, 2020) (denying release from Metropolitan Correctional Center).

66 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited April 22, 2020).

67 See Doc. 14-1 at 5-10 (describing the inadequacy of the Elkton measures and the risk of spread within the prison environment).

68 Doc. 10 at 3. 69 Id. at 3, 33-34.

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prison and leave the inmates that are released to fend for themselves. Instead, Petitioners

seek “release” that consists of moving vulnerable inmates to various other types of

confinement so that they are no longer at risk of dying from the virus. And as Respondents

acknowledge, it is BOP’s current policy to quarantine all inmates that are transferred from

Elkton for 14 days before transfer.70 The continued implementation of this policy reduces

the risk that an inmate with COVID-19 will carry the virus with him outside of the prison.

Furthermore, there is a continued risk of harm to others, including prison staff, if

inmates remain in the prison and the virus continues to thrive among the dense inmate

population.

4. Public Interest

Respondents argue that the public faces a grave danger if inmates are to be released

en masse onto the streets. They say:

Our over-burdened police and safety services should not be forced to deal with the indiscriminate release of thousands of prisoners on the streets without any verification that those prisoners will follow the laws when they are released, that they will have a safe place to go where they will not be mingling with their former criminal associates, and that they will not return to their former ways as soon as they walk through the prison gates.71 First, Respondents might as well be arguing against the release of any inmate, at any

time, for any reason, because even in the best of circumstances the country’s criminal

justice system has no way, short of life imprisonment, of ensuring former prisoners do not

recidivate. The COVID-19 pandemic has not suddenly raised this issue.

70 Doc. 10-2 at 7. 71 Doc. 10 at 41-42.

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Third, the danger of recidivism reduces with age, especially after age 40.72 The

subclass inmates are older and by definition, the vulnerable sub-class inmates suffer serious

medical conditions.

Second, it bears repeating that the Petitioners are not asking the Court to dump

inmates out into the streets. No one’s interest would be served in doing so. The Court is

confident that the transfer of prisoners from Elkton to other means of confinement could

accomplish the goal of protecting Elkton’s vulnerable population while also protecting

public safety.

Third, six Elkton inmates have already died. Likely, they died after agonizing days

under intensive care, most probably with ventilators. The BOP absorbs the high cost of this

treatment—costs that are likely multiples of what it would have cost to test each Elkton

inmate and guard.

Finally, “it is always in the public interest to prevent the violation of a party’s

constitutional rights.”73

D. The Prison Litigation Reform Act

Respondents argue that the Prison Litigation Reform Act (“PLRA”),

18 U.S.C. § 3626, bars this Court from granting the inmates’ release.74 This is not so. The

PLRA does not extend to “habeas corpus proceedings challenging the fact or duration of

confinement in prison.”75 Because the Court has determined that the subclass’s claims are

72 See generally United States Sentencing Commission, The Effects of Aging on Recidivism Among Federal

Offenders, (Dec. 2017), https://www.ussc.gov/research/research-reports/effects-aging-recidivism-among-federal-offenders. 73 G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). 74 Doc. 10 at 16. 75 18 U.S.C. § 3626(g)(2).

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properly before the Court as a habeas action, this prohibition does not apply.76

Additionally, Respondents argue that a release order may only be entered by a

three-judge court and that the court must find that “crowding is the primary cause of the

violation of a Federal right” and “no other relief will remedy the violation.”77 As stated

previously the PLRA does not bar this habeas proceeding. However, even if it did, the

Court is not ordering the release of the prisoners. Instead, the inmates will remain in BOP

custody, but the conditions of their confinement will be enlarged.

III. Conclusion

The Court GRANTS IN PART and DENIES IN PART Petitioners’ motion for relief.

The Court orders the Respondents to identify, within one (1) day all members of the

subclass as defined in this Order. Respondents must identify in the list each subclass

member’s sentencing court and the case number of their underlying criminal conviction.

Following identification, the Court orders Respondents to evaluate each subclass

member’s eligibility for transfer out of Elkton through any means, including but not limited

to compassionate release, parole or community supervision, transfer furlough, or non-

transfer furlough within two (2) weeks.

In undertaking this evaluation, Respondents will prioritize the review by the

medical threat level. For example, older inmates with heart, pulmonary, diabetes or

immunity risks should receive review priority over subclass members who are younger.

Subclass members who are ineligible for compassionate release, home release, or

76 See Colton v. Ashcroft, 299 F. Supp. 2d 681, (E.D. Ky. 2004) (“28 U.S.C. §§ 2241, 2254, and 2255

filings have been deemed not covered by the PLRA.”). 77 18 U.S.C. § 3626(a)(3)(E).

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parole or community supervision must be transferred to another BOP facility where

appropriate measures, such as testing and single-cell placement, or social distancing, may

be accomplished. In transferring subclass members, Respondents must continue to comply

with BOP policy of quarantining inmates for 14 days prior to transfer out of Elkton.

Any subclass members transferred out of Elkton may not be returned to the facility

until the threat of the virus is abated or until a vaccine is available and Elkton obtains

sufficient vaccine supplies to vaccinate its population, whichever occurs first.

IT IS SO ORDERED.

Dated: April 22, 2020 s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ANGEL DE JESUS ZEPEDA RIVAS, et al.,

Plaintiffs,

v.

DAVID JENNINGS, et al.,

Defendants.

Case No. 20-cv-02731-VC ORDER GRANTING MOTION FOR PROVISIONAL CLASS CERTIFICATION, GRANTING MOTION FOR A TEMPORARY RESTRAINING ORDER, AND DENYING MOTION FOR A STAY

A group of ICE detainees at the Mesa Verde Detention Facility and the Yuba County Jail

have filed a proposed habeas class action challenging the conditions of their confinement. They

contend they are at serious risk of becoming infected with Covid-19 because ICE has refused to

alter conditions at the facilities so as to enable people to keep their distance from one another.

The plaintiffs have filed a motion to provisionally certify a class of all detainees at the facilities,

along with a motion for a temporary restraining order requiring ICE to take measures that will

enable social distancing. The government, for its part, has moved for a stay of these proceedings

in light of a separate case in which a federal judge certified a nationwide class of immigration

detainees challenging ICE’s overall response to the pandemic. The motion for provisional class

certification is granted, as is the motion for a temporary restraining order. The motion for a stay

is denied. As described more fully below, ICE is ordered to provide information to class counsel

and to the Court to facilitate consideration of applications by detainees to be released on bail

while this case is pending. In roughly 14 days, after individual bail applications have been

processed, the Court will hold a preliminary injunction hearing to determine what measures, if

Case 3:20-cv-02731-VC Document 53 Filed 04/29/20 Page 1 of 7

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any, ICE must take to ensure social distancing and other protections for the people who remain

detained at the facilities. Because time is of the essence, and because federal courts around the

country have addressed most issues raised by these motions (including the public health threat

currently posed by crowded detainee populations and ICE’s failure to respond), this ruling

assumes that the reader is familiar with the legal arguments and factual materials submitted by

the parties.

Provisional Class Certification

1. There is nothing about the procedural posture of this lawsuit—such as the fact that it

seeks habeas relief or that it is on behalf of immigration detainees—that precludes provisional

class certification.1

2. The government’s arguments regarding commonality, typicality, adequacy, and Rule

23(b) do not defeat class certification. At root, this lawsuit is not about whether any particular

person should be released; it is about the conditions of confinement at the facilities. The primary

question is whether the people detained at those facilities are being exposed to an unreasonable

risk of infection in violation of the Due Process Clause. As the plaintiffs argue in their papers,

“class members have suffered the same injury—the substantial risk of contracting COVID-19

due to the lack of social distancing—and all class members would benefit from the same

remedy—an order requiring social distancing at Yuba and Mesa Verde.” Dkt. 41 at 3. The

likelihood that some people would need to be released as part of the effort to alleviate dangerous

conditions at the jail (presumably by prioritizing people who have health vulnerabilities and

whose records indicate they are not a danger to the community) does not change the ultimate

relief the plaintiffs seek. And therefore it is not a reason to deny provisional class certification.2

Nor, incidentally, is exposure to the virus a significant danger merely to people in high-risk

1 See Jennings v. Rodriguez, 138 S. Ct. 830, 840–41 (2018); Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010); Padilla v. ICE, 953 F.3d 1134, 1151 (9th Cir. 2020). 2 See Parsons v. Ryan, 754 F.3d 657, 689 (9th Cir. 2014); Rodriguez, 591 F.3d at 1123; Savino v. Souza, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020); cf. Saravia v. Sessions, 280 F. Supp. 3d 1168, 1203-05 (N.D. Cal. 2017), aff'd sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018); see also Brown v. Plata, 563 U.S. 493 (2011).

Case 3:20-cv-02731-VC Document 53 Filed 04/29/20 Page 2 of 7

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groups; as explained in Savino v. Souza, it is dangerous to everyone. 2020 WL 1703844, at *7.3

Temporary Restraining Order

1. The Northern District of California is the proper forum for this action, as explained in

Saravia v. Sessions, 280 F. Supp. 3d 1168, 1186–87 & n.9 (N.D. Cal. 2017), aff'd sub nom.

Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018).4

2. As many courts have explained, ICE detainees in this situation have standing to sue in

federal court.5

3. On this record, the plaintiffs have demonstrated an exceedingly strong likelihood that

they will prevail on their claim that current conditions at the facilities violate class members’ due

process rights by unreasonably exposing them to a significant risk of harm.6 There is no need to

repeat a discussion of the “tinderbox” risk of the virus spreading in crowded detention facilities.7

Nor is there need to recount the health risks posed by the virus—not just for people in high-risk

categories but for healthy people as well.8 In detention facilities throughout the nation, ICE has

failed to take sufficient action to address the obvious health risks to detainees.9 And as several

3 See also Greifinger Decl., Dkt. 5-2 at ¶ 8, 24. 4 See also Rodriguez Sanchez v. Decker, 2019 WL 3840977 (S.D.N.Y. Aug. 15, 2019); https://www.ice.gov/detention-facility/mesa-verde-ice-processing-facility, and https://www.ice.gov/detentionfacility/yuba-county-jail (identifying each facility as controlled by the “San Francisco Field Office” and specifically directing “Feedback or Complaints” to the San Francisco Field Office Director). 5 See, e.g., Franco v. Jennings, Case No. 20-cv-02474-CRB (N.D. Cal. Apr. 24, 2020), Dkt. 16 at 3-4; Bent v. Barr, Case No. 19-cv-06123-DMR (N.D. Cal. Apr 9, 2020), Dkt. 26 at 5-7; Dawson v. Asher, 2020 WL 1704324, at *8 (W.D. Wash. Apr. 8, 2020). 6 See Youngberg v. Romeo, 457 U.S. 307 (1982); Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018); Helling v. McKinney, 509 U.S. 25, 32 (1993). 7 See Greifinger Decl. ¶¶ 16-24; Hernandez Decl. ¶¶ 19-21; Basank v. Decker, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020); Bent, supra at 11; United States v. Daniels, Case No. 19-cr-00709-LHK (NC), Dkt. 24 at 5–6; Doe v. Barr, Case No. 20-cv-02141-LB (N.D. Cal. Apr. 12, 2020) Dkt. 27 at 3. 8 See Greifinger Decl. ¶ 8, 24; Hernandez Decl. ¶ 13; Savino v. Souza, 2020 WL 1703844, at *7. 9 Faour Abdallah Fraihat, et al. v. U.S. Immigrations and Customs Enforcement, et al., Case No. 5:19-cv-1546-JGB-SHK (C.D. Cal. Apr. 20, 2020), Dkt. 132 at 29-34; Roman, supra, at *3; Pimentel-Estrada v. Barr, Case No. 20-cv-00495-RSM-BAT (W.D. Wa. Apr. 28, 2020), Dkt. 51 at 31; Coronel v. Decker, 2020 WL1487274, at *4 (S.D.N.Y. Mar. 27, 2020); Basank, supra, at *3; Thakker v. Doll, 2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020); Malam v. Adducci, 2020 WL 1672662, at *12 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020); Gayle v. Meade, Case No. 20-cv-21553 (S.D. Fl. Apr. 22, 2020), Dkt. 63 at 67; Greifinger Decl. ¶¶ 44-57; Rodarte Decl. Ex A.

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4

courts in this district have already explained, the same is true of ICE’s performance at these local

facilities.10 Although ICE has recently begun taking modest measures, it is undisputed that the

agency has not come close to achieving social distancing for most detainees—for example,

people are still sleeping in barracks-style dorms within arms-reach of one another.11 What’s

more, at the hearing on these motions, counsel for ICE asserted that it will take a significant

amount of time for the agency to prepare a list of detainees with health vulnerabilities because it

is “burdensome.” The fact that ICE does not have such a list at the ready, six weeks after

Governor Newsom shut down the entire state and one week after this lawsuit was filed, speaks

volumes about where the safety of the people at these facilities falls on ICE’s list of priorities.12

4. For similar reasons, the plaintiffs have demonstrated a strong likelihood of irreparable

harm to the class.13 Although ICE notes that it has discovered no cases of Covid-19 at the two

facilities, this is not especially comforting given that only two detainees have been tested.14

Moreover, people are regularly being transported from facilities with COVID-19 cases to Mesa

Verde or Yuba County. For example, in the past several months, the Northern District of

California has seen dozens of offenders sentenced for street-level drug crimes and transported on

detainers from the Santa Rita Jail in Alameda County to these ICE facilities.

5. The public interest and the balance of hardships also counsels in favor of emergency

relief to initiate the process of mitigating health risks at the facilities. The conditions of

confinement do not merely threaten detainees; they also threaten facility staff, not to mention the

greater community whose health is put at risk by the congregation of large groups in cramped

10 Bahena Ortuno v. Jennings, Case No. 20-cv-02064-MMC (N.D. Cal. Apr. 8, 2020), Dkt. 38 at 6-7; Bent, supra, at 10-11; Doe, supra, at 16; see generally Greifinger Decl.; Greifinger Supp. Decl. 11 See Greifinger Decl. ¶¶ 34-43; Greifinger Supp. Decl. ¶ 7; Kavanagh Decl. ¶ 5; Knox Decl. ¶ 9, 16, 17; Tovar Decl. ¶ 14; Mwaura Decl. ¶ 10; Dang Decl. ¶ 13; Nunez Decl. ¶ 14; Alfaro Decl. ¶ 16; Bonnar Decl. ¶ 11(f). 12 See Hernandez Decl. ¶¶ 13-18; Greifinger Decl. ¶¶ 14-15. 13 Helling, 509 U.S. at 33; Fraihat, supra, at 36; Coronel, supra, at *2; Roman, supra, at 21; Bahena Ortuno, supra, at 7-8; Bent, supra, at 12-13; Doe, supra, at 18. 14 See Kaiser Decl. ¶ 11; Bonnar Decl. ¶ 12.

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5

spaces.15 As discussed in the next paragraph, the emergency relief ordered here—requiring ICE

to provide information and access to detainees to facilitate a process of considering bail

requests—will simply entail some hard work on ICE’s part. And of course, as bail requests are

considered, care will be taken both to avoid releasing detainees who are a danger to the

community and to minimize the possibility that released detainees will fail to appear for their

removal proceedings.

6. ICE is thus hereby ordered to provide the Court and class counsel with information and

records regarding each detainee at the facilities. This includes names, ages, any health

vulnerabilities, and any criminal information (including rap sheets and I-213 forms). ICE is also

ordered to ensure that class counsel has the ability to promptly communicate with detainees. The

purpose of this order is to enable the Court to implement a system for considering individual bail

applications, modeled after a system created and successfully implemented by Judge Young in

the District of Massachusetts.16 In extraordinary cases like this, federal judges have the authority

to release detainees on bail while their habeas cases are pending.17 Judge Young, after certifying

a class of ICE detainees at a facility in Massachusetts, considered bail requests as a precursor to a

preliminary injunction hearing. Similarly, this Court—likely with the assistance of several

Magistrate Judges—will consider bail applications from class members over a roughly 14-day

period. After that period, the parties and the Court will have a better understanding of the number

of people who will continue to be detained during the public health crisis, which in turn could

affect the relief (if any) to be ordered by way of preliminary injunction to help ensure social

15 Hernandez Decl. ¶ ¶ 22-28; Greifinger Decl. ¶ 24; Coronel, supra, at *7. 16 See Savino v. Souza, Case No. 20-cv-10617-WGY (D. Mass. Apr. 8, 2020). 17 Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Savino, supra, at 26-28; Coronel, supra, at *8; Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Cherek v. U.S., 767 F.2d 335, 337 (7th Cir. 1985); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981); In re Wainwright, 518 F.2d 173, 174 (5th Cir. 1975) (per curiam); Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972); Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969) (per curiam). See also Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989); In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001); Nadarajah v. Gonzales, 443 F.3d 1069, 1084 (9th Cir. 2006); United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016) (per curiam); Tam v. I.N.S., 14 F. Supp. 2d 1184, 1192 (E.D. Cal. 1998).

Case 3:20-cv-02731-VC Document 53 Filed 04/29/20 Page 5 of 7

6

distancing at the facilities. All information must be provided to the Court and class counsel on a

rolling basis, but by no later than Friday at noon. A case management conference will take place

Thursday at 4:00 p.m. for the purpose of assessing progress in compliance with this order,

scheduling a preliminary injunction hearing, and discussing the process by which the Court will

consider individual bail applications.18

7. ICE, while opposing any form of emergency relief, argued in its papers and at the

hearing that if the Court is inclined to grant such relief, it should take a different form.

Specifically, rather than being ordered to provide information that would permit the prompt

consideration of bail requests, ICE asks that the Court simply order the agency to release a set

number of detainees from the facilities. ICE does not specify the number of detainees it should

be told to release. It has not explained how many of the detainees would pose a danger to the

community if released. And it has not specified how many detainees would actually need to be

released to alleviate the health risks at the facilities. It seems, at first glance anyway, that ICE is

asking the Court to strike with a blunt instrument rather than using a more cautious and

methodical approach to address the constitutional problem presented by this case. But in any

event, given ICE’s failure thus far to respond meaningfully to the crisis despite the wave of court

rulings from around the country documenting the agency’s inaction, given that ICE does not

even currently possess a list of detainees with health vulnerabilities, and given the lack of

specificity in ICE’s alternative remedy proposal, it appears likely that the approach of ordering

ICE to release a random number of detainees, rather than simply ordering ICE to provide

information that will facilitate consideration of individualized bail requests, would create delay

rather than meaningful improvements in the conditions of confinement at the facilities.

Motion For A Stay Pending Related Litigation

Whether to stay a proposed class action based on the pendency of an overlapping class

18 ICE has requested a 48-hour stay of this temporary restraining order so that it can consider whether to appeal. Because this order requires ICE only to provide documents and to give class counsel access to detainees, that request is denied.

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7

action in another court is a matter of judicial discretion. A stay is not warranted here. In the

nationwide class action proceeding in the Central District of California, Judge Bernal has ordered

preliminary relief at too high a level of generality to protect the immediate interests of the class

members in this case (or, for that matter, in Judge Young’s case). See Fraihat v. ICE, Case No.

5:19-cv-1546-JGB-SHK (C.D. Cal. Apr. 20, 2020), Dkt. 132 at 38-39. It does not appear that

Judge Bernal intended, by the general nationwide relief he ordered, to interfere with the ability of

facility-specific litigation to proceed. Nor, in any event, does a nationwide class action covering

specific relief at specific facilities seem manageable. Denial of this motion is without prejudice

to raising the issue again if the cases develop in such a way as to create conflicting obligations

for ICE.

IT IS SO ORDERED.

Dated: April 29, 2020

______________________________________

VINCE CHHABRIA United States District Judge

Case 3:20-cv-02731-VC Document 53 Filed 04/29/20 Page 7 of 7

THE SUPREME COURT OF WASHINGTON

SHYANNE COLVIN, SHANELL DUNCAN,

TERRY KILL, LEONDIS BERRY, and

THEODORE ROOSEVELT RHONE,

Petitioners,

v.

JAY INSLEE, Governor of the State of Washington,

and STEVEN SINCLAIR, Secretary of the

Washington State Department of Corrections,

Respondents.

__________________________________________

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ORDER

No. 98317-8

On April 23, 2020, the Court (Judge Lisa Worswick participated as justice pro tem) heard

oral argument on the “PETITIONERS’ PETITION FOR A WRIT OF MANDAMUS” and the

“PETITIONERS’ MOTION TO AMEND PETITION FOR A WRIT OF MANDAMUS.” After

full consideration, the Court determined by majority to enter the following order with opinions to

follow.

Now, therefore, it is hereby

ORDERED:

1. “PETITIONERS’ PETITION FOR A WRIT OF MANDAMUS” is DENIED; the

Petitioners have not shown that the Respondents are currently failing to perform a

mandatory, nondiscretionary duty in addressing the COVID-19 risk at the Department of

FILED

SUPREME COURT

STATE OF WASHINGTON

APRIL 23, 2020

BY SUSAN L. CARLSON

CLERK

Page 2

No. 98317-8

ORDER

Corrections facilities, nor shown other constitutional or statutory grounds for the relief

they request.

2. “PETITIONERS’ MOTION TO AMEND PETITION FOR A WRIT OF MANDAMUS”

is DENIED; on the record presented, the Petitioners have not shown the Respondents’

actions constitute deliberate indifference to the COVID-19 risk at the Department of

Corrections facilities, and thus cannot establish unlawful restraint.

DATED at Olympia, Washington this 23rd day of April, 2020.

For the Court

___________________________________

CHIEF JUSTICE

Page 3

No. 98317-8

ORDER

No. 98317-8

GONZÁLEZ, J. (dissenting) — On April 10, 2020, we unanimously granted accelerated

review of Petitioners’ motion for immediate relief, in part. We directed the Governor and

Secretary Sinclair to immediately exercise their authority to take all necessary steps to protect the

health and safety of the named petitioners and all Department of Corrections (DOC) inmates in

response to the COVID-19 outbreak and to report to the Court in writing no later than April 13,

2020, all steps that have been taken and will be taken and their emergency plan for

implementation. We exercised our authority, by court order, to do so because this is an

extraordinary situation with grave consequences for not just those incarcerated without sufficient

safeguards, but also for the broader community.

Respondents Governor Inslee and Secretary Sinclair then filed their plan. It showed both

substantial progress and continuing problems in DOC facilities. We also received an update and

today heard oral argument regarding the ongoing challenges and responses. The majority denies

relief in the form of a writ and denies the Petitioners’ motion to amend to add a claim of habeas

corpus and/or a personal restraint petition.

We dissent because while a writ of mandamus is a limited mechanism for providing

relief, it may allow the Court to order the Executive branch to comply with its duty to protect

incarcerated individuals and to implement its own protection guidelines outlined in the April 13,

2020 and April 20, 2020 Report to the Court. Also, we would have accepted the State’s offer to

provide an updated report in two weeks on the State’s continuing progress to take all necessary

steps to protect the health and safety of DOC inmates in response to the COVID-19 outbreak,

including their ongoing plans for implementation, before deciding whether the Petitioners’

claims have merit.

Page 4

No. 98317-8

ORDER

Finally, we would grant the motion to amend to include the personal restraint petition

(PRP) claims by these five named prisoners. This court has original jurisdiction over such PRPs

and can, therefore, retain the claim as a PRP if granted. RAP 16.3(c); RAP 16.5(d); RAP 1.2(a).

Petitioners assert a claim that is cognizable under the PRP rules. E.g., RAP 16.4(c)(6). Difficult

questions would remain to be determined after granting the motion: whether these petitioners

can file on the behalf of a class, an open question in our court; and whether these petitioners (or

others in a possible class) can prevail on the merits of a PRP challenge to conditions of

confinement under the standards of either the Eighth Amendment or our state’s Article I, section

14. That does not mean that the motion to amend is futile; it means that the motion to amend

satisfies our procedural and jurisdictional prerequisites and that there are important issues of first

impression to be addressed on the merits, including issues of fact regarding the conditions of the

state’s prison during this COVID-19 crisis. Therefore, we respectfully dissent.

_______________________________

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al.,

Plaintiffs,

v.

BARBARA J. BAZRON, et al.,

Defendants.

Civil Action No. 19-3185 (RDM)

ORDER

For reasons set forth in the accompanying Memorandum Opinion, Dkt. 59, the Court

concludes that Plaintiffs have established that they are entitled to emergency injunctive relief.

Accordingly, it is hereby ORDERED that Plaintiffs’ motion for a temporary restraining order, Dkt.

39, is GRANTED in part and DEFERRED in part. It is further ORDERED that:

1. Exposed Patients. To the extent medically and psychiatrically practicable, Defendants

shall isolate individuals who have been exposed to COVID-19 in individual quarantine

spaces and shall minimize movement outside of the isolation space. When it is necessary

for isolated individuals to leave their rooms, Defendants shall require (to the extent

possible and consistent medically and psychiatrically practicable) that the isolated patient

wear a medically suitable mask. Likewise, when it is necessary for another person to

enter a room occupied by an isolated patient, that person shall (to the extent medically

and psychiatrically practicable) wear suitable protective equipment, including a medically

suitable mask. The parties shall meet and confer and submit to the Court a joint status

report on or before April 28 at 2:00 pm setting forth their respective positions about when

to discontinue isolation of exposed persons. In any event, isolation of a patient who has

Case 1:19-cv-03185-RDM Document 60 Filed 04/25/20 Page 1 of 3

2

been exposed to COIVD-19 may discontinued after the patient receives two negative tests

at least 24 hours apart or if the patient is not symptomatic for 14 days.

2. Symptomatic Patients. Defendants shall conduct clinical evaluations prior to

releasing patients suspected of having COVID-19 (i.e., symptomatic patients) from

isolation, and, if “a higher clinical suspicion” for COVID-19 exists, Defendants shall

administer test-based criteria of two negative tests, at least 24 hours apart, prior to

discontinuing isolation. In determining whether the patient presents a higher clinical

suspicion for COVID-19, Hospital staff shall consider the prevalence of the virus

among patients and staff at the Hospital, among other factors. If testing is not readily

feasible, Defendants shall administer the CDC recommended non-test-based strategy.

3. Reporting. Defendants shall provide the Court and Plaintiffs’ counsel with reports twice

a week, commencing on Tuesday, April 28, 2020 and Friday, May 1, 2020, detailing their

efforts to comply with this Order. The report should identify every symptomatic patient

removed from isolation and the basis for the decision to remove that individual from

isolation and shall indicate the number of exposed patients subject to isolation.

4. Expiration. This Order shall expire at 11:59 pm on May 8, 2020, unless extended for

good cause before that time.

5. Security. The Court finds that the posting a bond is not required given the nature of the

relief ordered herein.

Case 1:19-cv-03185-RDM Document 60 Filed 04/25/20 Page 2 of 3

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6. Persons and Entities Bound. This Order is binding on Defendants, their officers, agents,

servants, employees, and attorneys, and on other persons acting in concert with them.

SO ORDERED.

/s/ Randolph D. Moss

RANDOLPH D. MOSS

United States District Judge

Date: April 25, 2020

Case 1:19-cv-03185-RDM Document 60 Filed 04/25/20 Page 3 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al.,

Plaintiffs,

v.

BARBARA J. BAZRON, et al.,

Defendants.

Civil Action No. 19-3185 (RDM)

MEMORANDUM OPINION

This case is brought by three patients indefinitely and involuntarily civilly committed to

the District of Columbia’s care and housed at Saint Elizabeths Hospital (“Saint Elizabeths” or

“Hospital”), a public psychiatric facility, and a putative class of Saint Elizabeths patients. Dkt.

50. Plaintiffs bring claims against the District of Columbia and two employees of Saint

Elizabeths in their individual capacities (and in one case, also in his official capacity), alleging

that Defendants’ response to the COVID-19 pandemic has fallen short of their constitutional

obligations to ensure that Plaintiffs and the putative class members are held in safe conditions.

Before the Court is Plaintiffs’ motion for a temporary restraining order (“TRO”), which is

opposed. Dkt. 39. For the reasons explained below, the Court will grant the motion in part and

defer it in part.

I. BACKGROUND

A. Saint Elizabeths, and COVID-19

Saint Elizabeths is the District of Columbia’s “only public psychiatric facility for

individuals with serious and persistent mental illness who need intensive inpatient care to

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2

support their recovery.” Dkt. 50 at 7 (Am. Compl. ¶ 25); Dkt. 39-2 at 2 (Jones Decl. ¶ 7). Saint

Elizabeths generally admits three categories of patients: (1) civilly committed patients, including

those committed voluntarily and involuntarily; (2) pre-trial patients being detained to determine

their competency to stand trial or to have their competency restored; (3) and post-trial patients

who have been adjudicated not guilty by reason of insanity. See Dkt. 39-1 at 14; Dkt. 42-1

(Candilis Decl. ¶ 3). The Hospital has the capacity to house 292 patients in 12 different units and

has an average population of 275 patients. Dkt. 42-2 at 3 (Gontang Decl. ¶ 6). The “patients are

housed in one of 11 units[] or houses,” with each unit consisting of “bedrooms and commons

spaces.” Dkt. 50 at 8 (Am. Compl. ¶ 33). “Each unit at the Hospital generally houses no more

than 27 patients, and has bedrooms, common living areas, bathrooms and showering facilities,

and dining areas.” Dkt. 42-2 at 3 (Gontang Decl. ¶ 6). The twelfth unit, the Therapeutic

Learning Center (“2TR”), is generally used to conduct group therapy, art therapy, music therapy,

treatment planning meetings, and other forms of congregate activities. Dkt. 50 at 4 (Am. Compl.

¶ 9). According to Defendants’ counsel, the current population has been reduced to

approximately 200 patients due to the pandemic. Apr. 24, 2020 Hrg. Tr. (Rough at 31).

The COVID-19 pandemic is, by now, well-known to all, and the Court will only briefly

recount its history and impact as it relates to this motion. COVID-19 a highly infectious disease

that has caused a global pandemic, prompting the President and governors across the nation to

declare states of emergency. See United States v. Harris, No. 19-cr-356, 2020 WL 1503444, at

*2 (D.D.C. Mar. 27, 2020). The Mayor of the District of Columbia has ordered the closure of all

nonessential business and has issued a stay-at-home order, and both Congress and the D.C.

Council have passed various forms of emergency legislation. See, e.g., Mayor’s Order 2020-054

(Mar. 30, 2020).

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 2 of 18

3

The Centers for Disease Control and Prevention (“CDC”) has issued guidance to help

long-term care facilities (“LCTFs”) mitigate the spread of the virus and to “keep patients and

residents safe[.]” CDC, Coronavirus Disease 2019 Nursing Homes & Long-Term Care Facilities

(“CDC, LTCF Guidance”), at 1 (Apr. 2, 2020), available at https://tinyurl.com/yaaj8kk6 (last

accessed Apr. 23, 2020); see Dkt. 55-1 (CDC, Preparing for COVID-19: Long-term Care

Facilities, Nursing Homes, Apr. 15, 2020); CDC, Key Strategies to Prepare for COVID-19 in

Long-term Care Facilities (LTCFs) (“CDC, LTCFs Key Strategies”) (Apr. 15, 2020), available at

https://tinyurl.com/y95jrlcx (last accessed Apr. 23, 2020). Although the LTCF guidance is

targeted at nursing homes and similar facilities, all agree that it provides relevant guidance for

Saint Elizabeths. See Dkt. 42-2 at 3 (Gontang Decl. ¶ 5) (“Saint Elizabeths is unique among

healthcare facilities in that it is foremost a psychiatric treatment facility but also houses pre- and

post-trial patients and shares similarities with long-term care nursing facilities.”); Dkt. 42 at 10–

11 (citing to LTCF guidance and recommendations as the standards the Hospital has conformed

its practices and policies to). The CDC has also issued recommendations for health care settings

more generally, which the long-term care facility resources incorporate by reference. See, e.g.,

Dkt. 54-1 (CDC, Interim Infection Prevention and Control Recommendations for Patients with

Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings); Dkt.

54-2 (CDC, Discontinuation of Transmission-Based Precautions and Disposition of Patients with

COVID-19 in Healthcare Settings (Interim Guidance)). Finally, the CDC has issued guidance

regarding managing the pandemic at correctional and detention facilities. See Dkt. 55-2 (CDC,

Interim Guidance on Management of Coronavirus Disease 2019 ((COVID-19) in Correctional

and Detention Facilities). Each party has, at times, pointed to portions of that guidance in

support of it positions.

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4

As relevant here, the CDC recommends that long-term care facilities actively screen all

residents and anyone entering the building for fever and symptoms. CDC, LCTF Key Strategies.

To prevent the spread of the virus, “group activities and communal dining” should be canceled,

social distancing should be enforced among residents, and residents should “wear a cloth face

covering . . . whenever they leave their room or are around others.” Id. If a resident is

symptomatic, the facility should isolate him and implement appropriate “transmission-based

precautions.” Id. Those precautions include isolating patients who are suspected of having or

who have tested positive for COVID-19 “in private rooms with the door closed and with private

bathrooms (as possible).” Dkt. 54-1 at 2. If the patient is COVID-19 positive, she should remain

in isolation until either (1) fever has subsided “without the use of fever-reducing medications,”

the patient experiences “[i]mprovement in respiratory symptoms,” and the patient has received

“at least two consecutive” negative tests at least “24 hours apart,” or (2) “[a]t least 3 days (72

hours) have passed since recovery” (meaning “resolution of fever without the use of fever-

reducing medications and improvement in respiratory symptoms ”) and “[a]t least 7 days have

passed since first symptoms appeared.” Dkt. 54-2 at 3 (emphasis in original). A patient who has

not tested positive but who is “suspected of having COVID-19” may instead be released “upon

having negative results from” one test, but, if “a higher level of clinical suspicion . . . exists,” the

facility must “consider maintaining [medical isolation]” and performing “a second test.” Id. at 4.

B. Procedural History

Plaintiffs, Enzo Costa, Vinitia Smith, and William Dunbar, are three patients who are

indefinitely and involuntarily civilly committed to the District’s care and housed at Saint

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 4 of 18

5

Elizabeths. Dkt. 36-1 at 6–7 (Am. Compl. ¶¶ 19–22).1 Plaintiffs originally brought this putative

class action in October 2019, asserting due process and Americans with Disability Act (“ADA”),

42 U.S.C. §12131 et seq., claims relating to a September 2019 water outage at Saint Elizabeths

that interrupted their recommended therapy and subjected them to allegedly unhealthy

conditions. Dkt. 1. In light of the ongoing COVID-19 crisis, Plaintiffs filed an emergency

motion seeking leave to amend their complaint, and, after conducting a hearing and providing

Defendants with the opportunity to file an opposition brief, the Court granted that motion. See

Dkt. 48; Dkt. 36; Dkt. 40; Minute Entry (Apr. 17, 2020).

According to the amended complaint, Saint Elizabeths has failed to protect the health and

safety of its patients from the virus by departing from applicable CDC guidelines in several key

ways. Most pressingly, Plaintiffs alleged that the Hospital was not testing all symptomatic

patients; not segregating patients who have been exposed or potentially exposed to the virus from

other residents; see Dkt. 50 at 21–25 (Am. Compl. ¶¶ 78–108); and “cohorting” patients who

have tested positive or are suspected of having the virus in groups rather than medically isolating

them in private rooms, see Apr. 22, 2020 Hrg. Tr. (Rough at 4–5). As of April 23, 2020, 111

individuals associated with the Hospital (68 staff and 43 patients) have tested positive for the

virus, and, tragically, seven patients and two staff members have died. Dkt. 53; Dkt. 58; Apr. 22,

2020 Hrg. Tr. (Rough at 3) (indicating that, as of this morning, one of the named plaintiffs has

tested positive). Thus, the Hospital’s mortality rate is magnitudes higher than the mortality rate

for the District as a whole. See Dkt. 53 at 3; Apr. 22, 2020 Hrg. Tr. (Rough at 45).

1 The Court dismissed the claims of a fourth named plaintiff, Stefon Kirkpatrick, pursuant to

Federal Rule of Civil Procedure 41(a)(1)(ii). See Dkt. 43; Minute Order (Apr. 22, 2020).

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 5 of 18

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Plaintiffs also challenge the adequacy of Defendants’ response to the virus on several

other scores, including that the Hospital is not adequately enforcing social distancing, see Dkt.

46 at 9–10; not taking steps to ensure that the patients receive the mental health care they require

(such as by providing remote substitutes for group and individual therapy); not updating mental

health treatment plans to account for pandemic-related stress, see Dkt. 50 at 25–26 (Am. Compl.

¶¶ 109–16); not maintaining adequate staffing levels; id. at 26–27 (Am. Compl. ¶¶ 117–22);

continuing to admit new patients; failing adequately to screen and to quarantine newly admitted

patients; and discriminating against Plaintiffs and the putative class members in violation of the

ADA by failing to release eligible patients into community-based programming, see id. at 46

(Am. Compl. ¶ 228). Overall, Plaintiffs allege that the Hospital’s inadequate response to the

COVID-19 pandemic, like Defendants’ response to the September 2019 water outage, has fallen

short of its obligation to ensure that Plaintiffs and other patients at the hospital are held in

humane conditions and continue to receive appropriate mental health treatment. See id. at 27–28

(Am. Compl. ¶¶ 123–29); Dkt. 1.

On April 22, 2020, the Court held a telephonic hearing on the pending motion for a

temporary injunction. Given the ongoing and escalating emergency at the Hospital, the Court

asked counsel for Plaintiffs to identify the actions that, in their view, need to be redressed “on the

most pressing basis.” Apr. 22, 2020 Hrg. Tr. (Rough at 63). Counsel indicated that the top

priority was that the Hospital follow CDC guidance on “properly quarantining and isolating”

patients, meaning that the Hospital should “stop cohorting suspected people” and that it should,

instead, place patients who have tested positive, who are suspected of having the virus, or who

have been exposed to the virus in private rooms for 14 days (or earlier under the appropriate

guidelines), rather than placing them in group settings. Id. (Rough at 43–47). Counsel also

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stressed the importance of following CDC guidelines recommending that persons in quarantine

or isolation make appropriate use of face masks. Id. (Rough at 49). Finally, counsel emphasized

that the Hospital should test all symptomatic patients. See id. (Rough at 44).

Recognizing both the need for expedition and the expertise of the Hospital’s medical and

psychiatric staff and the parties’ experts, the Court directed that the parties meet and confer

within 24 hours regarding these top priority issues and file a joint status report within hours of

their meeting, notifying the Court whether the parties agree or disagree on these issues and

explaining the basis for any disagreement. Id. (Rough at 65). The Court further directed that the

parties include their medical and psychiatric experts in those discussions. As the Court

understood the parties’ respective positions, all agreed that the Hospital should follow CDC

guidelines. Thus, the goal of the conferral process was to determine whether there are any

pressing areas where the Hospital is not doing so and to identify any disagreements between the

parties regarding what the guidelines require or what the Hospital is doing.

On April 23, 2020, the parties file the required joint status report. Dkt. 53. As reflected

in that report, the parties now agree that individuals who have tested positive or who are

suspected of having COVID-19 “should be housed in their own rooms with bathrooms, and their

movements outside their rooms should be kept to a minimum.” Id. at 2. The parties were also

able to resolve a confusion over their different uses of the term “cohorting.” Dkt. 53 at 7. But

several points of disagreement remain. Most notably, the parties disagree about (1) whether a

patient who has been exposed to someone who has tested positive for the virus, but who is not

symptomatic, should be medically isolated, and (2) whether medically isolated patients should be

released to the general population after only one negative test. Id. at 4. Plaintiffs also have

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lingering concerns about the adequacy of the Hospital’s policies regarding social distancing,

mask use, and the provision of psychiatric care during the crisis. Id.

The next day, the Court held another telephonic hearing to address the urgent issues as to

which the parties still disagreed. Counsel for the plaintiffs identified two. The first is

Defendants’ “practice[] of keeping together in the same units patients who have and have not

been exposed” to the virus, and the second is the Hospital’s practice of releasing positive or

suspected patients back into the general population after a single negative test. See Apr. 24,

2020 Hrg. Tr. (Rough at 2). As to the first issue, counsel for the Plaintiffs stressed that the

matter is not merely abstract and that one of the named plaintiffs had been placed in a

“congregate setting” with other patients that “may have been exposed” and that (as the parties

learned early this morning) he has now tested positive for the virus. Id. (Rough at 2–3). When

the Court asked counsel for the Defendants whether the Hospital agreed that sound “professional

judgment means that [a person exposed to the virus] ought to be closely monitored and

. . . should be isolated to the extent practicable,” he responded that “the Hospital would agree

with that [proposition], [and] . . . that’s exactly what they’re doing.” Id. (Rough at 35–36)

(emphasis added).

As to the second issue, counsel for the Plaintiffs conceded that there is no “guidance

saying two clean tests [are needed] for people who are exposed” and that the “heart of the

dispute” was whether persons who are “suspected” of having the virus—that is, those who are

symptomatic—should be released from isolation after a single negative test. Id. (Rough at 36–

37). In Plaintiffs’ view, CDC guidance recommends that those suspected of having virus (like

those with positive test results) remain in isolation until they receive two negative tests, at least

24 hours apart. Id. (Rough at 37–38). Defendants disagree and take the position that the

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applicable CDC guidance requires only one negative test result before “the quarantined

individual should be released from quarantine restrictions.” Id. (Rough at 41). Counsel for

Defendants reported, however, that the Hospital has acquired on-site testing capacity that

“should make [the double-test] approach” feasible to implement and that his understanding is

that there are ample supplies for testing. Id. (Rough at 42–43). That equipment, which Counsel

reported would be imminently placed in use, will provide results within approximately fifteen

minutes. See Apr. 22, 2020 Hrg. Tr. (Rough at 17).

II. LEGAL STANDARDS

A TRO is “an extraordinary form of relief.” Banks v. Booth, No. 20-cv-849, 2020 U.S.

Dist. LEXIS 68287, at *7 (D.D.C. Apr. 19, 2020). A TRO is analyzed using the same “factors

applicable to preliminary injunctive relief,” and “may only be awarded upon a clear showing that

the plaintiff is entitled to such relief.” Id. (quoting Sibley v. Obama, 810 F. Supp. 2d 309, 310

(D.D.C. 2011)). To obtain a TRO, a movant “must establish [1] that he is likely to succeed on

the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3]

that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”

Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). When seeking such relief, “the movant

has the burden to show that all four factors, taken together, weigh in favor of the injunction.”

Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar.

Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)) (internal quotation marks omitted). Before the

Supreme Court’s decision in Winter v. NRDC, 555 U.S. 7 (2008), courts in this circuit applied a

“sliding-scale” approach under which “a strong showing on one factor could make up for a

weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). Since

Winter, the D.C. Circuit has hinted on several occasions that “a likelihood of success is an

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independent, free-standing requirement,” id. at 393 (quotation omitted), but it “has not yet

needed to decide th[e] issue,” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7 (D.C.

Cir. 2016). “In light of this ambiguity, the Court shall consider each of the [four] factors and

shall only evaluate the proper weight to accord the likelihood of success if the Court finds that its

relative weight would affect the outcome.” Banks, 2020 U.S. Dist. LEXIS 68287, at *7.

III. ANALYSIS

A. Likelihood of Success On The Merits

The Court first considers whether Plaintiffs have established a likelihood of success on

the merits. For present purposes, the relevant question is whether Defendants’ response to the

COVID-19 pandemic violates Plaintiffs’ rights under the due process clause of the Fifth

Amendment.

To start, the Court concludes that the operative standard is the one set forth in Youngberg

v. Romeo, 457 U.S. 307 (1982). In Youngberg, “the Supreme Court held that the State [or, in this

case, the District of Columbia] has an affirmative duty to ensure the safety and general well-

being of an involuntarily committed mental patient.” Harvey v. D.C., 798 F.3d 1042, 1050 (D.C.

Cir. 2015). Civilly committed persons have a constitutional right, protected by the due process

clauses of the Fifth and Fourteenth Amendments, in the government meeting that obligation.

Youngberg, 457 U.S. at 319. To determine if that right has been violated, a court must balance

the plaintiff’s interests “against any relevant state interests, including fiscal constraints and

administrative burdens.” LaShawn A. v. Dixon, 762 F. Supp. 959, 994 (D.D.C. 1991), aff’d and

remanded sub nom. LaShawn A. by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993) (citing

Youngberg, 457 U.S. at 321). To assess whether the government has met its obligation, the

Court must consider “whether [it has] exercised professional judgment in choosing what action

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to undertake.” Id. “[L]iability may be imposed only when the decision by the professional is

such a substantial departure from accepted professional judgment, practice, or standards as to

demonstrate that the person responsible actually did not base the decision on such a judgment.”

Id. (quoting Youngberg, 457 U.S. at 323).

Defendants concede, and Plaintiffs agree, that courts have generally applied Youngberg’s

“professional judgment” standard to cases concerning civilly committed psychiatric patients. See

Dkt. 42 at 31 (citing Jordan v. District of Columbia, 161 F. Supp. 3d 45, 57 (D.D.C. 2016), aff’d,

686 F. App’x 3 (D.C. Cir. 2017)). Plaintiffs also rely on the line of cases analyzing the

substantive due process rights of pre-trial detainees, arguing that they can establish a

constitutional violation if “the Defendants knew or should have known that the [Hospital]

conditions posed an excessive risk to [Plaintiffs’] health.” Dkt. 46 at 12 (quoting Banks v. Booth,

No. 1:20-cv-849-CKK, ECF No. 51 (Apr. 20, 2020)). To the extent Plaintiffs argue that the pre-

trial detainee standard governs because the proposed class includes pre-trial detainees, that

contention is premature. Although Plaintiffs have filed a motion to certify a class consisting of

all persons confined at the Hospital, including pre- and post-trial detainees, the Court need not

rule on that motion at this point in the litigation. The alleged violations impact or threaten to

impact each of the named plaintiffs and the requested relief, which is Hospital-wide, is necessary

to redress their risk of serious injury. If Plaintiffs, instead, mean that the standard also applies to

civilly committed individuals, they have cited no authority for that proposition and, under the

pressing time constraints of this motion, the Court has found none. In any event, as a practical

matter and on the fact of this case, there is little difference between the two standards. See

Porter v. Illinois, 36 F.3d 684, 688 (7th Cir. 1994), abrogated on other grounds, Lapides v. Bd.

of Regents of Univ. Sys. of Georgia, 535 U.S. 613, (2002) (“[P]rofessional judgment, like

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recklessness and gross negligence, generally falls somewhere between simple negligence and

intentional misconduct.”).

Applying the Youngberg test, Defendants argue that “Plaintiffs cannot point to any

decisions that were not based on professional judgment” because Saint Elizabeths has exercised

appropriate judgment in deciding how to respond to the pandemic. Dkt. 42 at 37. Plaintiffs

respond that the Hospital has failed properly to implement relevant CDC guidance and that the

Hospital’s departures violate their constitutional rights. To be sure, Plaintiffs acknowledge that

the Hospital is now following many CDC recommendations, but they assert that this new-found

conformity happened only after they filed the motion for a TRO. Dkt. 53 at 3. And, more

importantly, they contend that the Hospital is still failing to follow CDC guidance in at least two

critical respects: First, the Hospital is releasing persons suspected of having the virus from

medical isolation after only one negative test, rather than the recommended two tests. See Apr.

24, 2020 Hrg. Tr. (Rough at 45) (“The rub of what we’re concerned about is the idea that people

who are suspected could be cleared with one test.”). Second, the Hospital is not isolating

individuals who have been exposed to the virus, thus risking that those individuals infect other

non-exposed patients or that they come into contact with other exposed individuals who are now

carrying the virus. Dkt. 53 at 4.

As an initial matter, the Court observes that, although decisions made by professionals

are “presumptively valid” under Youngberg, it is unclear whether that presumption applies here.

Defendants have not identified the person or persons who have decided to implement these

policies, and so the Court cannot say with any certainty that they satisfy the definition of

“professional” articulated in Youngberg. To be sure, there is evidence in the record that the

Hospital’s COVID-19 response is being overseen by medical professionals, including Dr.

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 12 of 18

13

Richard Gontang, the Chief Clinical Officer, see Dkt. 42-2, Martha Pontes, the Chief Nurse, see

42-4, and Yi-Ling Elaine Tu, the Infection Control Coordinator, 42-5. But, even assuming, that

the decisions are entitled to the presumption of validity, Plaintiffs have offered compelling

evidence (on the extremely expedited schedule governing their motion for a TRO) that the

challenged practices substantially depart from accepted professional standards.

According to Defendants, the Hospital has already addressed the first pressing issue that

Plaintiffs raise—the alleged failure to isolate patients exposed to the virus—by treating all units

as “quarantined.” See Dkt. 53-2 at 2 (“Currently, all units other than isolation units and PUI

units are under quarantine”); Apr. 24, 2020 Hrg. Tr. (Rough at 13–14). The problem with that

assertion is that Defendants’ implementation of the quarantine does not satisfy CDC standards.

The CDC recommends that long-term care facilities “[e]nforce social distancing among

residents,” “[e]nsure all residents wear a cloth face covering . . . whenever they leave their room

or are around others,” and, if the virus “is identified in the facility, restrict all residents to their

rooms[.]” CDC, LCTFs Key Strategies. Plaintiffs have offered ample evidence that the Hospital

has taken a less demanding approach to enforcing social distancing and mask use, that common

spaces are open, and that patients are not remaining in their rooms to the extent practicable. See,

e.g., Dkt. 39-6 at 1 (Costa Decl. ¶¶ 4–5); Dkt. 39-9 at 1–2 (Guzman Decl. ¶ 3); Dkt. 39-10 at 1

(Rose Decl. ¶ 5). As Plaintiffs’ counsel put it, the Hospital is “not insisting that [patients] stay in

their rooms to the extent practicable, they’re not shutting down common areas or common

facilities for this population. Mask use is still intermittent. Social distancing enforcement is still

intermittent.” Apr. 24, 2020 Hrg. Tr. (Rough at 9). Much of Defendants’ own evidence is

consistent with Plaintiffs’ narrative. Staff for the Hospital attest, for example, that, although

there is enough space “for each patient to practice social distancing if he or she chooses to do

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 13 of 18

14

so,” it “is difficult to enforce without impinging on patient autonomy.” Dkt. 42-2 at 5 (Pontes

Decl. ¶ 10). Defendants also attest that, although “[a]ll patients have access to face masks,”

“[s]ome . . . choose to wear masks, others do not.” Id. at 6 (Pontes Decl. ¶ 6). And they assert

that, although patients “in quarantine units are encourage to stay in their rooms as much as

possible,” they are “not prohibited from using common areas.” Dkt. 53-2 at 2.

The Court is cognizant that there may be sound medical reasons why some of these

measures should not be stringently enforced in the context of a psychiatric hospital and that the

(fast evolving) record is not developed on this point. Counsel for the Defendants has noted on

multiple occasions that the Hospital must balance the unique mental health needs of the patients

confined at the Hospital, and the Court understands that need. Nor is it the Court’s place to

micromanage the Hospital’s hour-by-hour and patient-by-patient medical and psychiatric

decisions. But Defendants have offered no explanation why patients who have been exposed to

the virus are not more closely monitored to ensure that they are isolated to the extent consistent

with patient health and well-being. Defendants acknowledge that persons who have been

exposed should be closely monitored and placed in “a separate observation area,” Dkt. 53-3 at 2,

and that accepted professional judgment is that such persons should be isolated to the extent

practicable. Apr. 24, 2020 Hrg. Tr. (Rough at 35–36). And yet the evidence currently before the

Court indicates the Hospital is not robustly implementing those measures. As Plaintiffs’ counsel

indicated, this is not a mere abstract disagreement; the risks to Plaintiffs are immediate and

manifest. If exposed to a contagious patient, Plaintiffs may—and in one case, already has—

contract the virus.

The Hospital’s policy of “immediately” returning patients suspected of having the virus

to the general population after a single negative test result is also contrary to accepted

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 14 of 18

15

professional standards. See Dkt. 42-3 at 29; Dkt. 53 at 4; id. at 11 (“If the test results are

negative, the patient is returned to the general housing unit.”). As a threshold matter, the parties

disagree about the relevant CDC guidance. Defendants say that the guidance applicable to

healthcare settings should govern, Dkt. 54-2, while Plaintiffs posit that CDC guidance directed at

detention facilities sets forth the operative standard, Dkt. 55-2. In Plaintiffs’ view, the latter is

more apt because the Hospital is a congregate setting where patients are involuntarily detained;

by contrast, in a typical hospital setting, patients may voluntarily depart and self-quarantine at

home. See Apr. 24, 2020 Hrg. Tr. (Rough at 7).

The Court need not decide this issue, however. Even assuming that the guidance

Defendants rely upon is the operative one, they are not following it. Although that guidance

states that a patient suspected of having the virus can be released “upon having negative results

from at least one test,” it also says that, if there is a “higher level of clinical suspicion,” it is

recommended that the patient remain in isolation and that a “second test” be performed. Dkt. 54-

2. That guidance is consistent, moreover, with the expert testimony offered by the Plaintiffs.

Plaintiffs offer declarations from Dr. Marc Stern, a “board-certified internist specializing” and

former Assistant Secretary of Health Care for the Washington State Department of Corrections.

Dkt. 39-3 at 1 (Stern Decl. ¶ 1). Dr. Stern attests that symptomatic patients should not be

released from isolation “based solely on one [negative] test” because “[t]here is a high rate of

false negatives and decisions should be made based on a full clinical evaluation of the patient.”

Dkt. 46-2 at 2 (Stern. Suppl. Decl. ¶ 7). Defendants have offered no evidence that they are

evaluating patients who have received a negative test for “clinical suspicion” prior to release, and

Defendants own evidence shows that they are releasing patients “immediately” to the general

housing units after a single negative test. Dkt. 42-3 at 29. Nor have Defendants explained why

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 15 of 18

16

all symptomatic patients at the Hospital do not meet the higher-level-of-clinical-suspicion

benchmark, given the large percentage of infected patients and staff at Saint Elizabeths. Indeed,

out of a total patient population of between 200 and 275, at least 42 patients have tested positive

to date, along with at least 68 staff members. Even under the guidance relied upon by

Defendants, the Hospital’s protocol for returning symptomatic patients to the general population

is not consistent with CDC standards.

The Court acknowledges that additional development of the record might show that

Defendants are taking sufficient precautions not evident on the current record. The Hospital’s

response, moreover, is evolving as the crisis continues to evolve, and, indeed, the Hospital has

indicated that it is increasing its testing capacity and has expressed an intention to abide by the

CDC guidelines. On the current record, however, the Court finds that Plaintiffs have established

a likelihood of success on the merits with respect to the two priority issues that it raises for

purposes of this emergency motion.

B. Irreparable Harm

Plaintiffs contend that the deprivation of constitutional rights, even for minimal period of

time, “unquestionably constitutes irreparable injury.” Dkt. 39-1 at 34 (quoting Mills v. District

of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). And, Plaintiffs further point to the

imminent risk to their health, which also constitutes an irreparable injury. Defendants do not

dispute either point and, instead, argue that Plaintiffs will not suffer irreparable injury because

“Saint Elizabeths is already taking the overwhelming majority of the measures [P]laintiffs

request.” Dkt. 42 at 25. But Plaintiffs have continued to pursue the issues addressed in this

opinion precisely because Saint Elizabeths has declined to modify its protocols even after

meeting and conferring with Defendants to discuss their concerns. Given the gravity of

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 16 of 18

17

Plaintiffs’ imminent risk of injury, and the pressing need to act to prevent that risk, the Court

finds that Plaintiffs have satisfied the irreparable harm requirement for issuance of a temporary

restraining order. See AlJoudi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005) (“Facing requests

for preliminary injunctive relief, courts often find a showing of irreparable harm where the

movant’s health is in imminent danger.”)

C. Balance of Hardships and Public Interest

The Court moves to the final factors to be considered in granting a temporary restraining

order—the balance of the equities and the public interest. In this case, where the government is a

party to the suit, the harm to defendants and the public interest merge and “are one and the same,

because the government’s interest is the public interest.” Pursuing America’s Greatness v. FEC,

831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original). The Court finds that the public

interest weighs in favor of granting temporary injunctive relief.

As a starting point, “[i]t is always in the public interest to prevent the violation of a

party’s constitutional rights.” Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C.

2012) (internal quotation marks omitted). Beyond protecting Plaintiffs’ rights, ordering

Defendants to take precautions to lower the risk of infections for Plaintiffs also benefits the

public health. As the record in this case demonstrates, continued spread of the virus at Saint

Elizabeths threatens the health and lives of patients and staff.

Of course, the Court recognizes that there is also a “public interest in permitting the

government discretion to carry out its authorized functions,” Banks, 2020 U.S. Dist. LEXIS

68287, at *48, and that interest is acute where medical and psychiatric staff must make prompt,

individualized, and informed decisions about the health and well-being of their patients. But

here, the burden on that interest is minimal. Defendants have already expressed a desire to

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 17 of 18

18

follow the CDC guidelines, and the Court’s order will simply require them to make good on that

aspiration. Nor is this a case where the ordered relief will require the Defendants to expend

resources acquiring means to comply with the order. Just a few days ago, Defendants received a

“rapid test machine” that will “facilitate more testing.” Dkt. 53-2 at 2. Moreover, by mitigating

the spread of infection, “Defendants actually lessen the healthcare burden that they will be facing

in the weeks and months to come.” Banks, 2020 U.S. Dist. LEXIS 68287, at *48. Finally, the

Court will tailor its order to ensure that it does not interfere with the ability of medical and

psychiatric professionals to make decisions on-the-spot about the health and well-being of their

patients. The Court, accordingly, finds that the balance of the equities and the public interest

weigh in favor of granting injunctive relief.

CONCLUSION

For the reasons explained above, the Court will grant in part and defer in part Plaintiffs’

motion for a temporary restraining order.

A separate order will issue.

/s/ Randolph D. Moss

RANDOLPH D. MOSS

United States District Judge

Date: April 25, 2020

Case 1:19-cv-03185-RDM Document 59 Filed 04/25/20 Page 18 of 18

Current Inmates 65 Years and Older by FacilityNMCD Number and Name

IPRA# 20-255

CENTRAL NEW MEXICO CORR. FACILITY

CNMCF LEVEL INMCD# Name 86870 HIXON, JOEL MCKAY 37528 MUNOZ, DEMETRIO 84180 OWSLEY, RODNEY DEE

3Facility Total:

CNMCF LEVEL IINMCD# Name 67255 ALBERT, EMERSON 35766 ALTGILBERS, THOMAS 76160 ALVAREZ, PABLO 67794 AMAYA, MARGARITO 82904 ANDERSON, SPENCER TRACY 64525 ARREQUIN, TITO 83909 BACA, BENJAMIN 65885 BARRETT, BILLY 80538 BELL, ROBERT BYRON 35368 BORUNDA, ALBERT CHAVEZ 73655 BOWEN, PHILLIP 76776 BREWINGTON, RONALD ALVIN 80341 CAMPBELL, JOHN RYAN 72705 CARRUTH, JOHN ANDREW 24922 CARVER, WILLIAM ROY 30058 CHAVEZ, JAMES S 42192 CHAVEZ, MIGUEL 67740 CHAVEZ, THOMAS ANTONIO 42970 CHEE, FLOYD C 79425 CHESTER, ROBERT GENE 71091 CONTRERAS, ARMANDO 76797 CRAIG, ROBERT ROLAND 41748 DIAZ, ROBERT 72894 ELLIOTT, KENNETH C 85713 FERDICO, ANTHONY 63484 GARCIA, JOSE ADAN 75648 GONZALES, GUILLERMO 78773 HANSON, JACKIE LEE 84646 HARGRAVE, GREGG MINTER 77185 HARPER, DAVID PALMER 52326 HAUGH, JAMES GORDON 28025 HELLER, RANDY JOE 74724 HOBSON, FLOYD MARTENSE 51289 HODGES, BILLY 78906 HUERTA, PEDRO 56558 HUNNICUTT, KENNETH 37374 JASPER, EUSEBIO 23013 JOHN, RAYMOND L

\\srvcofile\ITO\ITO QA\IT Crystal Reports\IPRA Data Requests\20-255\current inmates 65 years and older by facility.rpt

Page 1 of 64/16/2020

77348 JOHNSON, DAVID ALBERT 68604 JOHNSTON, ROY A 85462 KILBOURN, LEE SETH 81118 KNIGHT, DONALD GERHART 29640 LANCASTER, ROBERT VIRGIL 83228 LIPSCOMB, CHARLES LEE 75816 LOPEZ, EDMUND WALTERS 77889 LOPEZ, REYNALDO ISAIAS 82930 LOVATO, ARNOLD LAWRENCE 79207 LUCERO, GEORGE ALBERT 64166 MALLORY, PETER JAMES 82509 MENDOZA, LOUIE A 65501 MERRILL, LAVERGNE BURR 58009 MOLINA, RUBEN 68105 NAVA, MANUEL 28564 NELSON, EUGENE 80990 OCHOA, ROBERT 59080 PASCAL, RONALD HARRY 83588 PATTERSON, TRACY DON 67105 RAVEN, KEN 80336 RIOS-PEREZ, JOSE 86041 ROUNDS, CHRISTOPHER PAUL 79393 SALTWATER, IRVIN 86871 SCHULT, DAIN 24910 SHAW, JOHNNY REYNARD 80846 SMITH, JAMES STUART 83969 SOPYN, MICOLA 67279 TAIT, KEN WAYNE 60214 TOLBERT, LAWRENCE DOUGLAS 82094 TORRES, EVAN EDUARDO 49508 TRUJILLO, FRED 80567 TRUJILLO, JERRY BRECILIANO 18836 TRUJILLO, JOSE ABRAN 56239 VERANTH, ALBERT 70776 WALTON, ERIC COOPER 72010 WILCOX, JOHN 60698 WOLF, ROBERT 57167 YAZZIE, FRANK 65339 YAZZIE, HAROLD 83575 ZUBIATE, MANUEL

78Facility Total:

CNMCF MAINNMCD# Name 24037 FEKETE, JOHN J. 73669 FITZPATRICK, JAMES DENNIS 74112 GARCIA, LEROY 74631 HANSEN, RICHARD KEITH 61053 HEFFELFINGER, LEWIS 32101 HENDERSON, ROBERT 72021 HUDSON, ROBERT C 87503 MALISZEWSKI, RICHARD WILLIAM 28899 PETTES, JAMES EDWARD 24309 SENA, RUDOLPH AUGUSTINE 30705 SIMONSON, CLIFFORD PAUL 80835 SPENCE, ROBERT EUGENE 72906 STAGGS, LESLIE LEWIS 71431 URESTI, JOSEPH

14Facility Total:

95Complex Total:

\\srvcofile\ITO\ITO QA\IT Crystal Reports\IPRA Data Requests\20-255\current inmates 65 years and older by facility.rpt

Page 2 of 64/16/2020

GUADALUPE COUNTY CORR. FAC

GCCFNMCD# Name 21259 BELL, CARL EDBERT 31017 BENAVIDEZ, LOUIS STEPHEN 79602 BUCCIGROSSI, CHARLES DAVID 28064 CHAPMAN, RICHARD 83185 CRENSHAW, BILLY DAN 27064 DURAN, JAKE 79037 GARCIA, ROBERT 28268 GRUBB, JOSEPH 26957 JACKSON, FELDON 37401 JETT, RICHARD DENNIS 30222 JOHNSON, REILLY BURK 61538 KNAPP, KARL 57524 LECOMPTE, LEO 82945 LOSOYA, JOSE 60922 RODRIGUEZ, RODGER 86449 RUSSELL, MICHAEL 27849 SAAVEDRA, GILBERT 26396 TORRES, LAWRENCE IGNACIO 40842 WOODWARD, DAVID M

19Facility Total:

19Complex Total:

LEA COUNTY CORRECTIONAL CENTER

LCCFNMCD# Name 66297 BAHNEY, THOMAS LEON 76480 BENYI, JOHN JOSEPH 26464 BERRY, DONALD KEITH 64272 BOYETT, CECIL EARL 67588 CARRILLO, ADAN MONTEZ 37513 CHAMBERLAIN, MERRILL BURROUS 75282 CORONADO, ROBERT NEIL 51049 CUNNINGHAM, DANNY A 68294 DORRIS, BOBBY ALLAN 39074 GALLEGOS, ROBERTO 86102 GOODMAN, EDWARD DEAN 86930 GOODRIDGE, THOMAS DIXON 86322 GREEN, JAMES MORRILL 87442 LAMBROS, JAMES PETER 59325 LOZANO-CHACON, MANUEL HECTOR 68824 MARTINEZ, DONALD LEE 35381 MCMAHAN, FRANK 65434 RIVERA, HENRY A 28869 SKIDGEL, CLIFTON RICHARD 25272 SOSA, DANIEL W. 34210 TAFOYA, ROBERT JAMES 38432 TEMPLE, PETER SCOTT 66353 WELCH, JEFFERY 29695 WHITTINGTON, DONALD RAY 56276 WILLIS, WADE MICHAEL 70272 WING, DONALD MARTIN

26Facility Total:

26Complex Total:

\\srvcofile\ITO\ITO QA\IT Crystal Reports\IPRA Data Requests\20-255\current inmates 65 years and older by facility.rpt

Page 3 of 64/16/2020

NORTH WESTERN NM CORR CENTER

NWNMCFNMCD# Name 87447 BENNETT, STEPHEN MARK 32729 CHAVEZ, WILLIAM STEVEN 76467 CORDOVA, JUAN DE DIOS 72192 GILPIN, MICHAEL MONTGOMERY 49589 HAYNES, LADELL 83786 JOHNSON, RONALD LEE 84785 MARQUEZ, ISAAC FREDDY

7Facility Total:

7Complex Total:

NORTHEAST NM DET FACILITY

NENMDFNMCD# Name 82541 CARMONA, ENRIQUE 33157 DUNSHEE, JAMES 32152 DURAN, VENUSTIANO 24622 GUTIERREZ, FRANK RALPH 70689 GUTIERREZ, JUAN IGNACIO 86380 HUNTER, FRANKLIN EUGENE 76893 KIERNAN, ROBERT ARTHUR 32813 WILLIAMS, ROBERT LEE

8Facility Total:

8Complex Total:

\\srvcofile\ITO\ITO QA\IT Crystal Reports\IPRA Data Requests\20-255\current inmates 65 years and older by facility.rpt

Page 4 of 64/16/2020

OTERO COUNTY PRISON FACILITY

OCPFNMCD# Name 78949 AVILA, LORENZO 76584 BOTTS, JAMES L 75637 CARBAJAL, DAVID 24484 CARDON, RUDY BALDONADO 87373 CUEVAS, CONCEPCION CARBAJAL 69573 DAPRANO, LOUIS ANTHONY 63001 DOMBOS, FRANK JOSEPH 72232 FARMER, GEORGE PATRICK 85436 GAINES, GERALD EUGENE 54142 GARCIA, ROSARIO 76358 GIBBS, PHILLIP EARL 84663 LEWIS, DAVID WILSON 23052 MARTINEZ, SIMON MELENDREZ 29060 MONTOYA, ALEX SAMMY 61483 PEACE, JOHNNY 82583 RENE, THOMAS JEROME 84952 RICHEY, TERRY LEE 79710 RIVERA, MANUEL ALEX 54718 SALAZ, JUAN R 86369 SANCHEZ, JIMMY 23970 SEDILLO, RICHARD HILADIO 53098 SHANNON, DAVID CARROL 25390 VILLEGAS, PAUL STEVEN 74672 VINCENT, ROLFE

24Facility Total:

OCPPNMCD# Name 69306 LUCERO, JERRY JOHN 80998 RAMOS, JOHN DOMINGO 69917 RAMOS, RUDY 76632 SURRATT, DANNY

4Facility Total:

28Complex Total:

PENITENTIARY OF NEW MEXICO

PNM LEVEL IINMCD# Name 87675 BLANTON, BENNY JOE 68797 LEYBA, FRED 66724 LUCERO, RICHARD GUADALUPE 75147 OROZCO, SALMAN 54378 SALAZAR, JUAN 82561 VASQUEZ, VALENTIN PLACIDO

6Facility Total:

PNM LEVEL VNMCD# Name 23757 SANCHEZ, DANIEL JOE

1Facility Total:

7Complex Total:

\\srvcofile\ITO\ITO QA\IT Crystal Reports\IPRA Data Requests\20-255\current inmates 65 years and older by facility.rpt

Page 5 of 64/16/2020

SOUTHERN NEW MEXICO CORR. FACILITY

SNMCF LEVEL IINMCD# Name 73753 CARL, ROGER ALDON 86892 TRISTE, EDUARDO

2Facility Total:

SNMCF MAINNMCD# Name 56556 AICHER, ERIC 65167 CORDOVA, KENNETH J 28520 COX, ROBERT ELTON 35036 HOLLOWAY, BARRY 47143 JOSLIN, CHARLES GLADWIN 56297 ROMERO, STEVE 28020 SERRANO, JERRY ROYBAL 32396 TORRES, HECTOR 40033 VERNON, JERRY

9Facility Total:

11Complex Total:

WESTERN WOMENS CORR FACILITY

WWCFNMCD# Name 41212 AGUILAR, FRIZELLE LAGRETTA 72335 BARTEE-ORTEGA, MARIA 45185 BECKLEY, ESTHER CAROL 86023 GREEN, DEBORAH 58040 HENNING, LINDA T 29952 LOVATO, MARY ESTHER 29375 MARTINEZ, ANGEL TERESA 67974 SMALLWOOD, KAREN 86429 TAYLOR, MARY E

9Facility Total:

9Complex Total:

210Report Total:

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Page 6 of 64/16/2020

EPIDEMIOLOGY AND RESPONSE

1190 St. Francis Drive, N1320 • Santa Fe, New Mexico • 87502-6110

(505) 827-0006 • FAX: (505) 827-2110 • www.nmhealth.org

The New Mexico Department of Health (NMDOH) considers all people living within State borders, institutionalized or not, under its jurisdiction for public health concerns. When an outbreak of an infectious disease occurs in an institution, whether correctional, long-term care facility, school or other, that institution should contact the Epidemiology and Response Division (ERD) of the NMDOH immediately upon knowledge or suspicion of the outbreak at (505) 827-0006 (available 24/7/365) in compliance with the New Mexico Administrative Code (NMAC). ERD staff will evaluate the situation and recommend disease prevention measures to minimize spread of the illness to detainees and the surrounding community. Typically, these recommendations will be based on guidelines from the Centers for Disease Control and Prevention (CDC). https://www.cdc.gov/ General Recommendations:

All detention centers or other correctional facilities in the state of New Mexico, however operated, should have the following resources in place to rapidly respond to an outbreak of an infectious disease:

An infection prevention specialist and a medical director available to the facility.

An infection control plan for detainees and staff at the facility. This plan should address

the capabilities below and how transmission of communicable diseases between

detainees, facility staff, and the surrounding community will be prevented.

Availability of 24/7/365 health services capable of screening, diagnosis, and treatment

of vaccine preventable diseases among detainees and staff. Health services staff and

administrators should be familiar with notifiable disease conditions and how to report

them to the NMDOH under NMAC. https://nmhealth.org/publication/view/policy/372/

Staff training in universal precautions for infection control and use of personal

protective equipment when their work could put them in contact with ill detainees.

Intake medical history that includes history of vaccination with the measles, mumps,

and rubella (MMR), varicella, and influenza vaccines.

The ability to gather and enter information in the New Mexico State Immunization

Information System so that vaccination history can be shared among healthcare and

public health providers. https://nmhealth.org/about/phd/idb/imp/siis/

Resources in place to collect specimens and have them tested and/or shipped to the

New Mexico Scientific Laboratory Division (SLD) for testing.

Ability to maintain health records (electronic or paper) for detainees, including

vaccination history, while detained onsite and through transfer to different facilities.

EPIDEMIOLOGY AND RESPONSE

1190 St. Francis Drive, N1320 • Santa Fe, New Mexico • 87502-6110

(505) 827-0006 • FAX: (505) 827-2110 • www.nmhealth.org

Availability of isolation areas to separate ill detainees from others and a means of

quarantine for exposed detainees without infringing on their privileges and rights

afforded under national detention standards.

Specific Recommendations for Outbreaks:

Capacity to obtain, maintain temperature requirements, and provide vaccines and

antiviral medications in a timely way to susceptible detainees and staff who may have

been exposed if applicable for outbreak control of measles, mumps, rubella, varicella,

influenza, and hepatitis A.

For the specific situation of a mumps outbreak, NMDOH and CDC do not recommend

checking immunity levels by IgG testing of the exposed individuals as there are no data

that demonstrates that any level of IgG antibody is protective. IgM testing might

establish the diagnosis of acute mumps infection in symptomatic individuals and should

be accompanied by PCR testing of a buccal swab.

Exposed susceptible individuals should be quarantined for one full incubation period

since the date the last symptomatic case was infectious, per NMDOH guidance provided

during the outbreak.

If any exposed susceptible individual in a quarantined holding area is moved into

another area or another facility with unexposed individuals, these individuals should be

considered exposed and quarantined.

If exposed susceptible individuals are transferred to other facilities, then it is the

responsibility of the facility with the outbreak to notify the other facilities, so they can

apply quarantine and vaccination per NMDOH guidance.

Term Definition

Infection Control Plan

A type incident annex to an emergency response plan under ICS. This plan addresses the responsibilities and concept of operations at the facility to prevent the spread of infections.

Isolation Separation of an actively ill person from non-ill persons to reduce the spread of an infection.

Quarantine Because many diseases can be spread from infected persons before they develop symptoms of disease, quarantine is used to separate and observe people who have been exposed to a known case of disease until completing a period of time that disease symptoms would be expected to appear.

Incubation Period

The time from infection with a specific pathogen until disease symptoms are apparent in a person. The quarantine period depends on the pathogen incubation period.