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1

Harold J. McElhinny* Kevin M. Coles*

2

Elizabeth G. Balassone* MORRISON & FOERSTER LLP

3

425 Market Street San Francisco, CA 94105-2482

4

Telephone: (415) 268-7000 Facsimile: (415) 268-7522

5

Email: HMcElhinny@mofo.com Email: KColes@mofo.com

6 Email: EBalassone@mofo.com

7

Colette Reiner Mayer* MORRISON & FOERSTER LLP

8

755 Page Mill Road Palo Alto, CA 94304-1018

9

Telephone: (650) 813-5600 Facsimile: (650) 494-0792

10 Email: CRMayer@mofo.com

11 Attorneys for Plaintiffs

12 *Pro hac vice motions forthcoming

13 Additional counsel listed on signature page

14

IN UNITED STATES DISTRICT COURT

15

FOR THE DISTRICT OF ARIZONA

16

17

JANE DOE #1; JANE DOE #2; NORLAN FLORES, on behalf of themselves and all

18 others similarly situated,

19

Plaintiffs,

Case No. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20

v.

CLASS ACTION

21

Jeh Johnson, Secretary, United States Department of Homeland Security, in his

22

official capacity; R. Gil Kerlikowske, Commissioner, United States Customs &

23

Border Protection, in his official capacity; Michael J. Fisher, Chief of the United States

24

Border Patrol, in his official capacity; Jeffrey Self, Commander, Arizona Joint Field

25

Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent-Tucson Sector,

26 in his official capacity,

27

Defendant.

28

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1

INTRODUCTION

2

1. Plaintiffs are civil detainees confined in a U.S. Customs and Border

3 Protection (“CBP”) facility within the Tucson Sector of the U.S. Border Patrol

4 (“Border Patrol”), a division of CBP. During their confinement, Plaintiffs and many

5 others like them—men, women, and children—have been subjected to inhumane and

6 punitive conditions. They have been packed into overcrowded and filthy holding cells

7 with the lights glaring day and night; stripped of outer layers of clothing and forced to

8 suffer in brutally cold temperatures; deprived of beds, bedding, and sleep; denied

9 adequate food, water, medicine and medical care, and basic sanitation and hygiene

10 items such as soap, sufficient toilet paper, sanitary napkins, diapers, and showers; and

11 held incommunicado in these conditions for days. These conditions exist in all of the

12 short-term detention facilities that CBP currently operates and maintains in its Tucson

13 Sector and thus Plaintiffs and putative class members are harmed no matter where they

14 are detained within the Sector. Plaintiffs bring this action challenging these harsh and

15 degrading conditions in Tucson Sector CBP facilities on behalf of themselves and all

16 those similarly situated.

17

2. Plaintiffs and putative class members have been or will be apprehended at

18 or near the U.S. border with Mexico and detained. Border Patrol apprehended more

19 than 200,000 people in its Tucson Sector in the past two years alone, among them

20 individuals seeking asylum, mothers with infants, and U.S. citizen children. Many of

21 the individuals CBP detains have fled dangerous conditions in their home countries,

22 and are seized following a lengthy, difficult, and perilous journey. They arrive

23 exhausted, thirsty and hungry, and often are suffering from dehydration, heat stroke,

24 diarrhea, bleeding and blistered feet, and other health conditions requiring medical

25 attention. A substantial number of the women are recent victims of sexually assault.

26 Many other adults and children arrive traumatized by the dangers they have escaped

27 and the harms they have suffered during their journey to the United States.1 The

28 1 See A Treacherous Journey: Child Migrants Navigating the U.S. Immigration Sys., Ctr. for Gender & Refugee Studies & Kids in Need of Defense (Feb. 2014),

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1 conditions in the holding cells—including the inadequate supply of water and food, the

2 extremely cold temperatures and the lack of access to medical care and medicines—

3 further endanger those already suffering from exposure-related medical impairments

4 and other pre-existing conditions.

5

3. In Border Patrol’s Tucson Sector (“Tucson Sector”), Defendants detain

6 apprehended individuals overnight—and often for multiple nights—in unsanitary

7 holding cells that are neither designed nor equipped for extended detention, and

8 certainly not for sleeping. Per Defendants’ own guidelines, holding cell use should be

9 limited to a period of no more than twelve hours. In practice, the vast majority of

10 detainees are held far longer. Defendants’ regular use of these filthy, cold, and often

11 overcrowded holding cells for longer-term detention is dangerous, inhumane, and

12 punitive.

13

4. As a result of Defendants’ policy and practice of using Tucson Sector

14 holding cells for overnight and even multiple night confinement, the named Plaintiffs

15 and putative class members are denied the ability to get adequate sleep—if any at all.

16 Defendants do not equip holding cells with beds and generally do not provide detainees

17 mattresses or other bedding. Defendants leave holding cell lights on at all hours, and

18 detained individuals must attempt to sleep on cold concrete floors and hard benches.

19 The cells are often so overcrowded that not all detainees are able to lie down and

20 instead must sit or stand through the night.

21

5. Border Patrol holding cells are notoriously referred to as “hieleras,” the

22 Spanish term for “freezers” or “iceboxes,” because they are so cold. Defendants

23 expose Tucson Sector detainees to painfully low temperatures without proper clothing

24

http://www.uchastings.edu/ centers/cgrs-docs/ treacherous-journey-cgrs-kind-

25 report.pdf; Invisible Victims: Migrants on the Move in Mexico, Amnesty Int'l (2010),

26

available at https://fusiondotnet.files.wordpress.com/2014/09 /amr410142010eng.pdf; Erin Siegal & Deborah Bonello, Is rape the price to pay for migrant women chasing the

27

American Dream?, Fusion (Sept. 10, 2014), http://fusion.net/story/17321/is-rape-theprice-to-pay-for-migrant-women-chasing-the-american-dream/; Jude Joffe Block,

Women crossing the border face sexual assault with little protection, PBS News Hour

28 (Mar. 31, 2014), available at http://www.pbs.org/newshour/updates/ facing-risk-rape-

migrant-women-prepare-birth-control/

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1 or blankets. Indeed, CBP officials force detainees to remove extra layers of clothing

2 before entering the frigid cells. CBP officials regularly ignore detainees’ complaints

3 about the cold cells, and it has been reported that officials threaten to make the cells

4 even colder as punishment for complaining about the temperature.

5

6. Defendants systematically deny Plaintiffs and putative class members’

6 basic hygiene items. Detainees in Tucson Sector holding cells have no access to soap,

7 showers, towels, toothpaste, or toothbrushes. Cells are dirty and not regularly or

8 properly cleaned and are not equipped with waste receptacles. Women are not

9 regularly provided an adequate supply of sanitary napkins, and women with babies are

10 not given enough diapers to keep them clean. Shortages of toilet paper are not

11 promptly remedied. Without soap, detainees cannot adequately wash their hands

12 before eating and after using the toilet, exacerbating the squalor and increasing the risk

13 of illness and transmission.

14

7. Plaintiffs and putative class members often are dehydrated, hungry, and

15 sick as a result of walking in the desert, but Defendants do not provide them with

16 sufficient access to clean drinking water or food. Sometimes detainees receive no food

17 or drinking water at all. What Defendants do provide for detainees to eat is

18 exceedingly minimal, cold, and/or expired, and is consistently described by detainees

19 as being nearly inedible.

20

8. Many detainees arrive at CBP custody with serious medical conditions,

21 often resulting from walking for days in the desert. Defendants do not adequately

22 screen for dangerous or life-threatening medical conditions, do not provide detainees

23 access to qualified medical personnel in response to detainees’ ongoing or emergent

24 medical issues, and fail to provide medically appropriate administration of medicines to

25 detainees. When one detainee asked agents to help her seven-year-old U.S. citizen

26 daughter, who was in pain from what she believed was an ear infection, an agent told

27 her, “There is no medicine here.” By failing to screen detainees for medical conditions,

28 including communicable illnesses, before placing them in squalid, overcrowded

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1 holding cells, Defendants endanger the health of detainees and increase the risk that

2 illnesses can spread amongst detainees.

3

9. Defendants do not allow detained individuals out of the holding cells for

4 the duration of their detention, except for official questioning, and detainees are

5 effectively cut off from the outside world. Defendants also deny access to phones to

6 secure or communicate with legal counsel or to call loved ones. Held virtually

7 incommunicado, and under conditions that amount to an inherently coercive

8 environment, detainees often are pressured by agents into giving up their legal rights by

9 signing legal documents they do not understand, often in a language they cannot read—

10 documents that can lead to deportation without further legal process afforded under the

11 law. For example, many are discouraged or impeded from seeking asylum or similar

12 protection despite their fear of returning to serious harm in their countries of origin.

13

10. The inhumane and dangerous conditions in the Tucson Sector facilities

14 result in irreparable, ongoing physical and psychological harm to Plaintiffs and putative

15 class members and serious risk of future harm.

16

11. The overall conditions of Defendants’ holding cells deny the humanity of

17 those held within their walls, with such intolerable results as the denial of prescribed

18 pain medication to a pregnant woman with a broken foot; the failure to provide medical

19 attention to another woman suffering heavy vaginal bleeding; children as young as four

20 years old stripped of warm clothing and left crying through the night from cold and

21 hunger; detainees sick, exhausted, and shivering, pleading for guards to turn up the

22 temperature; and the repeated response of agents that these conditions are the price to

23 be paid for coming to United States. In the words of one detainee: “It felt like we were

24 being treated like animals and not as human beings.” Other detainees characterized the

25 experience as “inhumane and degrading,” “humiliating,” and “like a form of torture.”

26 Still another described “[t]he lack of food and sleep, and the cold and overcrowding” as

27 “constant and punishing.”

28

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1

12. As set out below, these harsh, excessive, and punitive conditions are

2 publicly documented and well-known to Defendants. Defendants nonetheless have

3 been intentionally indifferent to these conditions and the irreparable harm and risk of

4 harm they cause to Plaintiffs and many thousands of other vulnerable individuals like

5 them. Defendants have not remedied these problems or made the changes needed to

6 ensure that Plaintiffs and putative class members experience humane, lawful conditions

7 for so long as they are detained. Court intervention is therefore required.

8

JURISDICTION AND VENUE

9

13. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331

10 and 1346. Defendants have waived sovereign immunity for purposes of this suit

11 pursuant to 5 U.S.C. § 702. The Court has authority to grant declaratory relief under 28

12 U.S.C. §§ 2201 and 2202.

13

14. Venue is proper in this District under 28 U.S.C. §§ 1391(b) and (e). All

14 Defendants are sued in their official capacity. All of the events giving rise to this

15 Complaint occurred within this District.

16

PARTIES

17

15. Plaintiff Jane Doe #1 is currently detained in the Tucson Border Patrol

18 Station facility in Tucson, Arizona.

19

16. Plaintiff Jane Doe #1 came to the United States out of fear for her life and

20 fears death if she is returned to her home country.

21

17. Plaintiff Jane Doe #1 has been detained in CBP custody for

22 approximately thirty hours total. Plaintiff Jane Doe #1 has spent one night in Border

23 Patrol detention.

24

18. Prior to arrival to the Border Patrol’s Tucson facility, Plaintiff Jane Doe

25 #1 was detained in Border Patrol’s facility in Casa Grande for approximately twenty-

26 four hours.

27

19. Upon arrival to that facility, Plaintiff Jane Doe #1 was forced to remove

28 her sweatshirt before being placed in a holding cell.

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20. Plaintiff Jane Doe #1 was not screened for medical conditions or

2 illnesses. She does have a concern with an abrasion on her left foot, but has had no

3 opportunity to have it looked at by a medical professional.

4

21. The temperature of the holding cell in which Plaintiff Jane Doe #1 was

5 detained is extremely cold. She was detained with her sister, and they held each to

6 keep warm. Plaintiff Jane Doe #1 said that if she had been detained alone without her

7 sister she does not know how she could have kept warm at the Casa Grande facility.

8

22. The holding cell in which Plaintiff Jane Doe #1 was detained is furnished

9 only with approximately two concrete benches. She tried to sleep on the concrete

10 bench, but almost fell off so had to sleep on the floor.

11

23. Plaintiff Jane Doe #1 was not provided access to showers, toothpaste, or

12 toothbrush at either the Casa Grande facility or the Tucson facility. There was no soap

13 at the Casa Grande facility. There was only the ability to use hand sanitizer when one

14 of the guards took Plaintiff Jane Doe #1 out of the cell to be interviewed and there was

15 hand sanitizer in his office.

16

24. In Casa Grande, there was a toilet in the cell and there was no privacy

17 because the guards can see inside. Plaintiff Jane Doe #1 knows the guards can see

18 inside while they are using the restroom because when one guard took her out of the

19 cell to interview her he said to her that she should be sure to use the hand sanitizer

20 because she used the bathroom. Plaintiff Jane Doe #1 asked if he could see her when

21 she was using the restroom and understood that he could. The guard made her feel like

22 an animal because she felt like he was saying to her “put on alcohol so you won’t

23 contaminate us.”

24

25. One of the women who was being held in the cell with Plaintiff Jane Doe

25 #1 at the Tucson Border Patrol facility told Plaintiff Jane Doe #1 that she got her period

26 yesterday and she kept knocking on the door to try to get a sanitary napkin from the

27 guards, but the guards would not give her anything, and they wouldn’t even come to

28 the door. The other woman told Jane Doe #1 that she had to use toilet paper and it

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1 wasn’t until today that another group of women arrived to the cell and she was able to

2 ask again and finally got a sanitary napkin.

3

26. Plaintiff Jane Doe #1 was not provided access to a bed or bedding. She

4 had to sleep on the cold concrete floor in order to sleep. She only got about five hours

5 sleep, if that, because the lights were kept on all day and all night at the Casa Grande

6 facility. The guards would come in and ask them questions when they were trying to

7 sleep—it was very tense.

8

27. Plaintiff Jane Doe #1 was provided only a thin aluminum blanket. That

9 blanket was insufficient to provide warmth to Plaintiff Jane Doe #1.

10

28. Plaintiff Jane Doe #1 has been provided only a small amount of food

11 while detained by Border Patrol. She was given two packets of cookies and a small

12 juice box when she arrived at the Casa Grande facility, later she was given a small

13 burrito, which tasted very bad. Finally, before leaving for the Tucson facility, she was

14 given another small burrito and a juice box. As a result, Plaintiff Jane Doe #1 is

15 extremely hungry.

16

29. In the Border Patrol facility in which Plaintiff Jane Doe #1 was held, the

17 only water provided to Jane Doe #1 came from a small faucet on top of the toilet in the

18 cell. There was a sign that said “drinking water here.” You had to push a button to get

19 the water, but it tasted awful. The only way that Plaintiff Jane Doe #1 could handle

20 drinking the water was to alternate with a sip or two of juice because it tasted awful.

21 Plaintiff Jane Doe #1 said she forced herself to do this out of necessity.

22

30. When Plaintiff Jane Doe #1 was first apprehended by Border Patrol in

23 the desert in Arizona, she was tied hand to hand with the other individuals she was

24 detained with. The Border Patrol officers made Plaintiff Jane Doe #1 and the other

25 individuals sit in the hot desert for almost two hours. During this time, the Border

26 Patrol officers were taking photos with their dog and letting the dog run freely between

27 the detained women and men. There were about four or five Border Patrol officers,

28 and one dog. It was very scary and the dog was really aggressive. One of the

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1 individuals detained asked why the Border Patrol officers were taking photos and they

2 said it was for the dog’s Facebook page. During this order, Plaintiff Jane Doe #1 was

3 getting dehydrated.

4

31. While they were being held in the desert sun, one of the Border Patrol

5 officers asked the group if they were hungry, when they said yes, the officer mocked

6 them by saying “oh, we are about to go to the store.”

7

32. After being in the sun with the dog, Plaintiff Jane Doe #1 was transported

8 with about 9 other people in one van. It was so crowded in the van that one of them sat

9 on the floor. They were basically piled on top of each other. They were transported to

10 the Casa Grande facility.

11

33. After arriving to Border Patrol custody, Plaintiff Jane Doe #1 signed legal

12 documents that Plaintiff Jane Doe #1 did not understand.

13

34. On June 8, after approximately 24 hours in detention, Plaintiff Jane Doe

14 #1 was transferred to Border Patrol’s Tucson facility. Plaintiff has been detained in the

15 Tucson facility for approximately three additional hours. The conditions in the Tucson

16 facility are substantially similar to those Plaintiff Jane Doe #1 experienced in the Casa

17 Grande facility, as described above, except that the temperature at the Tucson facility is

18 even colder and more uncomfortable.

19

35. Plaintiff Jane Doe #2 is currently detained in the Tucson Border Patrol

20 Station facility in Tucson, Arizona.

21

36. On June 7, 2015, at approximately 11:00 a.m., Plaintiff Jane Doe #2 was

22 apprehended along with her sister and a group of approximately ten people by Border

23 Patrol agents in southern Arizona.

24

37. After being apprehended, the group was handcuffed and left in the hot

25 sun for two hours. They were not provided with food or water. The agents’ service

26 canine was let loose and allowed to circle and approach the group unrestrained. The

27 dog stepped on Plaintiff Jane Doe #2. Agents took pictures with their cell phones,

28 laughed, and joked that the photographs were “for the dog’s Facebook account.”

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38. Plaintiff Jane Doe #2 and the rest of the group were placed in a Border

2 Patrol vehicle and driven to Border Patrol’s facility in Casa Grande, Arizona. Plaintiff

3 Jane Doe #2 was detained in that facility for approximately twenty-four hours.

4

39. Prior to arrival to the Casa Grande facility, Plaintiff was forced to remove

5 her outer layers of clothing. She was detained wearing only a short-sleeved shirt,

6 pants, and shoes.

7

40. At the Casa Grande facility, Plaintiff Jane Doe #2 was not screened for

8 medical conditions or illnesses. An agent simply asked her if she was “okay.”

9

41. The temperature of the holding cell in which Plaintiff Jane Doe #2 was

10 detained was very cold. Plaintiff Jane Doe #2 was not given additional clothing and

11 was only provided with a thin aluminum blanket.

12

42. The holding cell in which Plaintiff Jane Doe #2 was detained was

13 furnished only with concrete benches.

14

43. Plaintiff Jane Doe #2 was not provided access to a bed or bedding. She

15 slept on the concrete floor of the cell.

16

44. Plaintiff Jane Doe #2 was not provided access to showers, toothpaste, a

17 toothbrush, soap, towels, or cleaning supplies.

18

45. In the Border Patrol facility in which Plaintiff Jane Doe #2 was held, the

19 lights were kept on all night. The lights and the lack of beds made it very difficult for

20 Plaintiff Jane Doe #2 to sleep.

21

46. Plaintiff Jane Doe #2 has been provided little food while detained by

22 Border Patrol. Plaintiff Jane Doe #2 has sporadically received burritos, cookies, and

23 juice and has been hungry as a result.

24

47. In the Border Patrol facility in which Plaintiff Jane Doe #2 was held, the

25 only water provided to Plaintiff Jane Doe #2 came from the sink above the toilet.

26 There were no cups from which to drink and the water had a bad taste.

27

48. On June 8, 2015, after one night and approximately twenty-four hours in

28 detention in the Casa Grande facility, Plaintiff Jane Doe #2 was transferred to Border

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1 Patrol’s Tucson facility. Plaintiff has been detained in the Tucson facility for

2 approximately three hours.

3

49. Plaintiff’s hold room in the Tucson facility is even colder than the room

4 in which she was held in Casa Grande. In most other respects, the conditions in the

5 Tucson facility are substantially similar to those Plaintiff Jane Doe #2 experienced in

6 the Casa Grande facility, as described above. Plaintiff Jane Doe #2 has no access to

7 beds or bedding, soap, towels, toothpaste, or a toothbrush. Plaintiff Jane Doe #2 has

8 not been able to shower or bathe since she was detained.

9

50. Plaintiff Jane Doe #2 has been detained in CBP custody for

10 approximately thirty hours in total. Plaintiff Jane Doe #2 has spent one night in Border

11 Patrol detention.

12

51. Plaintiff Jane Doe #2 fears returning to her home country.

13

52. Plaintiff Norlan Flores is a thirty-four-year-old Nicaraguan native who

14 has resided in Tucson, Arizona for approximately nine years. Plaintiff Flores has twice

15 been detained by Border Patrol agents in a holding cell in the Tucson Border Patrol

16 Station. Based upon these past detentions, he fears that at any time he again could be

17 detained by Border Patrol agents in a holding cell at the Tucson Border Patrol Station.

18

53. Plaintiff Flores was first detained in a CBP holding cell for three days in

19 or around 2007. The cell in which he was held was extremely cold and had no beds or

20 bedding; consequently he was able to sleep very little during the entire three days.

21 Plaintiff Flores also was very hungry throughout his entire detention; he never received

22 a meal, but instead was periodically given only juice and crackers. Despite being very

23 thirsty, he could not drink very much water because the tap water—the only water

24 available—tasted so bad and the Border Patrol agents provided no drinking cups.

25 Because there was no soap in the holding cell, Plaintiff Flores was unable to wash his

26 hands after he used the toilet or before he ate. Plaintiff Flores was not given access to

27 showers or towels and he could not bathe for three days. He was not given a

28

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1 toothbrush or toothpaste and could not brush his teeth while detained. Plaintiff Flores

2 was never given the opportunity to speak with an attorney or with his consulate.

3

54. In 2011, Plaintiff Flores was the victim of an assault. In 2012, he began

4 the process of applying for a U Nonimmigrant visa as the victim of a crime who had

5 cooperated with the authorities, by formally asking the local Sheriff’s Department to

6 certify his Petition for a U visa—the requisite first step to obtaining such a visa. In or

7 about August, 2014, Plaintiff Flores received the necessary certification from the

8 Sheriff’s office. He then filed the U Nonimmigrant visa petition with the United States

9 Department of Homeland Security (“DHS”). Recently, his petition was approved and

10 he received a U Nonimmigrant visa, which allows him to live and work in the United

11 States.

12

55. On August 10, 2014, while returning to the hospital following the birth of

13 his daughter, Plaintiff Flores was arrested by the Tucson Police for a minor traffic

14 violation. Border Patrol agents arrived at the scene and took him to the Tucson Border

15 Patrol Station.

16

56. Plaintiff Flores was held at the Tucson Border Patrol Station for

17 approximately 36 hours in four different holding cells. None of the cells had beds or

18 bedding; consequently he and others had to attempt to sleep sitting up or—if the cell

19 was not too crowded—lying on the floor. Plaintiff Flores got little to no sleep during

20 his 36 hour detention. He was held for 24 hours with about 130 other men all crowded

21 together “like sardines” in a cell with a posted occupancy of roughly half that number.

22 At times, there was no room for Plaintiff Flores to lie down in this cell.

23

57. The lights were kept on all night in each of the cells in which Plaintiff

24 Flores was held, and each cell was extremely cold. Border Patrol agents ordered

25 Plaintiff Flores to hand over all but one layer of clothing when he arrived. With only a

26 t-shirt, pants and shoes—and a thin aluminum sheet that did not keep him warm—

27 Plaintiff Flores spent much of the time shivering from the cold.

28

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58. During Plaintiff Flores’ detention in the Tucson Border Patrol Station,

2 none of the cells had soap, towels, or showers. He was unable to wash even his hands

3 after using the toilet or before eating, and could not shower the entire time. Because

4 Plaintiff Flores was not given a toothbrush or toothpaste, he could not brush his teeth.

5

59. All of the cells were filthy and smelled terrible. There was garbage on

6 the floor of all of the cells and no trash bins. The only time the cell was cleaned during

7 his detention was by several inmates who had been offered an extra burrito in exchange

8 for cleaning the cell. Even after that cleaning, the cell was filthy and littered with trash.

9 In one cell, there was no toilet paper. In the last cell, in which 130 people were held,

10 one of the three toilets did not work, and men had to wait in line to use the remaining

11 two. The foul smell was overpowering.

12

60. For more than eight hours, Plaintiff Flores received only crackers and

13 juice. Eventually, Border Patrol agents gave each detainee a small burrito, but the

14 conditions in the cell were so terrible—due to the filth, the stench, the overcrowding,

15 and the cold—that Plaintiff Flores was not able to eat. Some of the other detainees in

16 the cell complained of stomach pain and of feeling sick, but the Border Patrol agents

17 ignored them.

18

61. Access to water was extremely limited. In the first cell, there was no

19 water. Later, there was a water container, but no cups, and when the water ran out,

20 agents did not replenish it for hours at a time. Plaintiff Flores had to refashion a used

21 juice container into a cup in order to drink water.

22

62. Plaintiff Flores was not screened for any medical conditions at any point

23 during his detention. Several other detainees were vomiting and suffering from

24 diarrhea but they did not receive medical attention.

25

63. At the time he was detained, Plaintiff Flores was in possession of a valid

26 Form G-28 “Notice of Entry of Appearance as Attorney,” signed by his immigration

27 attorney. Nonetheless, he was not able to speak or meet with his attorney while

28 detained in Border Patrol custody.

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1

64. Plaintiff Flores remains very apprehensive about being detained again by

2 Border Patrol. Although his U visa was approved, there is a backlog of available visas,

3 so Plaintiff Flores is still waiting to obtain the visa. Unless or until he has finally

4 obtained the visa and then applied for and received permanent residency status—which

5 won’t be for at least another three and a half years—Plaintiff Flores believes he could

6 be detained by Border Patrol again.2

7

65. Defendant Jeh Johnson, the Secretary of DHS, is charged with enforcing

8 and administering the immigration laws. He oversees each of the component agencies

9 within DHS, including CBP and its subdivision the Border Patrol, and has ultimate

10 authority over all policies, procedures, and practices relating to CBP facilities,

11 including holding cells within Border Patrol facilities. He is responsible for ensuring

12 that all individuals held in CBP custody are detained in accordance with the

13 Constitution and all relevant laws. Defendant Johnson is sued in his official capacity.

14

66. Defendant R. Gil Kerlikowske is Commissioner of CBP. In that capacity,

15 Defendant Kerlikowske has direct authority over all CBP policies, procedures, and

16 practices relating to CBP facilities, including holding cells within Border Patrol

17 facilities. He is responsible for ensuring that all individuals held in CBP custody are

18 detained in accordance with the Constitution and all relevant laws. Defendant

19 Kerlikowske is sued in his official capacity.

20

67. Defendant Michael J. Fisher is Chief of the Border Patrol. In that

21 capacity, Defendant Fisher has direct responsibility for policies, procedures, and

22 practices relating to Border Patrol facilities, including the holding cells in such

23 facilities. He is responsible for ensuring that all individuals held in Border Patrol

24 custody are detained in accordance with the Constitution and all relevant laws.

25 Defendant Fisher is sued in his official capacity.

26

27 2 See Press Release, ACLU Obtains Judgment Against Arizona Sheriffs & Pinal Cnty. Based On Officers’ Use of S.B. No.1070 “Show Me the Papers” Law, ACLU
28 (December 18, 2014), https://www.aclu.org/news/aclu-obtains-judgment-againstarizona-sheriffs-and-pinal-county-based-officers-use-sb-1070-show.

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1

68. Defendant Jeffrey Self is Commander of the Arizona Joint Field

2 Command of CBP. In that capacity, Defendant Self has direct responsibility for

3 policies, procedures, and practices relating to Border Patrol facilities, including their

4 holding cells, in the Tucson Sector. He is responsible for ensuring that all individuals

5 held in Border Patrol custody in the Tucson Sector are detained in accordance with the

6 Constitution and all relevant laws. Defendant Self is sued in his official capacity.

7

69. Defendant Manuel Padilla, Jr. is the Chief Patrol Agent for the Border

8 Patrol’s Tucson Sector. In that capacity, Defendant Padilla has direct responsibility for

9 policies, procedures, and practices relating to Border Patrol facilities, including their

10 holding cells, in the Tucson Sector. He is responsible for ensuring that all individuals

11 held in Border Patrol custody in the Tucson Sector are detained in accordance with the

12 Constitution and all relevant laws. Defendant Padilla is sued in his official capacity.

13

FACTUAL BACKGROUND

14

70. CBP maintains and operates detention facilities in its Tucson Sector,

15 including facilities in Bisbee (“Brian A. Terry Station,” also known as the “Naco

16 Station”), Casa Grande (“Casa Grande Station”), Douglas (“Douglas Station”), Nogales

17 (“Nogales Station”), Sonoita (“Sonoita Station”), Tucson (“Tucson Station”), Why

18 (“Ajo Station”), Willcox (“Willcox Station”), and Three Points (“Three Points

19 Substation”), among other detention facilities, all of which are located in Cochise,

20 Pima, Pinal, and Santa Cruz Counties of Arizona.3 These facilities, which include

21 Border Patrol Sector Headquarters, Stations, Substations, Ports of Entry, and Forward

22 Operating Bases, contain holding cells (or “hold rooms”) in which individuals

23 apprehended by CBP and Border Patrol agents are confined pending processing and

24 transport or release.

25

71. Of the 479,371 Border Patrol apprehensions along the U.S.-Mexico

26 border reported for Fiscal Year 2014, approximately 18 percent occurred in the Tucson

27 3 See Tucson Sector Arizona, United States Customs & Border Protection,
28 http://www.cbp.gov/border-security/along-us-borders/border-patrol-sectors/tucsonsector-arizona.

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1 Sector. Border Patrol has reported more than 200,000 Tucson Sector apprehensions

2 during the past two years alone. Every year, Border Patrol confines tens of thousands

3 of the men, women, and children it apprehends in its Tucson Sector holding cells.

4

72. Plaintiffs are among those detained by the Tucson Sector Border Patrol.

5 They and those they seek to represent are all civil detainees. Plaintiffs and putative

6 class members all have been or will be apprehended by Border Patrol agents, most

7 often based upon alleged suspicion that they are noncitizens unlawfully present in the

8 United States. All have been or will be confined in Tucson Sector holding cells while

9 Border Patrol agents complete initial processing.

10

73. Individuals apprehended and detained by CBP in the Tucson Sector are

11 subject to transfer to and detention in multiple CBP facilities prior to being transferred

12 to another agency, repatriated, or released. In some cases, detainees are held for

13 extended periods, including overnight, in Border Patrol vehicles or Port of Entry

14 holding cells without sinks or easy access to toilets, while awaiting transfer to the next

15 facility.

16

74. After processing, detained individuals are either released, repatriated,

17 transferred to another CBP facility, or transferred to the custody of another agency—

18 either to Immigration and Customs Enforcement (“ICE”) for civil removal proceedings,

19 to the United States Marshals Service for possible federal criminal proceedings, or, if

20 the detainee is an unaccompanied minor, to the Office of Refugee Resettlement

21 (“ORR”) within the Department of Health and Human Services. This process regularly

22 takes multiple days. Throughout these days and nights, detainees are confined to

23 holding cells.

24

75. Defendants have promulgated extensive policies and procedures related

25 to the operation of holding cells, from detailed design and construction requirements to

26 detention standards governing the provision of food, water, and medical care, among

27 other protocols. Defendants are responsible for the promulgation and implementation

28 of those policies and procedures. Defendants also are responsible for oversight and

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1 monitoring of compliance with applicable laws, policies, and procedures as well as for

2 the training and supervision necessary to ensure compliance.

3

76. Detention policies and procedures implemented or followed in the

4 Tucson Sector facilities must be consistent with national policies and standards. These

5 national policies are described in numerous documents including a June 2, 2008

6 Memorandum regarding “Hold Rooms and Short Term Custody” issued by CBP

7 (hereafter “2008 Memorandum”) and a CBP Security Policy and Procedures

8 Handbook, HB1400-02B (hereafter “2009 CBP Handbook”).4

9

77. CBP’s policies “implement[] security policies and standards published in

10 a number of relevant source documents including numerous Public Laws, Presidential

11 Directives, regulations, rules, Interagency Security Committee security design criteria,

12 and U.S. Department of Homeland Security (DHS) Management Directives (MD)

13 regarding integrating, managing, and governing various Security functions.” (2009

14 CBP Handbook, Foreword by Acting Commissioner Jayson Ahern.)

15

78. While Defendants’ national policies set minimum standards for detention

16 conditions in holding cells, they do not satisfy constitutional requirements.

17 Defendants’ policies and procedures are a cause of irreparable bodily and

18 psychological harm to Plaintiffs and putative class members. In practice, Defendants

19 fail to follow even the inadequate policies they have promulgated, further increasing

20 the harm and risk of harm to Plaintiffs and others like them.

21

79. The conditions experienced by the Plaintiffs are standard in holding cells

22 in all short-term holding CBP facilities currently operated within the Tucson Sector and

23 thus have been or will be experienced by all putative class members.

24

80. Defendants have subjected each of the Plaintiffs to prolonged detention

25 for one or more nights.

26 4 Memorandum, Hold Rooms and Short Term Custody, U.S. Customs & Border Patrol
27 (June 2, 2008), available at https://www.documentcloud.org/documents/818095-bppolicy-on-hold-rooms-and-short-term-custody.html; Security Policy & Procedures
28 Handbook, HB1400-02B, U.S. Customs & Border Patrol at p. 492 (Aug. 13, 2009), available at https://publicintelligence.net/cbp-security-procedures-handbook/.

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1

81. Defendants deny all of the Plaintiffs access to a bed, mattress, or other

2 adequate bedding.

3

82. None of the Plaintiffs has been able to sleep adequately due to the

4 extreme cold, lack of beds, the bright lights left on at all times, and other conditions.

5

83. Defendants deny all of the Plaintiffs access to hygiene supplies including,

6 soap, towels, sanitary napkins, diapers, toothbrushes, and toothpaste.

7

84. None of the Plaintiffs has been permitted to bathe or shower.

8

85. None of the Plaintiffs were adequately screened for medical conditions.

9

86. None of the Plaintiffs has been provided nutritionally adequate food or

10 clean drinking water.

11

87. Over the past year, Plaintiffs’ counsel conducted interviews with, and

12 took declarations from, more than 75 individuals (hereinafter “former detainees”) who,

13 collectively, were detained in all eight of the Tucson Sector CBP facilities at various

14 times in 2014 and 2015.

15

88. The descriptions of the holding cells by the former detainees are

16 consistent in all material respects with the Plaintiffs’ descriptions of the holding cells in

17 which they are detained. All of these individuals describe CBP detention facilities in

18 which men, women, and children—including asylum seekers, pregnant women, and

19 U.S. citizens, some of them toddlers and infants—are held in conditions that are

20 dangerous, inhumane, and punitive.

21

A. Defendants Detain a Large Number of Individuals in Overcrowded

22

Holding Cells.

23

89. CBP defines a holding cell (also referred to as a “hold room”) as an area

24 such as a detention cell, a search room, or an interview room in which detained persons

25 are temporarily held pending processing or transfer.5 Holding cells vary in dimension

26 but are generally rectangular, concrete, and minimally furnished. They are equipped

27 with concrete, metal, or wooden benches affixed to the floors and walls, but have no

28 5 2008 Memorandum § 3.3.

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1 beds or other furniture. Toilets and sinks are located within the cells and only partially

2 shielded from view by short metal or concrete partitions.

3

90. According to CBP’s policies, the minimum square footage for multiple

4 occupancy rooms is thirty-seven square feet for the first occupant and seven square feet

5 of unencumbered space for each additional occupant. “(Unencumbered is usable space

6 that is not encumbered by fixtures or furnishings).” (2009 CBP Handbook at pp.492-

7 93.) On information and belief, signs displaying maximum hold room capacity are

8 posted in many, if not all, holding cells.

9

91. Notwithstanding Defendants’ policies specifying the size and maximum

10 occupancy of holding cells, Defendants regularly permit the number of detainees in

11 holding cells to exceed the specified capacity, resulting in severe overcrowding and

12 often making it impossible for all detainees in the holding cell to sit or lie down. As

13 one former detainee explained, “We were like cigarettes stuffed” in the cell. Another

14 detainee explained that it was so crowded that, if a detainee used the restroom, he

15 would lose his spot on the floor and have to stand. Some detainees are left with no

16 other option but to lie on the floor next to the toilets.

17

92. Defendants detain unreasonably large numbers of individuals in these

18 holding cells, in violation of Defendants’ own guidelines and despite available

19 alternatives.

20

93. The overcrowded conditions exacerbate the serious harms and risks of

21 harm from the constitutionally inadequate conditions and punitive practices described

22 in detail below.

23

B. Plaintiffs and Putative Class Members are Kept Overnight in

24

Holding Cells That Are Not Equipped for Overnight Sleeping.

25

94. Although CBP policy indicates that adult detainees should be held for no

26 more than twelve hours and be moved “promptly,” 6 most detainees are held for much

27 longer.

28 6 See, e.g., 2008 Memorandum § 6.2.1; id. § 6.2.2 (encouraging agents to “make every effort to promptly move the detainee(s)”); id. §§ 6.2.1, 6.2.2 (advising that detainees

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1

95. CBP data provided in response to a Freedom of Information Act

2 (“FOIA”) request indicates that from January 1, 2013 to June 30, 2013, 72,198

3 individuals were detained in its Tucson Sector facilities. Of these, 58,083 individuals,

4 or 80.4 percent of the total number, were in Border Patrol custody for 24 hours or

5 longer. Over 24,832, or 34.4 percent, were held for 48 hours or more, and 7,839, or

6 10.9 percent, were held for 72 hours or more.

7

96. CBP policies and practices, including the agency’s “Consequence

8 Delivery System” (“CDS”),7 guarantee that large numbers of detainees will be forced

9 to spend multiple nights in inhumane and degrading conditions. For example,

10 consistent with the agency’s CDS policy, Border Patrol screens Tucson Sector

11 detainees for referral to “Operation Streamline” proceedings,8 in which dozens of

12 individuals enter guilty pleas on federal unauthorized entry charges in a single hearing.

13 In Tucson, these proceedings are held every weekday afternoon. Thus, any individual

14 who is apprehended on a Friday and referred for Operation Streamline proceedings will

15 spend a minimum of three nights in Border Patrol custody, while individuals detained

16 during a weekend will spend at least one and often two nights in custody, prior to

17 referral for a Monday hearing. In Tucson, thousands of individuals are referred for

18 these proceedings annually.

19

20 “should not be held for more than 12 hours,” and that “every effort will be made to promptly process, transfer, transport, remove, or release those in custody as appropriate
21 and as operationally feasible”) (emphasis added).

22

7 Border Patrol’s “Consequence Delivery System” (“CDS”) applies “targeted enforcement techniques,” including but not limited to criminal prosecution, to

23

unauthorized border crossers. According to the Border Patrol, the CDS is designed to “apply the appropriate post-arrest consequences…to break the smuggling cycle and end

24

the subject’s desire to attempt further illegal entry.” See 2012-2016 Border Patrol Strategic Plan, U.S. Customs & Border Patrol, at p. 17, available at

25 http://www.cbp.gov/sites/default/files/documents/bp_strategic_plan.pdf.

8 Operation Streamline “is a partnership program among CBP, U.S. Attorneys, and

26 District Court judges in certain border districts to expedite criminal justice processing.

The program permits groups of criminal defendants to have their cases heard at the

27 same time . . . and arranges in most cases for aliens facing felony charges for illegal re-

entry to plead guilty to misdemeanor illegal entry charges.” Border Security between

28 Ports of Entry, Congressional Research Service at p. 8 (Dec. 18, 2014), available at

https://www.fas.org/sgp/crs/homesec/R42138.pdf.

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1

97. All of the Plaintiffs were detained overnight. The named Plaintiffs’

2 experiences in the holding cells are consistent with those of former detainees, all of

3 whom were held overnight and some of whom also were held for extended periods in

4 holding cells at Ports of Entry (“POE”) or in vans or buses awaiting transfers.

5

C. Plaintiffs and Other Detainees Are Subjected to Conditions that

6

Deprive Them of Sleep.

7

98. Defendants’ policy is to deny detainees access to beds. Despite the fact

8 that most detainees are held overnight and often for multiple days and nights, Tucson

9 Sector holding cells are not equipped with beds.

10

99. The 2009 CBP Handbook lists among the “requirements” of a hold room:

11 “No beds; a hold room is not designed for sleeping.”

12

100. Because there are no beds, Plaintiffs and others detained by Border Patrol

13 overnight or for multiple nights must attempt to sleep on the limited number of metal,

14 wood or concrete benches, or if none are available, to sleep sitting or lying on the

15 filthy, frigid, concrete floor.

16

101. Additionally, Defendants have a practice of denying detainees, including

17 Plaintiffs, access to mattresses, pillows, and other bedding in violation of Defendants’

18 own policies. CBP’s policies state: “Detainees requiring bedding will be given clean

19 bedding. Only one detainee will use this bedding between cleanings. This bedding

20 will be changed every three days and cleaned before it is issued to another detainee.

21 Vinyl or rubber-coated mattresses will be disinfected before being reissued.”9

22

102. Defendants generally provide detainees with a single, thin aluminum

23 sheet to serve as a blanket, and nothing else.

24

103. None of the Plaintiffs or former detainees had access to a bed while

25 confined in any of the CBP facilities in which they were held, and the vast majority of

26 former detainees—including women detained with children—were forced to spend the

27 night on a cold cement floor or a hard bench with no mattress and no bedding. One

28 9 2008 Memorandum § 6.11.

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1 mother recounted staying awake all night to ensure that her five-year old daughter—

2 who was sleeping on a concrete bench—would not roll over and onto the floor.

3

104. Defendants consistently maintain holding cells at extremely cold

4 temperatures, causing detainees pain and discomfort and significantly impeding their

5 ability to sleep. A former detainee compared his attempt to sleep on the cold concrete

6 floor to “trying to sleep on ice.” The single, thin aluminum sheets Defendants provide

7 to detained individuals are insufficient to serve as bedding. Most former detainees said

8 that the aluminum sheet provided was insufficient to provide protection from the

9 extreme cold, which made sleep difficult or impossible. Nearly all former detainees

10 who requested additional aluminum sheets were refused, even when their originally-

11 issued sheets were damaged.

12

105. In addition, as outlined above, Defendants regularly permit the number of

13 detainees in holding cells to exceed the specified capacity, resulting in severe

14 overcrowding and often making it impossible for detainees in the holding cell to sit or

15 lie down. Former detainees describe holding cells as so overcrowded that there is no

16 available space or room to move, forcing some detainees to lie on the floor surrounding

17 the toilets; others are forced to stand through the night. One detainee recalled not being

18 able to sleep for two nights because there was no place to sit or lie down: “My back

19 became sore from standing. There were people all around me, including at my feet.”

20 Another detainee gave his space on the floor to an injured man and as a result, he “had

21 to try and sleep standing.”

22

106. Defendants leave hold room lights on at all times, including overnight,

23 further impairing Plaintiffs’ and other detainees’ ability to sleep.

24

107. Because detainees are denied beds and instead are forced to attempt to

25 sleep on cold, hard surfaces, and are subjected to extremely cold temperatures without

26 sufficient clothing or blankets, in holding cells that are noisy and overcrowded, and

27 because the lights are often left on twenty-four hours a day, it is difficult or impossible

28 for detainees to sleep. For those detainees who are able to sleep, it is often only fitfully

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1 and for short periods. The deprivation of sleep both creates a risk of and actually

2 causes physical and psychological harm to Plaintiffs and putative class members.

3

D. Plaintiffs and Putative Class Members are Subjected to Painful and

4

Punitively Cold Temperatures.

5

108. Defendants maintain extremely cold temperatures in CBP holding cells,

6 yet per Defendants’ policy, Border Patrol agents only allow Plaintiffs and other

7 detainees to wear one layer of clothing and provide them with only a thin aluminum

8 sheet that is insufficient to provide adequate warmth.

9

109. Border Patrol strips detainees who arrive at CBP facilities—including

10 young children—of any jackets, sweaters, or additional layers of clothing before they

11 enter the holding cells. Border Patrol agents regularly refuse detainees’ requests for

12 additional layers of clothing or blankets, despite the extreme cold.

13

110. The sudden exposure to extremely cold temperatures is particularly

14 harmful—physically and psychologically—to individuals who are already suffering

15 from impairments, such as heat stroke and dehydration.

16

111. The intentionally low temperatures in the holding cells—or “ice boxes”

17 as they are uniformly called by detainees—are brutal for those confined to these spaces.

18 As one detainee vividly recounted: “I now understand why dogs sleep in a little ball, to

19 keep warm, but I couldn’t even keep warm by doing that.” Parents describe their

20 young children crying through the night because of the frigid temperature. One former

21 detainee described being detained after presenting herself and her four children at the

22 Nogales Port of Entry: “We were so cold that my bones hurt and we were all

23 shivering…My children were crying because of the cold and my ten year old and eight

24 year old, who are both U.S. citizens, started to get sick because of the cold and

25 developed a cough.” Another former detainee expressed that he contemplated

26 accepting deportation solely to escape the extreme cold.

27

112. Detainees’ requests that Border Patrol agents turn up the temperature

28 often are ignored, mocked, or result in threats of retaliation by the agents. In some

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1 instances, agents threaten to turn down the temperature even further if detainees

2 complain or request that the temperature be turned up.10 Similarly, agents have used

3 the temperature in the holding cells as a means of controlling behavior. For example,

4 agents have threatened to turn down the temperature if detainees did not stop talking

5 among themselves, were too “loud,” or asked for more food. Some former detainees

6 described feeling the cell become colder following threats such as these.

7

113. Defendants’ practice of maintaining punitive and painfully cold

8 temperatures in Tucson Sector holding cells both creates a risk of and actually causes

9 physical and psychological harm to Plaintiffs and putative class members.

10

E. Plaintiffs and Other Detainees Are Held in Filthy Cells and Not

11

Given Regular Access to Basic Hygiene Products.

12

114. CBP policy requires that all detainees “will be held in facilities that are

13 safe, secure and clean. Detainees will be provided food, water, properly equipped

14 restrooms and hygiene supplies.”11

15

115. Despite this policy, Defendants have a practice of denying those detained

16 in Tucson Sector facilities access to basic hygiene necessities such as soap, towels,

17 toothpaste, toothbrushes, and showers. None of the Plaintiffs or former detainees had

18 access to soap, towels, toothpaste, or toothbrushes in any of the CBP facilities in which

19 they were held; similarly, none were able to bathe while detained.

20

116. Defendants’ written policy specifically states that detainees shall be

21 provided with soap after using the restroom.12 Yet, the Tucson Sector-wide practice is

22 not to provide soap to detainees in holding cells. Consequently, detainees are unable to

23

10 The intentional manipulation of temperatures by Border Patrol officials as a form of 24 abuse was documented by the humanitarian aid organization No More Deaths

(“NMD”) in 2011. Culture of Cruelty: Abuse & Impunity In Short-Term U.S. Border

25 Patrol Custody, No More Deaths (2011), available at

http://forms.nomoredeaths.org/abuse-documentation/a-culture-of-cruelty/appendix-

26 official-documents/ (noting reports of agents “turning on the air conditioning or placing

27

fans outside the cells after receiving complaints about cold cells”) (hereafter “Culture of Cruelty”).

28 11 2008 Memorandum § 5.1. 12 2008 Memorandum § 6.10.

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1 wash their hands with soap even after using the toilet and before and after eating. One

2 former detainee recounted that, not only was there no soap, but the sole sink in the

3 holding cell did not work. Another explained that because there was no way for the

4 many people who had spent days walking in the desert to bathe, the “conditions

5 became disgusting with so many people packed into a cell in this way.”

6

117. Defendants have a practice of denying individuals detained in Tucson

7 Sector facilities, including Plaintiffs, access to showers and other bathing facilities.

8 Even Defendants’ own policy provides that detainees held more than seventy-two

9 hours should be provided with showers.13 In practice, however, Defendants generally

10 fail to provide any individuals held in Tucson Sector facilities with an opportunity to

11 bathe. Detainees, many of whom have been apprehended after days in the desert and/or

12 with serious health conditions, are unable to change clothes or to properly wash

13 themselves for days on end. Former detainees have described the odors resulting from

14 the lack of hygiene as unbearable; in the words of one man, the smell was “awful, just

15 very ugly.”

16

118. Female detainees who are menstruating often are not provided with a

17 sufficient supply of sanitary napkins or a hygienic means for their disposal. Women

18 needing additional napkins have been denied access to more.

19

119. Adults with infants and toddlers are often not given an adequate supply of

20 diapers. For example, one woman reported waiting nineteen hours for fresh diapers for

21 her child. Another did not receive clean diapers for over twenty-eight hours while in

22 detention, and was forced to remove her two-year-old daughter’s soiled diaper—with

23 nowhere to dispose of it—and had to “just be very attentive to whether or not [her

24 daughter] wanted to go to the bathroom.”

25

120. Detainees, including Plaintiffs, are not provided toothpaste or

26 toothbrushes. As a result, detainees cannot brush their teeth during the entire time they

27 are in CBP custody.

28 13 2008 Memorandum § 6.14.

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1

121. Detainees are often not provided an adequate supply of toilet paper.

2 Former detainees report that, upon running out of toilet paper, Border Patrol agents

3 have delayed in bringing more—in one case, for as long as eight hours.

4

122. The harms caused by the absence of basic hygiene products are

5 exacerbated by the overcrowded and unsanitary conditions in the holding cells.

6

123. CBP policy requires that “[s]upervisors will ensure that detention cells

7 are regularly cleaned and sanitized.”14 This policy notwithstanding, Defendants have a

8 practice of failing to clean or sanitize holding cells regularly. Defendants also fail to

9 make cleaning and sanitation supplies available. Holding cells are often dirty and

10 littered with garbage and discarded food wrappers; piles of trash accumulate because

11 there are no waste bins, and cells are subject to only cursory and infrequent cleaning.

12 One woman recalled that there were “diapers, toilet paper and other trash strewn

13 around the bathroom area” when she arrived, and explained that she and others could

14 not clean the cell because there were no trash receptacles.

15

124. CBP policy requires one working toilet for every fifteen detainees.15 In

16 practice, Defendants regularly pack large numbers of individuals into holding cells

17 such that the ratio of detainees to toilets far exceeds CBP’s own guidelines. One

18 woman described being in a cell with approximately fifty women and children, and

19 only one toilet. As a result, there can be long queues for the limited toilet facilities

20 available. Defendants also fail to clean and maintain holding cell toilets adequately.

21 Holding cell toilets frequently do not work, leaving even fewer available toilets for

22 detainees to use. These unsanitary toilets are close to where the detainees eat and try to

23 sleep.

24

125. While held in Border Patrol custody, detainees are not permitted to leave

25 the holding cells for the duration of their detention other than for official questioning,

26 further exacerbating the impact of the holding cells’ filthy conditions on detainees.

27 28 14 2008 Memorandum § 6.16.
15 2009 CBP Handbook at p. 493.

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1 There are no areas for exposure to natural light and air, recreation, or other outside

2 visits.

3

126. As a result of Defendants’ failure to clean or sanitize the filthy,

4 unsanitary, and overcrowded facilities, and to provide detainees with hygiene supplies

5 and access to showers in which to bathe, Plaintiffs and putative class members are at

6 risk of—and actually have suffered—psychological and physical harm, such as

7 infections and other communicable illnesses.

8

F. Plaintiffs and Other Detainees Are Denied Adequate Medical

9

Screening and Access to Necessary Medical Care.

10

127. Although Defendants’ policies state that detainees should be given access

11 to qualified medical personnel,16 Defendants do not mandate or provide a medical

12 screening of all detainees for health problems—including for communicable diseases or

13 mental illness—prior to confining them.

14

128. Many detainees have pre-existing medical conditions and/or recently

15 acquired medical conditions resulting from walking in harsh desert environments,

16 including dehydration, heat stroke, diarrhea, bleeding and blistered feet, and other

17 health conditions requiring immediate medical care. Defendants nonetheless do not

18 adequately screen for or provide treatment for dangerous, communicable, and

19 potentially life-threatening conditions.

20

129. Defendants do not mandate medically appropriate administration of

21 medicines to detainees in the holding cells, including prescription medicine. All

22 medications are taken from detainees prior to their being confined. Border Patrol

23 agents fail to provide access to medically qualified personnel consistently so that

24 detainees can obtain alternative medication prescribed in the United States. One

25 former detainee arrived with a preexisting heart condition and asked for access to

26 prescribed medicine to deal with his condition. Defendants refused his request.

27

28 16 2008 Memorandum § 6.7.

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1

130. Another detainee asked agents to help her seven-year-old U.S. citizen

2 daughter, who reported pain from what she believed was an ear infection. An agent

3 told her, “There is no medicine here.” A detainee with a fever reported her symptoms

4 to an agent. The agent responded, “I am not a doctor,” and added that even if he had

5 medicine he would not give it to her.

6

131. Another detainee, an eight-months-pregnant woman with a broken ankle,

7 received prescription pain medication from a local medical provider. Upon return to

8 the detention facility, however, agents confiscated the woman’s medication and did not

9 administer it as prescribed, despite her pained cries for help. Agents told her not to cry

10 because she “was just going to be deported.”

11

132. Defendants do not mandate or provide appropriate responses to detainees’

12 ongoing or emergent medical issues. Several former detainees have described that they

13 asked to see a doctor and were refused. One detainee, a pregnant woman, notified

14 agents that she was pregnant; agents responded by mocking her, poking her abdomen,

15 and denying she was pregnant. Even when the woman was finally referred to a

16 provider, she did not receive a medical examination.

17

133. Another woman, a victim of sexual assault, reported heavy vaginal

18 bleeding but did not receive any medical attention until after she was transferred to ICE

19 custody five days later. The same woman observed another detainee with swollen feet

20 and in great pain, and another who was feverish and shaking, neither of whom received

21 medical attention while she was detained with them. Another described a six-year-old

22 child vomiting through the night without receiving any medical attention.

23

134. The inadequacy of necessary and emergency medical care for detainees

24 confined in CBP holding cells has been documented repeatedly. In 2011, the Tucson-

25 based humanitarian organization No More Deaths (“NMD”) reported that, following

26 interviews with over 12,000 individuals released from Border Patrol custody, the

27 majority of those who needed emergency medical care or medications were denied

28

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1 treatment.17 A 2009 report on the treatment of unaccompanied children in CBP

2 custody from the Women’s Refugee Commission discussed the inadequacy of

3 emergency medical treatment, including the case of a detained five-month old baby

4 who, when finally taken by CBP to the hospital, was diagnosed with hypothermia and

5 pneumonia.18 In 2014, the ACLU submitted complaints to DHS on behalf of children

6 in CBP detention whose medical care was ignored or overlooked, including several

7 who required hospitalization.19

8

135. Defendants’ failure to ensure appropriate screening for, response to, and

9 treatment of detainees’ medical and mental health conditions has both harmed Plaintiffs

10

17 Culture of Cruelty at pp. 20-21.

11 18 Halfway Home: Unaccompanied Children in Immigration Custody, Women’s

12

Refugee Commission & Orrick Herrington & Sutcliffe LLP at p. 11 (Feb. 2009), available at https://womensrefugeecommission.org/resources/download/196 (“Carmen

13

was apprehended by Border Patrol crossing the river with her five-month-old daughter Lily. She was placed into a cell with no dry clothes or blankets for her or the baby.

14

Carmen requested something to keep the baby warm since it was so cold in the cell and all she had was wet clothing. The agents refused. By morning Lily was turning blue.

15

Carmen begged the agents for help. Finally they looked at baby Lily and took her to the emergency room. Carmen was placed in shackles. Doctors at the emergency room

16

said that Lily was suffering from hypothermia and that she had contracted pneumonia. They gave her antibiotics and kept her in the hospital for twenty-four hours. During

17

that time Carmen was shackled and nurses were not allowed to give her any food.”) (hereafter “Halfway Home”).

18 19 See Letter Re: Systemic Abuse of Unaccompanied Immigrant Children by U.S. Customs & Border Protection, ACLU, at pp.12-13 (June 16, 2014), available at
19 http://www.acluaz.org/sites/default/files/documents/DHS%20Complaint%20re%20CB P%20Abuse%20of%20UICs.pdf (“CBP apprehended H.R. and his paternal aunt near
20 Rio Grande City, Texas. At the time of his apprehension, H.R. was seven years old and was severely developmentally disabled and suffering from severe malnourishment.
21 CBP detained H.R. for approximately five days without any medical treatment. After being transferred to ORR custody, H.R. was hospitalized immediately, underwent
22 surgery, and remained hospitalized for 42 days. His treating physicians and therapists diagnosed H.R. as suffering from a ‘global developmental delay,’ ‘autism disorder,’
23 and ‘severe malnutrition.’ His examination revealed that at seven years of age he weighed only twenty-five pounds, the average weight of an 11-month old child.”)
24 (hereafter “ACLU Report”); see also Jessica Bakeman, New York quietly expands role in caring for immigrant children, Capital New York (Oct. 20, 2014), available at
25 http://www.capitalnewyork.com/article/albany/2014/10/8554559/new-york-quietlyexpands-role-caring-immigrant-children (“When the children arrive at New York-area
26 airports from the federal facilities, they often require extensive medical care for broken bones that healed improperly or illnesses such as appendicitis and pneumonia,
27 nonprofit officials said . . . ‘Some of them have not eaten for long periods of time,’ said Henry Ackermann, chief development officer at [ORR subcontracted] Abbott
28 House . . . ‘They come to us malnourished. They come to us sometimes with unset broken arms or legs, with bronchial or respiratory issues.’”).

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1 and putative class members and created a direct and serious risk of harm to the physical

2 and mental health of detainees. This risk of harm is compounded by Defendants’

3 policies and practices that result in unsanitary and hazardous conditions in holding

4 cells, including but not limited to, overcrowding, absence of beds and bedding,

5 insufficient food and clean drinkable water, and the lack of soap for hand-washing.

6

G. Plaintiffs and Putative Class Members are Deprived of Adequate

7

Food and Water.

8

136. Defendants do not provide sufficient or adequate food to detainees,

9 notwithstanding Defendants’ policy requiring that detainees “will be provided snacks

10 and juice every four hours” and “a meal” if their detention is anticipated to exceed 8

11 hours.20

12

137. In practice, Defendants do not provide detainees with “meals” at all;

13 rather, Defendants generally provide detainees peanut butter crackers or cookies and

14 juice, or small—often cold—bean burritos, and nothing else. This food is provided

15 erratically, and some detainees receive no food at all. As a result, Tucson Sector

16 detainees, many of whom are apprehended after days in the desert without sufficient

17 food, frequently experience intense hunger for the duration of their detention.

18

138. Detainees who are transferred between CBP facilities may not receive

19 food in transit and may wait twenty-four hours or more before receiving any food. One

20 former detainee described not being given food for days while another only received a

21 packet of crackers and an orange once a day for three days. Several women were so

22 desperate to feed their children that they resorted to giving them broken crackers they

23 found on the floor.

24

139. Defendants regularly provide food portions that are not adequate to

25 satisfy detainees’ hunger. The food is often of such poor quality that detainees are

26 unable to eat it, or report feelings of nausea and stomach pain after trying to eat it.

27 Former detainees report receiving snacks with packaging dates indicating they have

28 20 2008 Memorandum § 6.8.

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1 expired, and describe the food as “disgusting,” “awful,” “cold,” looking “like it was

2 bad,” smelling “bad,” tasting “old,” and barely edible. Many detainees cannot

3 “stomach” the food given its condition and the dirty and foul-smelling condition of the

4 cells.

5

140. Those who are particularly vulnerable suffer even more—pregnant

6 women report suffering from severe hunger as a result of the minimal food made

7 available to them. One woman five months pregnant at the time of her detention, was

8 “very hungry” but found the crackers and juice she was given to be inedible. When she

9 examined the packaging, she noticed they were marked as having expired several

10 months prior.

11

141. Defendants’ policy further provides, “Regardless of time in custody,

12 juveniles will be provided with meal service, and at least every six hours thereafter, two

13 of the three meals must be hot.” In practice, Defendants do not provide regular hot

14 meals, or any meals, to juveniles or young children; rather, children and adolescents

15 receive the same cold snacks as other detainees on the same irregular and unreliable

16 schedule. Several former detainees describe children in holding cells crying from

17 hunger.

18

142. Many detainees have traveled through the desert for days prior to being

19 apprehended and are moderately or severely dehydrated upon arrival at the Tucson

20 Sector facilities. Others suffer from gastrointestinal disorders and diarrhea as a result

21 of drinking contaminated water in the desert. Defendants nonetheless deny detainees

22 access to adequate amounts of clean drinking water, notwithstanding Defendants’

23 policy requiring that potable drinking water be available.21

24

143. Detainees report not being given access to clean water for hours at a time.

25 Multiple former detainees did not receive water for an entire day. Sometimes the only

26 available water source comes from faucets mounted atop the holding cell toilets,

27 faucets that are not regularly or thoroughly cleaned. Moreover, multiple detainees—

28 21 2008 Memorandum § 6.9.

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1 none of whom have been able to wash their hands with soap after using the toilet—

2 regularly handle the faucets to obtain drinking water, increasing the risk of

3 contamination.

4

144. Defendants do not provide sufficient drinking cups, forcing detainees to

5 share cups or to re-use discarded juice containers provided periodically in order to

6 drink water.

7

145. The absence of adequate food, nutrition, and potable water both creates a

8 risk of and actually causes physical and psychological harm to Plaintiffs and putative

9 class members.

10

H. Plaintiffs and Putative Class Members are Unable to Communicate

11

with Family or Attorneys.

12

146. The psychological harms and high anxiety levels resulting from the

13 punitive conditions under which Plaintiffs and other individuals are held in the Tucson

14 Sector, described above, are exacerbated by Defendants’ practice of holding detainees

15 incommunicado and denying them access to the outside world while confined. The

16 deliberatively punitive, harsh conditions and severe restrictions on outside

17 communication also serve to facilitate the coercive practices for which the agency is

18 notorious.22

19

20

22 For example, CBP and Border Patrol’s widespread practice of coercing detained individuals into signing removal papers in southern California was the subject of the

21

class action lawsuit Lopez-Venegas v. Napolitano, No. 13-3972 (S.D. Cal. settlement agreement filed Aug. 18, 2014). In a recent settlement in that case, the agencies agreed

22

to “supplement their existing procedures” in southern California with additional due process protections. Richard Marosi, Feds to Allow Some Immigrant Deportees to

23

Return Under New Settlement, L.A. Times (Aug. 27, 2014), available at http:// www.latimes.com/local/la-me-deport-return-aclu-20140828-story.html. In addition,

24

detainees regularly sign paperwork relating to criminal prosecution without access to counsel, as well as “Hold Harmless and Release Agreements,” wherein, to have any

25

chance of recovering their confiscated property, detainees must release and forever discharge the government from liability for losing that property. See Ted Robbins,

26

Some Deportees Return to Mexico, But Their Stuff Stays In the U.S., NPR (Dec. 10, 2014), available at http://www.npr.org/2014/12/10/369893574/some-deportees-return-

27

to-mexico-but-their-stuff-stays-in-the-u-s; Daniel E. Martínez, et al., Bordering on Criminal: The Routine Abuse of Migrants in the Removal System, Part II: Possessions

28

Taken and not Returned, Immigration Policy Center (Dec. 2013), available at http://www.immigrationpolicy.org/sites/default/files/docs/ipc/Border%20-%20Possessi

ons%20FINAL.pdf (“The combination of a lack of oversight and the frequency of lost

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1

147. Tucson Sector detainees are generally not provided an opportunity to

2 make any phone calls. Border Patrol agents routinely deny requests to use the phone,

3 often telling detainees they can only make a call after transfer to a subsequent facility.

4

148. Defendants’ widespread practice, which is uniform within the Tucson

5 Sector, contravenes their own policy stating that detainees held for more than twenty-

6 four hours “will be given access to a telephone” for the purpose of contacting an

7 attorney or other party and that those held longer than twenty-four hours will be given

8 access to a phone at least once per day while in custody.23

9

149. Defendants also deny attorneys the opportunity to speak or meet with

10 clients detained in Tucson Sector facilities. Attorneys who attempt to contact clients in

11 Tucson Sector facilities have been informed by Border Patrol agents that they must

12 wait for the detained individual to be transferred to the custody of another agency.

13

150. While denying detained individuals access to attorneys, Tucson Sector

14 Border Patrol agents regularly coerce detainees into signing immigration-related

15 documents without first providing them with the opportunity to consult an attorney or

16 even to read the document in a language they speak. In so doing, these agents

17 frequently fail to adequately screen detainees to determine if they fear persecution in

18 their home country or otherwise intend to apply for asylum.24 Agents demand

19 belongings creates the appearance of corruption, if not conditions that are rife for 20 exploitation.”)

23 2008 Memorandum § 6.21. 21 24 CBP agents have a mandatory duty to screen arriving individuals subject to

22

expedited removal from the United States (a classification which includes the vast majority of detainees) for a fear of persecution in their home country or an intention to

23

apply for asylum. See C.M. Miller, CBP Inspector’s Field Manual, U.S. Customs & Border Patrol, at p. 114 (Feb. 10, 2006), available at https://shusterman.com/pdf/

24

cbpinspectorsfieldmanual.pdf; see also 8 C.F.R. § 235.3(b)(4); 8 U.S.C. § 1225(b)(1)(A)(ii) (authorizing statute). There is a long, well-documented history of

25

CBP failing to comply with this legally mandated process. American Exile: Rapid Deportations That Bypass the Courtroom, ACLU at p. 38 (Dec. 2014), available at

26

https://www.aclu.org/files/assets/120214-expeditedremoval-0.pdf (“Lucila O. fled domestic violence in Nicaragua and was arrested by Border Patrol agents in Texas: ‘I

27

told them I was afraid. . . . [The agent] just told me, “You are getting deported. . . . Even if you are afraid you are going to get deported.” Ericka E. F., a 33-year-old

28

woman from Honduras, fled gang violence and sexual and physical violence from her partner and was arrested in Texas: ‘I crossed in Laredo and I told them I needed

asylum. I needed to stay here to protect myself. . . . I told him I was fleeing for

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1 signatures on documents that are neither read to nor understood by the detainees, many

2 of whom forfeit any opportunity to seek relief from removal from the United States as a

3 result.

4

151. Among other forms of coercion, Border Patrol officials threaten detained

5 individuals with continued or indefinite detention if they refuse to sign, or pull

6 detainees from cells in the middle of the night to sign paperwork. One woman

7 describes being interrogated and signing documents four separate times in the course of

8 a single night. Another former detainee stated that a Border Patrol agent threatened to

9 sign the form himself if the detainee did not sign. Another described being pressured to

10 sign a removal order despite conveying her fear of return to her home country. Agents

11 rejected her fear of return and told her that she was only in the United States to work

12 and would not be able to see a judge.

13

152. Compounding the lack of access to any means of communication with

14 attorneys or the outside world, detainees have no meaningful mechanism for lodging

15 complaints regarding holding cell conditions and the mistreatment they experience

16 while detained. Moreover, DHS and CBP complaint and accountability mechanisms

17

18

19 protection because of the violence. They said women always come here with lies. I told

them it was true. [The officer] just laughed and laughed.’”); Letter Re: Inadequate U.S.

20 Customs & Border Protection (CBP) screening practices block individuals fleeing

persecution from access to the asylum process, Nat'l Immigrant Justice Center at pp. 3-

21 4 (Nov. 13, 2014), available at http://immigrantjustice.org/sites/immigrantjustice.org/

files/images/Right%20to%20Asylum%20-%20CRCL%20Complaint%20Cover%20

22 Letter%20-%2011.13.14%20FINAL%20PUBLIC.pdf (“[A] significant number of the

individuals who are deported under expedited removal orders despite having valid

23 claims to asylum are women or young adults with domestic violence claims or

individuals with sexual-orientation based claims. CBP’s failure to properly screen

24 these individuals can be fatal, sending individuals back into environments where they

are targeted for extreme violence.”); You Don’t Have Rights Here: U.S. Border

25 Screening & Returns of Central Americans to Risk of Serious Harm, Human Rights

26

Watch (Oct. 2014), available at http://www.hrw.org/sites/default/files/reports/us1014web-0.pdf (Virtually all of those we interviewed who had been apprehended at or near

27

the border were deported summarily, via expedited removal or reinstatement of removal. Many said they had expressed their fears to US Border Patrol officials

charged with screening for fear of return before being deported, but fewer than half of

28 these were referred by US Border Patrol for a further assessment of whether they had a

‘credible’ or ‘reasonable’ fear of returning to Honduras.”).

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1 are highly ineffective; the majority of complaints lodged against CBP are not

2 investigated or acted upon, and officials are rarely disciplined for abuse.25

3

153. Defendants’ practice of holding individuals in harsh conditions while

4 severely restricting access to outside counsel compounds detainees’ psychological

5 trauma, and makes individuals more susceptible to coercive tactics, such as forcing

6 them to sign legal documents they do not understand, including removal papers.

7

I. Defendants Are Aware of the Unhealthy and Punitive Conditions in

8

Tucson Sector Holding Cells and Have Failed to Take Remedial Action.

9

154. Defendants repeatedly have been put on notice of the inhumane and

10 unhealthy conditions in CBP detention facilities and thus are aware or should be aware

11 of these conditions. Despite this, Defendants have failed to take remedial action.

12 Numerous civil rights complaints to DHS, as well as human rights reports, media

13 accounts,26 lawsuits, and proposed legislation have documented the unlawful,

14

25 See, e.g., Garrett M. Graff, The Green Monster: How the Border Patrol Became 15 America’s Most Out-of-Control Law Enforcement Agency, Politico (Nov./Dec. 2014),

available at http://www.politico.com/magazine/story/2014/10/border-patrol-the-green16 monster-112220.html#.VW4iv2ktGUl (DHS oversight agencies have been criticized

for failing to investigate civil rights complaints, which they classify as lower priority, 17 “non-mission-compromising corruption.”); Andrew Becker, Border Agency’s Former

18

Watchdog Says Officials Impeded His Efforts, Wash. Post (Aug. 16, 2014), http:// www.washingtonpost.com/politics/border-agencys-former-watchdog-says-officials-

19

impeded-his-efforts/2014/08/16/ce143288-2304-11e4-8593-da634b334390-story.html (former head of CBP Internal Affairs describing CBP as an agency “rife with coverups

and corruption” where officials have “distorted facts to try to hide any missteps”);

20 Damien Cave, Complaints of Abuse by Border Agents Often Ignored, Records Show,

New York Times (May 5, 2014), http://www.nytimes.com/2014/05/06/us/ complaints-

21 of-abuse-by-border-agents-often-ignored-records-show.html?module=

search&mabReward =relbias:r&-r=0 (noting that 97 percent of the 809 abuse 22 complaints filed against Border Patrol agents between January 2009 and January 2012

resulted in the classification “no action” taken). 23 26 See, e.g., Ed Pilkington, It Was Cold, Very Cold: Migrant Children Endure Border

24

Patrol"Ice Boxes", Guardian (Jan. 26, 2015), available at http://www.theguardian.com/ us-news/2015/jan/26/migrant-children-border-patrol-ice-boxes (“Tatiana was 16 at the

25

time of her detention, a child herself. ‘The room was so cold you almost couldn’t breathe, it made your nose hurt,’ she said. There was no bedding, not even a blanket,

26

and she slept fitfully with [her infant son] Rafael in her arms. After a few days the baby caught a cold and stopped eating solids, and for a couple of days he wouldn’t

27

even take his mother’s milk. His weight fell from 23lbs when he arrived at the border station to 15lbs.”); Ed Pilkington, Freezing Cells and Sleep Deprivation: The Brutal

28

Conditions Migrants Still Face After Capture, Guardian (Dec. 12, 2014), available at http://www.theguardian.com/us-news/2014/dec/12/migrants-face-brutal-conditions-

after-capture-sleep-deprivation (“Among those subjected to harsh treatment . . . are

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1 unconstitutional, and punitive conditions of confinement in CBP holding cells—both in

2 the Tucson Sector and in other similar CBP facilities—beginning as early as 2009 and

3 continuing to date.

4

155. Public reports by academic institutions and human rights organizations,

5 based on thousands of interviews with former CBP detainees, as well as numerous civil

6 rights complaints submitted to DHS by multiple advocacy organizations and

7 individuals, have consistently described harsh conditions in these facilities, including

8 denial of food, water, and medical care; overcrowding; severe temperatures; and

9 physical and verbal abuse.

10

156. In 2008, NMD published a report describing grossly inadequate

11 detention conditions and verbal and physical abuse by CBP officials, including denial

12 of access to bathrooms, clean clothing, and blankets; former detainees described being

13 detained in holding cells for days without adequate food and water.27

14

15 numerous migrant children. Children have described temperatures in the cells that

turned their lips blue and made their fingers numb.”); Brianna Lee, Child Migrants 16 Report Freezing in “Icebox,” U.S. Border Patrol Centers, Int’l Business Times (Aug.

1, 2014), http://www.ibtimes.com/child-migrants-report-freezing-icebox-us-border17 patrol-centers-1646428; John Burnett, Amid Wave Of Child Immigrants, Reports of

18

Abuse By Border Patrol, NPR (July 24, 2014), available at http://www.npr.org/2014/07/24/ 334041633/amid-wave-of-child-immigrants-reports-

19

of-abuse-by-border-patrol; Molly Redden, Why Are Immigration Detention Facilities So Cold?, Mother Jones (July 16, 2014),

http://www.motherjones.com/politics/2014/07/why-are-immigration-ice-detention-

20 facilities-so-cold; Border Patrol Lockups Called Inhumane, Courthouse News (May

22, 2014), available at http://www.courthousenews.com/2014/05/22/ 68102.htm;

21 Alfonso Chardy, Immigrants Recount Horror of Being Detained in “Iceboxes” Before

Transfer to South Florida, Miami Herald (Apr. 19, 2014), available at 22 http://www.miamiherald.com/news/local/community/miami-dade/ article1963111.html;

Peter O’Dowd & Rachael Bale, Cold Storage: Migrants Refer to Border Cells as 23 Freezers, Fronteras (Nov. 18, 2013), available at http://

www.fronterasdesk.org/content/9237/cold-storage-migrants-refer-border-cells-freezers; 24 Cindy Carcamo & Richard Simon, Immigrant Groups Complaint of “Icebox”

Detention Cells, LA Times (Dec. 5, 2013), http://articles.latimes.com/2013/dec/05/

25 nation/la-na-ff-detention-centers-20131206; Brian Epstein, Crossing the Line: Part II,

26

Need to Know on PBS (July 20, 2012), available at http://www.pbs.org/wnet/need-toknow/video/video-crossing-the-line/14291/; Brad Poole, Report Alleges Border Patrol

27

Abuse of Illegal Immigrants, Reuters (Sept. 21, 2011), available at http:// www.reuters.com/article/2011/09/21/us-usa-mexico-study-

idUSTRE78K6NV20110921. 28 27 See Crossing the Line: Human Rights Abuses of Migrants in Short-Term Custody on

the Arizona-Sonora Border, No More Deaths (Sept. 2008), available at

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1

157. At the time of the NMD report’s release, numerous organizations sent

2 letters to DHS leadership and Members of Congress calling attention to the abuses

3 described in the report and urging reforms to CBP detention practices. More than six

4 years—and many reports and complaints—later, CBP still has failed to implement

5 needed reforms and ensure that its facilities meet even minimum standards.

6

158. Other organizations have reported similar conditions in CBP holding

7 cells. A 2009 report by the Arizona-based Florence Immigrant and Refugee Rights

8 Project (“FIRRP”) based on interviews with 124 unaccompanied children found 85

9 percent of the children interviewed were held in excessively cold rooms; a majority

10 were forced to sleep on the floor; one in three received inadequate food; one in four

11 were not offered water, while nearly one in three had to share water; and roughly half

12 were denied the opportunity to call an attorney, consular official, or family member.28

13 The children’s average length of detention was sixty-five hours.29 FIRRP submitted

14 administrative complaints to DHS on behalf of the children interviewed, along with the

15 children’s declarations describing abuse and mistreatment in Border Patrol custody.30

16

159. A 2009 Women’s Refugee Commission (“WRC”) report described

17 facilities in which unaccompanied children were denied access to beds, showers, and

18 phones, and detained for days and even weeks in frigid, overcrowded holding cells.31

19 WRC noted that, at that time, the U.S. government reported sixteen percent of

20 unaccompanied children were detained for over seventy-two hours before being

21 transferred to a shelter.32

22

23

http://forms.nomoredeaths.org/wp-content/uploads/2014/10/CrossingTheLinefull.compressed.pdf

24 28 Seeking Protection, Enduring Prosecution: the Treatment & Abuse of Unaccompanied Undocumented Children in Short-term Immigration Detention,
25 Florence Immigrant & Refugee Rights Project (Aug. 2009), available at http:// www.firrp.org/media/BPAbuseReport.pdf.
26 29 Id. at p. 13.

27 30 Id. at p. 7.

28 31 Halfway Home, at pp. 9-11. 32 Id. at 9.

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1

160. In 2011, NMD published a second report on abuses in CBP custody,

2 based on interviews with 12,895 individuals released from Border Patrol custody from

3 2008 to 2011.33 Of the individuals interviewed, 5,763 reported overcrowding, 3,107

4 reported unsanitary conditions, and 2,922 reported experiencing extreme cold. Only

5 twenty percent of individuals detained for more than two days reported receiving

6 adequate food.

7

161. A 2013 report by Americans for Immigrant Justice (“AI Justice”) also

8 describes conditions in Border Patrol holding cells consistent with those in the Tucson

9 Sector—unbearably cold, unsanitary, and inhumane: temperatures that caused

10 detainees’ fingers and toes to turn blue and their lips to chap and split; a lack of

11 blankets despite the cold; no beds or mattresses so that detainees were forced to try to

12 sleep on benches or on the floor; a lack of basic hygiene supplies such as toothbrushes,

13 soap, combs or ample sanitary napkins; an inability to shower or change clothing; and

14 inadequate food and water. AI Justice describes Border Patrol agents coercing

15 detainees into signing certain documents they do not understand, without translation

16 and under threat of continued detention.34

17

162. In May 2014, AI Justice filed a federal lawsuit against the U.S.

18 government on behalf of a female asylum seeker detained for many days in

19 overcrowded Border Patrol holding cells without beds, mattresses or other bedding;

20 denied medical care, hygiene supplies and the ability to bathe; and subjected to extreme

21 temperatures.35

22

163. In June 2014, the ACLU submitted complaints to DHS on behalf of 116

23 children alleging abuse and mistreatment in Border Patrol detention, including many

24 who were deprived of beds and bedding and forced to sleep on the floors in unsanitary,

25

33 Culture of Cruelty, at p. 5.

26 34 The “Hieleras”: A Report on Human & Civil Rights Abuses Committed by U.S.

27

Customs & Border Protection Agency, Americans for Immigrant Justice, at p. 3 (Aug. 2013), available at http://www.aijustice.org/the-hieleras-a-report-on-human-civil-

28 rights-abuses-committed-by-u-s-customs-and-border-protection-agency.

35 Quinonez Flores v. United States, No. 14-3166 (E.D.N.Y. filed May 20, 2014).

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1 overcrowded, and frigid holding cells.36 Several were hospitalized after prolonged

2 detention in Border Patrol custody.37 Several others reported that Border Patrol agents

3 told them that the harsh conditions in the holding cells were their punishment for

4 coming to the United States; others were forced to stand in stress positions as

5 punishment. One child arriving at a Border Patrol detention facility reports being told

6 by officials, “Welcome to hell.”38

7

164. In response to the ACLU’s complaint, DHS and CBP announced an

8 investigation and commenced several rounds of inspections of select Border Patrol

9 facilities, including one in Nogales, Arizona.39 Less than four months after announcing

10 that investigation, however, and notwithstanding its acknowledgment of “recurring

11 problems” in those facilities, the DHS Office of Inspector General (“OIG”) reported it

12 would be “curtailing routine inspections.”40 OIG noted that CBP’s “E3” data system,

13 which is intended as a tool for CBP to track compliance with its detention guidelines,

14 was subject to frequent system outrages resulting in inconsistent compliance reporting.

15 OIG concluded that because of this the system is “not a reliable tool for CBP to [use to]

16

17 36 See ACLU Letter, at pp.1-2.

18

37 Id. at pp. 13-14 (“M.R. is a 15-year-old girl who traveled from Guatemala with her two-year-old son, seeking the support of her family in the United States. M.R. recalls

19

one official who asked, “What are you looking for in the United States? No one told you to come here.” M.R. reports that CBP officials gave her the same cold meals daily

20

and that she had to sleep on a hard floor with only an aluminum ‘space blanket.’ Along with other detainees, M.R. was made to clean the bathrooms at the facility. On several

21

occasions, she had to wait hours to receive clean diapers for her son. Both M.R. and her son became sick while in CBP custody, but M.R.’s requests for medical attention

22

were ignored or dismissed for approximately five days, until she and her son were finally taken to a hospital. M.R. says that just thinking about the CBP holding facility

23 in which she was detained makes her feel shaky and nauseous.”).

38 Id. at p. 11. See also id. at p. 8 (“R.D. fled to the United States at age 17 after being 24 sexually abused by a gang member in her home country. While trying to cross the

border, she cut her hand on a fence. After Border Patrol apprehended her, an agent

25 looked at her hand and squeezed the wound, causing her great pain. The agent told her,

“‘It’s good that you are hurt, you deserve to be hurt for coming to the US illegally.’”).

26 39 See Unaccompanied Immigrant Children, C-SPAN (June 12, 2014), available at

27 http://www.c-span.org/video/?320151-1/unaccompanied-immigrant-children.

40 Press Release, Improvements Continue at Detention Centers, Dep’t of Homeland

28 Security, Office of Inspector General (Oct. 6, 2014), available at

https://www.oig.dhs.gov/assets/pr/2014/oigpr_100214.pdf.

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1 provide increased accountability for [unaccompanied children’s] safety and well-

2 being.”41 OIG did not indicate whether any action would be taken in response to the

3 deficiencies identified.

4

165. These children’s complaints are consistent with the allegations contained

5 in a series of Health and Human Services (“HHS”) Special Incident Reports leaked to

6 members of the press in June 2014. Those reports included nearly 80 complaints by

7 children of abuse and mistreatment in Border Patrol holding cells in Arizona and Texas

8 from 2011 to 2013. One child described being detained for five days in 2012 in an

9 overcrowded Tucson holding cell where there was not enough space to sleep; another

10 reported being detained in Tucson for five days and denied requests for food. Upon

11 information and belief, those allegations were communicated to DHS.

12

166. Recent Congressional action with respect to the inhumane conditions in

13 CBP’s detention facilities demonstrates awareness of these conditions at the highest

14 levels of government. In June 2013, Senator Barbara Boxer added an amendment to a

15 Senate immigration reform bill, S.B. 744, requiring improved CBP detention standards,

16 including holding cell capacity limits, adequate climate control, “[s]leeping

17 arrangements” for detainees held overnight, and access to hygiene items and medical

18 care, among other reforms.42 In December 2013, Senator Boxer re-introduced the same

19 legislation as the Humane Short Term Custody Act, citing reports of harsh CBP

20 detention conditions and noting, “CBP has written ‘detention standards’ for short term

21 custody, but there is evidence to suggest that these standards are not consistently

22

23

41 Memorandum re: Oversight of Unaccompanied Alien Children, Inspector General John Roth (July 30, 2014), http://1.usa.gov/1r3Myd1 https://www.oig.dhs.gov/

24

assets/Mgmt/2014/Over-Un-Ali-Chil.pdf; see also Unaccompanied Juveniles in INS Custody, Report No. I-2001-009, Executive Summary, Dep’t of Justice, Office of the

25

Inspector General (Sept. 28, 2001), available at http://www.justice.gov/oig/reports/ INS/e0109/exec.htm (“[D]eficiencies in the handling of juveniles continue to exist in

26

some INS districts, Border Patrol sectors, and headquarters that could have potentially serious consequences for the well-being of the juveniles.”).

27 42 Border Security, Economic Opportunity & Immigration Modernization Act, Senate Amend. 1260 to S.B. No. 744 (submitted June 13, 2013) 113th Congress (2013-2014) ,
28 available at https://www.congress.gov/amendment/113th-congress/senateamendment/1260./text.

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1 followed.”43 In September 2013, Representative Lucille Roybal-Allard introduced the

2 Protect Family Values at the Border Act, which included similar reforms related to

3 CBP detention conditions.44 To date, none of these legislative proposals have become

4 law.

5

167. CBP officials including Defendant Kerlikowske have publicly admitted

6 to knowledge of the punitive and inadequate conditions in the holding facilities. In

7 July 2014, in a press interview regarding a complaint filed on behalf of 116

8 unaccompanied children who experienced similar degrading conditions in Border

9 Patrol holding cells—including complaints of “being put in excessively uncomfortable

10 rooms, being left with the lights on all night so that they couldn’t sleep, being denied

11 medical care”—Kerlikowske stated that the complaints about the facility conditions

12 were “absolutely spot on.”45 He also acknowledged that detainees, at least children,

13 should not have to sleep on a concrete floor.46

14

168. The deplorable and unconstitutional conditions in Tucson Sector holding

15 cells are the direct result of Defendants’ policies and practices. Those conditions result

16 in serious risks to the health and well-being of Plaintiffs and putative class members.

17 They are inhumane and punitive, and bear no relationship to any legitimate

18 governmental purpose.

19

169. Detainees in the Tucson Sector are civil detainees, yet they face much

20 harsher conditions of confinement than criminal pre-trial detainees; the conditions are

21 also worse than those to which convicted persons in local jails and prisons are subject

22 and thus are per se punitive.

23

24

43 Press Release, Boxer Introduces Bill to Ensure Humane Treatment at Customs & Border Protection Detention Facilities, U.S. Senator Barbara Boxer (Dec. 12, 2013),

25

available at https://www.boxer.senate.gov/press/release/boxer-introduces-bill-toensure-humane-treatment-at-customs-and-border-protection-detention-facilities/.

26 44 H.R. No. 3130, available at https://www.govtrack.us/congress/bills/113/hr3130.

27

45 Transcript: Commissioner Kerlikowske’s Full Interview, NPR (July 18, 2014), available at http://www.npr.org/2014/07/18/332286063/transcript-commissioner-

28 kerlikowskes-full-interview.

46 Id.

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1

170. Defendants have failed to employ reasonable alternatives and less harsh

2 methods in the operation of these facilities. As a result, CBP detainees, all of whom

3 are civil detainees awaiting administrative processing, are held for extended periods in

4 conditions that are far more restrictive than necessary and thus the conditions amount

5 to prohibited punishment of detainees.

6

171. Given the Defendants’ familiarity with the conditions in Tucson Sector

7 detention facilities—including lack of beds, mattresses and other bedding; overcrowded

8 and filthy cells; very cold temperatures; inadequate food and drinking water; the

9 absence of any showers or hygiene items and the lack of adequate medical screening,

10 —their adoption of practices and policies that perpetuate these conditions reflects an

11 intention to punish persons believed to be unlawfully present in the United States. This

12 punitive intent is also reflected in the CBP’s policy of “Consequence Delivery,”

13 whereby Defendants seek to deter unauthorized immigration by inflicting specified

14 “consequences,”—punishment— including criminal prosecution and prison terms, on

15 unauthorized immigrants.47

16

172. The harsh conditions and mistreatment that define Tucson Sector

17 detention operations are themselves a form of punishment. As a Border Patrol

18 spokesman stated, in response to complaints of overcrowding and punitive holding cell

19 conditions in Texas, “That’s basically one of the consequence[s] of entering the

20 country illegally.”48 Agents frequently communicate the same point to detainees

21 directly. Brutal hold room conditions also make it more likely that detainees will be

22 coerced into “accepting” other consequences—such as criminal prosecution through

23 47 See Jeremy Slack et al., In Harm’s Way: Family Separation, Immigration

24

Enforcement Programs and Security on the US-Mexico Border, Journal on Migration & Human Security, Vol. 3 No. 2, at pp. 109-128 (2015), available at

25

http://jmhs.cmsny.org/ index.php/jmhs/article/ download/46/38 (Border Patrol’s Consequence Delivery System “mark[s] a shift from the deterrent strategy that, in the

26

1990s relied heavily on the dangers of the natural terrain to dissuade unauthorized border crossers, to one that actively punishes, incarcerates, and criminalizes them.”)

27 (internal citation omitted).

48 Amy Bracken, Immigrants, Legal Groups Allege Harsh Treatment at U.S. Borders,

28 PRI (Aug. 1, 2014), available at http://www.pri.org/stories/2013-08-01/immigrants-

legal-groups-allege-harsh-treatment-us-border.

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1 Operation Streamline or deportation without an opportunity to see a judge and without

2 the opportunity to seek relief available to them under the law—in order to be released

3 from Border Patrol’s holding cells.

4

173. There are no legal justifications for treating detainees in an inhumane and

5 punitive manner, or for holding them in grossly inadequate and unsafe conditions in

6 facilities that are not equipped for overnight or prolonged detention. Defendants’

7 policies and practices with respect to CBP detention conditions serve no legitimate

8 purpose.

9

174. Inhumane conditions in CBP holding cells are longstanding and well-

10 documented. Defendants are aware of and intentionally indifferent to these conditions

11 and to the serious risk of and actual harm imposed upon all Plaintiffs and putative class

12 members as a result of these conditions.

13

175. Plaintiffs have suffered irreparable harm as a result of being detained

14 under these conditions.

15

INJUNCTIVE RELIEF

16

176. Plaintiffs are entitled to a preliminary and permanent injunction.

17 Defendants have acted and threaten to act to deprive Plaintiffs and others they seek to

18 represent of their constitutional rights. Plaintiffs and others similarly situated have

19 suffered irreparable physical and psychological injuries and the loss of fundamental

20 due process rights and have been and will continue to be subjected to serious risks of

21 these same irreparable harms as the result of confinement in Border Patrol’s Tucson

22 Sector facilities. Defendants have been and are aware of all of the conditions and

23 deprivations complained of herein and have condoned or been intentionally indifferent

24 to such conduct. Plaintiffs have no plain, adequate, or speedy remedy at law.

25

CLASS ACTION ALLEGATIONS

26

177. Plaintiffs bring this action on behalf of themselves and all other persons

27 who are similarly situated, pursuant to Federal Rules of Civil Procedure 23(a) and

28 23(b)(2).

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1

178. Plaintiffs seek to represent a class consisting of:

2

All individuals who are now or in the future will be

3

detained for one or more nights at a CBP facility, including Border Patrol facilities, within the Border Patrol’s Tucson

4

Sector (“the Class”).

5

179. The putative class is so numerous that joinder of all members is

6 impracticable. CBP documents, produced in response to a FOIA request, indicate that

7 72,198 individuals were detained at Tucson Sector detention facilities between January

8 1, 2013 and June 30, 2013. Of these, 58,083 individuals, or 80.4 percent of the total

9 number, were in Border Patrol custody for 24 hours or longer. In the past two fiscal

10 years, more than 200,000 people were apprehended by Border Patrol in the Tucson

11 Sector alone.49 A sizeable percentage of those detained after apprehension spent at

12 least one night—and many spent more—in Border Patrol custody.

13

180. There are multiple questions of law and fact common to the putative

14 class, including:

15

a. Whether Defendants’ policies and practices of failing to provide

16 detainees with beds or bedding; overcrowding holding cells; illuminating them around

17 the clock; maintaining the temperature at an unreasonably cold setting and failing to

18 provide blankets to detainees; and failing to provide adequate food and water to

19 detainees—which factors alone or in combination interfere with Plaintiffs’ and putative

20 class members’ ability to sleep—violate the Due Process Clause of the Fifth

21 Amendment and the Administrative Procedure Act.

22

b. Whether Defendants’ policies and practices of overcrowding the

23 holding cells; maintaining the cells at unreasonably cold temperatures; failing to

24 adequately clean the cells; failing to regularly maintain working toilets; and failing to

25 provide detainees with soap to wash their hands after using the toilet or before eating,

26 with toothbrushes or toothpaste, or with showers or any opportunity to bathe—which

27 49 United States Border Patrol, Sector Profile—Fiscal Year 2013, available at
28 http://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal %20Year%202013%20Profile.pdf.

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1 factors alone or in combination deprive Plaintiffs and putative class members of shelter

2 that satisfies safety and sanitation standards—violate the Due Process Clause of the

3 Fifth Amendment and the Administrative Procedure Act.

4

c. Whether Defendants’ policies and practices of failing to adequately

5 screen detainees for possible medical problems upon admission; provide for the

6 administration of prescription drugs that are confiscated from detainees or provide

7 appropriate substitute medication; consistently and adequately provide access to

8 qualified medical personnel for detainees in need of medical care; and adequately and

9 consistently provide for the emergency medical needs of detainees—which factors alone

10 or in combination deprive Plaintiffs and putative class members of a safe and healthy

11 environment—violate the Due Process Clause of the Fifth Amendment and the

12 Administrative Procedure Act.

13

d. Whether Defendants’ policies and practices of providing Plaintiffs

14 and putative class members insufficient quantities of food; of following erratic meal

15 schedules; of providing food that is cold and nutritionally and calorically inadequate;

16 of providing food that is often expired and/or inedible; of not uniformly providing

17 Plaintiffs and putative class members with sufficient clean drinking water and of

18 failing to provide individual drinking cups when water is made available—which

19 factors alone or in combination deprive Plaintiffs and putative class members of the

20 need for adequate food and water—violate the Due Process Clause of the Fifth

21 Amendment and the Administrative Procedure Act.

22

e.

Whether Defendants’ policies and practices of setting the

23 thermostat in the holding cells at unreasonably low temperatures so that Plaintiffs and

24 putative class members are always cold, suffer pain and have difficulty sleeping; of

25 confiscating all but one layer of clothing from Plaintiffs and class members before

26 placing them in custody; of refusing to provide them with blankets while they are

27 detained, other than inadequate, thin aluminum sheets—which factors alone or in

28 combination deprive Plaintiffs and putative class members of the basic need for

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1 warmth—violate the Due Process Clause of the Fifth Amendment and the

2 Administrative Procedure Act.

3

181. The claims of the Plaintiffs are typical of the claims of the putative class.

4 Each of the Plaintiffs, like all putative class members, is subject to the conditions of

5 confinement challenged here.

6

182. All of the Plaintiffs will fairly and adequately represent the interests of all

7 members of the putative class because they seek relief on behalf of the class as a whole

8 and have no interests antagonistic to other members of the class. The Plaintiffs are

9 represented by counsel from Morrison & Foerster LLP, the ACLU Foundation of

10 Arizona; the National Immigration Law Center; the American Immigration Council,

11 and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. Counsel

12 are very experienced in class action and other complex litigation in both the detention

13 and immigration arenas and concerning constitutional law.50

14

183. Defendants have acted on grounds that apply generally to the putative

15 class, so that final injunctive relief or corresponding declaratory relief is appropriate

16 with respect to the class as a whole.

17

CLAIMS FOR RELIEF

18

FIRST CLAIM

19

(Violation of the Due Process Clause of the Fifth Amendment

to the United States Constitution: Deprivation of Sleep)

20

21

184. All of the foregoing allegations are repeated and incorporated as though

22 fully set forth herein.

23

24

25 50 For a small but representative sampling of the cases handled by counsel in this case, see Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014), reh’g denied, 784 F.3d 571 (9th Cir.
26 2015 (en banc); Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988), aff’d, Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990); Orantes-
27 Hernandez v. Holder, 321 F. App’x 625 (9th Cir. 2009); A.B.T. v. United States Citizen & Immigration Servs., No. 11-2108, 2013 U.S. Dist. LEXIS 160453 (W.D. Wash. Nov.
28 4, 2013); de Abadia-Peixoto v. United States Dep’t of Homeland Sec., No. 11-CV-4001 (N.D. Cal. docketed Aug. 15, 2011).

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1

185. Defendants have a practice of detaining Plaintiffs and putative class

2 members for one or more nights in holding cells located within Tucson Sector facilities.

3

186. The holding cells within the Tucson Sector facilities are neither designed

4 for overnight detention nor equipped to detain individuals overnight and do not meet

5 Plaintiffs’ basic human needs.

6

187. Defendants have a practice of not providing beds, mattresses, or other

7 bedding to Plaintiffs and other detainees forced to spend one or more nights in a

8 Tucson Sector holding cell.

9

188. As a result of Defendants’ practices, the only option available to

10 Plaintiffs and putative class members is to attempt to sleep on benches or directly on

11 the cold, concrete floor each night that they are held in a Tucson Sector holding cell.

12

189. Defendants also have practices of overcrowding holding cells;

13 illuminating them around the clock; maintaining the temperature at an unreasonably

14 cold setting and failing to provide blankets to detainees; and failing to provide adequate

15 food and water to detainees.

16

190. These additional adverse conditions—alone or in combination—further

17 serve to deprive Plaintiffs and class members of sleep during their periods of detention.

18

191. Defendants’ failure to provide Plaintiffs and putative class members with

19 a bed during their overnight detention violates the Due Process Clause of the Fifth

20 Amendment to the United States Constitution. The additional adverse conditions,

21 which—alone or in combination—interfere with Plaintiffs and putative class members’

22 ability to sleep, further violate the Due Process Clause of the Fifth Amendment.

23

192. By their practices described herein, Defendants subject Plaintiffs and

24 putative class members to a risk of and actual harm and to punishment. Defendants’

25 policies and practices are inflicted upon Plaintiffs and putative class members with the

26 intent to punish them and are excessively harsh in relation to any non-punitive or

27 legitimate purpose. Moreover, any non-punitive purpose that Defendants may have

28

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1 could be accomplished through alternative methods consistent with the constitutional

2 rights of Plaintiffs and class members.

3

193. The conditions of confinement imposed by Defendants are more

4 restrictive than necessary.

5

SECOND CLAIM

6

(Violation of the Due Process Clause of the Fifth Amendment

to the United States Constitution: Deprivation of Hygienic & Sanitary Conditions)

7

8

194. All of the foregoing allegations are repeated and incorporated as though

9 fully set forth herein.

10

195. Defendants have practices of detaining Plaintiffs and putative class

11 members in holding cells under conditions that are unsanitary and therefore hazardous

12 to their health. In accord with these policies and practices, Defendants overcrowd the

13 holding cells; maintain the cells at unreasonably cold temperatures; fail to adequately

14 clean the cells; fail to regularly maintain working toilets; and fail to provide detainees

15 with soap to wash their hands after using the toilet or before eating, with toothbrushes

16 or toothpaste, with showers or any opportunity to bathe, and with individual cups with

17 which to drink water.

18

196. Defendants’ practices of detaining Plaintiffs and putative class members

19 under unsanitary and hazardous conditions—alone or in combination—violate the Due

20 Process Clause of the Fifth Amendment to the United States Constitution.

21

197. Defendants’ policies and practices place the health of Plaintiffs and

22 putative class members at risk during their confinement in the Tucson Sector facilities

23 and after they have left these facilities. Defendants’ policies and practices are inflicted

24 upon Plaintiffs and putative class members with the intent to punish them and are

25 excessively harsh in relation to any non-punitive or legitimate purpose. Moreover, any

26 non-punitive purpose that Defendants may have could be accomplished through

27 alternative methods consistent with the constitutional rights of Plaintiffs and putative

28 class members.

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1

198. The conditions of confinement imposed by Defendants are more

2 restrictive than necessary.

3

THIRD CLAIM

4

(Violation of the Due Process Clause of the Fifth Amendment

to the United States Constitution: Deprivation of Adequate

5

Medical Screening and Care)

6

7

199. All of the foregoing allegations are repeated and incorporated as though

8 fully set forth herein.

9

200. Defendants deprive Plaintiffs and putative class members detained in

10 Tucson Sector holding cells of adequate and necessary medical screening and medical

11 care.

12

201. Defendants do not mandate or provide adequate medical screening of all

13 detainees for health problems—including for communicable diseases or mental

14 illness—prior to confining them. Defendants also fail to provide for the proper

15 administration of prescription drugs that are confiscated from detainees or provide

16 appropriate substitute medication; fail to consistently and adequately provide access to

17 qualified medical personnel for detainees in need of medical care; and fail to

18 adequately and consistently provide for the emergency medical needs of detainees.

19

202. The absence of adequate procedures for the medical needs of Plaintiffs

20 and putative class members—including adequate medical screening—is hazardous to

21 their health. This hazard is compounded by Defendants’ practices of failing to provide

22 detainees with adequate food and clean drinking water; overcrowding the holding cells;

23 maintaining cells at unreasonably cold temperatures; failing to adequately clean the

24 cells; failing to regularly maintain a sufficient number of working toilets; failing to

25 provide detainees with soap to wash their hands after using the toilet or before eating;

26 with toothbrushes or toothpaste; with showers or any opportunity to bathe; with an

27 adequate supply of sanitary napkins and diapers; and with individual cups with which

28 to drink water.

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1

203. Defendants’ practices of detaining Plaintiffs and putative class members

2 under unhealthy and hazardous conditions—alone or in combination—violate the Due

3 Process Clause of the Fifth Amendment to the United States Constitution.

4

204. Defendants’ policies and practices place the health of Plaintiffs and

5 putative class members at risk during their confinement in the Tucson Sector facilities

6 and after they have left these facilities. Defendants’ policies and practices are inflicted

7 upon Plaintiffs and putative class members with the intent to punish them and are

8 excessively harsh in relation to any non-punitive or legitimate purpose. Moreover, any

9 non-punitive purpose that Defendants may have could be accomplished through

10 alternative methods consistent with the constitutional rights of Plaintiffs and putative

11 class members.

12

205. The conditions of confinement imposed by Defendants are more

13 restrictive than necessary.

14

FOURTH CLAIM

15

(Violation of the Due Process Clause of the Fifth Amendment to the

United States Constitution: Deprivation of Adequate Food and Water)

16

17

206. All of the foregoing allegations are repeated and incorporated as though

18 fully set forth herein.

19

207. Defendants deprive Plaintiffs and putative class members detained in

20 Tucson Sector holding cells of adequate food and clean drinking water.

21

208. Defendants holding cell practices ignore that, prior to their apprehension

22 by Border Patrol agents, Plaintiffs and putative class members often have been walking

23 for days through the desert without enough food or water. They typically are famished

24 and suffering from moderate to severe dehydration.

25

209. Pursuant to Defendants’ practices, provision of food to Plaintiffs and

26 putative class members is erratic and inadequate. Food is sometimes withheld for an

27 entire day; on other occasions, detainees might be served one or two snacks per day.

28 Detainees are fed small portions that consist of either a child-size box of juice or a

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1 child-size packet of crackers or a small burrito. The food is cold and nutritionally and

2 calorically inadequate. In addition to the inadequate portions, the food is often expired

3 and/or inedible.

4

210. Defendants have a policy and practice of not always providing Plaintiffs

5 and putative class members with sufficient clean drinking water. In some instances, no

6 water is provided for an entire day. Some detainees have to drink water out of sinks

7 that are placed on top of the toilets and that are not regularly and thoroughly cleaned.

8 In other holding cells, detainees are given a single jug of water to share amongst

9 themselves. They are usually not provided with individual drinking cups; instead,

10 multiple detainees must share a cup or detainees must attempt to refashion their

11 discarded juice boxes to drink water.

12

211. Defendants’ above practices—alone or in combination—violate the Due

13 Process Clause of the Fifth Amendment to the United States Constitution.

14

212. Defendants’ policies and practices place the health of Plaintiffs and

15 putative class members at risk during their confinement in the holding cells and after

16 they have left these cells. Defendants’ policies and practices are inflicted upon

17 Plaintiffs and class members with the intent to punish them and are excessively harsh in

18 relation to any non-punitive or legitimate purpose. Moreover, any non-punitive

19 purpose that Defendants may have could be accomplished through alternative methods

20 consistent with the constitutional rights of Plaintiffs and putative class members.

21

213. The conditions of confinement imposed by Defendants are more

22 restrictive than necessary.

23

FIFTH CLAIM

24

(Violation of the Due Process Clause of the Fifth Amendment

to the United States Constitution: Deprivation of Warmth)

25

26

214. All of the foregoing allegations are repeated and incorporated as though

27 fully set forth herein.

28

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1

215. Defendants have a practice of setting the thermostat in the holding cells at

2 unreasonably low temperatures so that Plaintiffs and putative class members are always

3 cold. The cold temperature causes Plaintiffs and putative class members pain and

4 interferes with their sleep, especially because they are forced to sleep on frigid benches

5 or concrete floors. Defendants’ policy and practice is to confiscate all but one layer of

6 clothing from Plaintiffs and putative class members before placing them in custody,

7 and refusing to provide them with blankets while they are detained, other than

8 inadequate, thin aluminum sheets.

9

216. Defendants’ practices—alone or in combination—violate the Due Process

10 Clause of the Fifth Amendment to the United States Constitution.

11

217. Defendants’ policies and practices have harmed Plaintiffs and putative

12 class members and place them at risk of continued harm during their confinement in

13 holding cells and after they have left these cells. Defendants’ practices are inflicted

14 upon Plaintiffs and putative class members with the intent to punish them and are

15 excessively harsh in relation to any non-punitive and legitimate purpose. Moreover,

16 any non-punitive purpose that Defendants may have could be accomplished through

17 alternative methods consistent with the constitutional rights of Plaintiffs and putative

18 class members.

19

218. The conditions of confinement imposed by Defendants are more

20 restrictive than necessary.

21

SIXTH CLAIM

22

(Violation of the Administrative Procedure Act:

Agency Action Unlawfully Withheld)

23

24

219. All of the foregoing allegations are repeated and incorporated as though

25 fully set forth herein.

26

220. The Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), requires

27 a court to “compel agency action unlawfully withheld or unreasonably delayed.”

28

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1

221. CBP has promulgated extensive policies and procedures in the 2008

2 Memorandum and the CBP Security Policy and Procedures Handbook (HB1400-02B)

3 and elsewhere related to the operation of holding cells, including the minimum space

4 per detainee as well as the provision of food, water, and medical care.

5

222. CBP has failed to enforce those procedures.

6

223. CBP’s failure to enforce constitutes final agency action.

7

224. Plaintiffs and putative class members have suffered legal wrongs and

8 have been adversely affected and aggrieved by CBP’s failure to act.

9 PRAYER FOR RELIEF
10 225. Plaintiffs and the class they seek to represent have no adequate remedy at
11 law to redress the wrongs suffered as set forth in this Complaint. Plaintiffs and the
12 putative class have suffered and will continue to suffer irreparable injury as a result of
13 the unlawful acts, omissions, policies, and practices of Defendants, as alleged herein,
14 unless Plaintiffs and the putative class are granted the relief they request. The need for
15 relief is critical because the rights at issue are paramount under the United States
16 Constitution and the laws of the United States.
17 WHEREFORE, the Named Plaintiffs and the class they seek to represent
18 request that this Court grant them the following relief:
19 226. Declare that the suit is maintainable as a class action pursuant to Federal
20 Rule of Civil Procedure 23(a) and 23(b)(2);
21 227. Adjudge and declare that the acts, omissions, policies, and practices of
22 Defendants, and their agents, employees and officials, described herein, are in violation
23 of the rights of Plaintiffs and the class members they seek to represent under the
24 Administrative Procedure Act and the Due Process Clause of the Fifth Amendment,
25 which grants constitutional protection to the Plaintiffs and the class they represent;
26 228. Preliminarily and permanently enjoin Defendants, their agents,
27 employees, and officials from subjecting Plaintiffs and the class members they seek to
28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

52

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Case 4:15-cv-00250-DCB Document 1 Filed 06/08/15 Page 54 of 56

1 represent to the illegal and unconstitutional conditions, acts, omissions, policies, and

2 practices set forth above;

3

229. Order Defendants and their agents, employees, and officials to eliminate

4 the risk of harm that Plaintiffs and members of the class suffer due to the inadequate,

5 unsafe, and unhealthy conditions described above. Defendants’ plan shall include at a

6 minimum the following:

7

230. The provision of a bed and bedding to all detainees held overnight in any

8 Tucson Sector CBP facility;

9

231. Adequate access to soap, toothbrushes and toothpaste, paper towels,

10 sanitary napkins, diapers, showers and towels if held overnight, and sanitation which

11 satisfies constitutionally adequate standards for all detainees;

12

232. The provision of clean drinking water and nutritionally adequate meals

13 prepared and served in a safe and sanitary manner;

14

233. Uniform enforcement of constitutionally adequate standards with respect

15 to cell occupancy rates, temperature control, and all federal fire, health and safety

16 standards;

17

234. Policies and practices that reliably and adequately screen for medical,

18 dental, and mental health conditions that need immediate treatment;

19

235. Timely and competent responses to health care emergencies;

20

236. Court-ordered monitoring as appropriate;

21

237. Award Plaintiffs the costs of this suit, and reasonable attorneys’ fees and

22 litigation expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412;

23

238. Retain jurisdiction of this case until Defendants have fully complied with

24 the orders of this Court and there is a reasonable assurance that Defendants will

25 continue to comply in the future absent continuing jurisdiction; and

26

27

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Case 4:15-cv-00250-DCB Document 1 Filed 06/08/15 Page 55 of 56

1

239. Award such other and further relief as the Court deems just and proper.

2

3 Dated: June 8, 2015

By: /s/ Harold J. McElhinny

4

Harold J. McElhinny*

Kevin M. Coles*

5

Elizabeth G. Balassone*

MORRISON & FOERSTER LLP

6

425 Market Street

San Francisco, CA 94105-2482

7

Telephone: (415) 268-7000

Facsimile: (415) 268-7522

8

Email: HMcElhinny@mofo.com

Email: KColes@mofo.com

9

Email: EBalassone@mofo.com

10

Louise C. Stoupe*

11

Pieter S. de Ganon* MORRISON & FOERSTER LLP

12

Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome

13

Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522

14

Facsimile: +81-3-3214-6512 Email: LStoupe@mofo.com

15

Email: PdeGanon@mofo.com

16

Colette Reiner Mayer*

17

MORRISON & FOERSTER LLP 755 Page Mill Road

18

Palo Alto, CA 94304-1018 Telephone: (650) 813-5600

19

Facsimile: (650) 494-0792 Email: CRMayer@mofo.com

20

21 Dated: June 8, 2015 22 23 24 25 26 27 28

By:

/s/ Linton Joaquin

Linton Joaquin*

Karen C. Tumlin*

Nora A. Preciado*

NATIONAL IMMIGRATION LAW CENTER

3435 Wilshire Boulevard, Suite 2850

Los Angeles, CA 90010

Telephone: (213) 639-3900

Facsimile: (213) 639-3911

Email: joaquin@nilc.org

Email: tumlin@nilc.org Email: preciado@nilc.org

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

54

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1 2 3 Dated: June 8, 2015 4 5 6 7 8 9 10 11 12 Dated: June 8, 2015 13 14 15 16 17 18 19 20 Dated: June 8, 2015 21 22 23 24 25 26 27 28

By:

/s/ Mary Kenney

Mary Kenney*

Emily Creighton*

Melissa Crow*

AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200

Washington, DC 20005

Telephone: (202) 507-7512

Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org

Email: ecreighton@immcouncil.org

Email: mcrow@immcouncil.org

By:

/s/ James Duff Lyall

Victoria Lopez (Bar No. 330042)**

Daniel J. Pochoda (Bar No. 021979)

James Duff Lyall (Bar No. 330045)**

ACLU FOUNDATION OF ARIZONA

3707 North 7th Street, Suite 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

Email: vlopez@acluaz.org

Email: dpochoda@acluaz.org

Email: jlyall@acluaz.org

By:

/s/ Travis Silva

Travis Silva*

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS OF THE SAN FRANCISCO BAY

AREA

131 Steuart Street, Suite 400

San Francisco, CA 94105

Telephone: (415) 543-9444

Facsimile: (415) 543-0296

Email: tsilva@lccr.com

Attorneys for Plaintiffs *Pro hac vice motions forthcoming **Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

55

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 Case 4:15-cv-00250-DCB Document 4 Filed 06/08/15 Page 1 of 23

Harold J. McElhinny* 1 Kevin M. Coles*
Elizabeth G. Balassone* 2 MORRISON & FOERSTER LLP
425 Market Street 3 San Francisco, CA 94105-2482
Telephone: (415) 268-7000 4 Facsimile: (415) 268-7522
Email: HMcElhinny@mofo.com 5 Email: KColes@mofo.com
Email: EBalassone@mofo.com
6 Colette Reiner Mayer*
7 MORRISON & FOERSTER LLP 755 Page Mill Road
8 Palo Alto, CA 94304-1018 Telephone: (650) 813-5600
9 Facsimile: (650) 494-0792 Email: CRMayer@mofo.com
10 Attorneys for Plaintiffs
11 *Pro hac vice motions forthcoming
12 Additional counsel listed on signature page
13

14 IN THE UNITED STATES DISTRICT COURT

15 FOR THE DISTRICT OF ARIZONA

16

JANE DOE #1; JANE DOE #2; NORLAN

Case No.

17 FLORES, on behalf of themselves and all

others similarly situated,

PLAINTIFFS’ MOTION FOR

18

CLASS CERTIFICATION;

Plaintiff,

MEMORANDUM OF POINTS

19

v.

AND AUTHORITIES

20 Jeh Johnson, Secretary, United States Department of Homeland Security, in his
21 official capacity; R. Gil Kerlikowske, Commissioner, United States Customs &
22 Border Protection, in his official capacity; Michael J. Fisher, Chief of the United States
23 Border Patrol, in his official capacity; Jeffrey Self, Commander, Arizona Joint Field
24 Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent-Tucson Sector,
25 in his official capacity,

Oral Argument Requested

26

Defendant.

27

28

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Case 4:15-cv-00250-DCB Document 4 Filed 06/08/15 Page 2 of 23

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES..............................................................................................ii

4 I. INTRODUCTION ................................................................................................... 1

5 II. STATEMENT OF FACTS......................................................................................2

6

A. Tucson Sector Detention Practices...............................................................2

7

B. Representative Plaintiffs............................................................................... 5

8 III. ARGUMENT .......................................................................................................... 6

9

A. The Rule 23(a) Requirements for Class Certification Have Been

Satisfied ........................................................................................................ 6

10

1. The Proposed Class Is So Numerous That Joinder Is

11

Impracticable ..................................................................................... 6

12

a. Numerosity.............................................................................6

13

b. Impracticability of Joinder .....................................................7

14

2. The Class Presents Common Questions of Law and Fact ................ 8

15

3. The Claims of the Named Plaintiffs are Typical of the Claims

of the Members of the Proposed Class............................................11

16

4. The Named Plaintiffs and Their Counsel Will Adequately

17

Protect the Interests of the Proposed Class and Counsel are

Qualified to Litigate this Action ..................................................... 12

18

a. Named Plaintiffs...................................................................12

19

b. Counsel.................................................................................14

20

B. Plaintiffs’ Proposed Class Meets the Legal Standard Under

21

Rule 23(b)(2) .............................................................................................. 14

22 IV. CONCLUSION ..................................................................................................... 15

23

24

25

26

27

28

PLAINTIFFS’ MOT. FOR CLASS CERTIFICATION

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Case 4:15-cv-00250-DCB Document 4 Filed 06/08/15 Page 3 of 23

1 2 3 CASES

TABLE OF AUTHORITIES

Page(s)

4 Abdullah v. United States Sec. Assocs., Inc.,

5

731 F.3d 952 (9th Cir. 2013), cert. denied, 135 S. Ct. 53 (2014) ............................................................................................................... 9

6 Ali v. Ashcroft,

7

213 F.R.D. 390 (W.D. Wash. 2003), aff’d,

8

346 F.3d 873 (9th Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th Cir. 2005)............................................................................................. 7, 8

9 Armstrong v. Davis,

10

275 F.3d 849 (9th Cir. 2001)............................................................................................... 11

11 Bates v. United Parcel Serv., Inc.,

12

511 F.3d 974 (9th Cir. 2007) (en banc)................................................................................... 13

13 Bell v. Wolfish, 441 U.S. 520 (1979) ............................................................................................................... 1

14

Brown v. Plata,

15

131 S. Ct. 1910 (2011) ......................................................................................................... 10

16 Cnty. of Riverside v. McLaughlin,

17

500 U.S. 44 (1991) ............................................................................................................... 13

18 Ellis v. Costco Wholesale Corp.,

19

657 F.3d 970 (9th Cir. 2011)........................................................................................... 9, 11

20 Evon v. Law Offices of Sidney Mickell,

688 F.3d 1015 (9th Cir. 2012)............................................................................................. 12

21

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

22

528 U.S. 167 (2000) ................................................................................................................ 14

23 Gen. Tel. Co. of the Sw. v. Falcon,

24

457 U.S. 147 (1982) ............................................................................................................. 11

25 Gray v. Cnty. of Riverside,

No. EDCV 13-00444-VAP,

26

2014 U.S. Dist. LEXIS 150884 (C.D. Cal. Sept. 2, 2014) .............................................. 10

27 Haro v. Sebelius,

28

747 F.3d 1099 (9th Cir. Ariz. 2014)................................................................................... 13

PLAINTIFFS’ MOT. FOR CLASS CERTIFICATION

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1 Harris v. Palm Springs Alpine Estates, Inc.,

2

329 F.2d 909 (9th Cir. 1964)................................................................................................. 7

3 Henderson v. Thomas, 289 F.R.D. 506 (M.D. Ala. 2012)......................................................................................... 8

4

Hernandez v. Cnty. of Monterey,

5

No. 5:13-cv-2354-PSG,

6

2015 WL 399975 (N.D. Cal. Jan. 29, 2015) ..................................................................... 10

7 Inmates of San Diego Cnty. Jail in Cell Block 3B v. Duffy,

528 F.2d. 954 (9th Cir. 1975).............................................................................................. 13 8

9

Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004)................................................................................................. 1

10 Leyva v. Buley,

11

125 F.R.D. 512 (E.D. Wash. 1989) ...................................................................................... 8

12 Lynch v. Rank,

13

604 F. Supp. 30 (N.D. Cal. 1984), aff’d,

747 F.2d 528 (9th Cir. 1984), amended on reh’g,

14

763 F.2d 1098 (9th Cir. 1985)......................................................................................... 8, 14

15 Marcus v. Heckler,

16

620 F. Supp. 1218 (N.D. Ill. 1985)..................................................................................... 14

17 Orantes-Hernandez v. Smith,

541 F. Supp. 351 (C.D. Cal. 1982) ............................................................................. 6, 7, 12 18

19

Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959 (D. Ariz. 2011), aff’d,

20

695 F.3d 990 (9th Cir. 2012)............................................................................................... 10

21 Parsons v. Ryan,

289 F.R.D. 513 (D. Ariz. 2014), aff’d,

22

754 F.3d 657 (9th Cir.2014)...................................................................................................... 7

23 Parsons v. Ryan,

24

754 F.3d 657 (9th Cir. 2014), reh’g denied,

784 F.3d 571 990 (9th Cir. 2015) (en banc) ............................................................. 6, 9, 15 25

26 Pederson v. La. State Univ., 213 F.3d 858 (5th Cir. 2000)................................................................................................. 8

27

28

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1 Perez- Funez v. Dist. Dir. Immigration & Naturalization Serv.,

2

611 F. Supp. 990 (C.D. Cal. 1984) ..................................................................................... 13

3 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010)......................................................................................... 6, 13

4

Sherman v. Griepentrog,

5

775 F. Supp. 1383 (D. Nev. 1991)........................................................................................ 8

6 Wade v. Kirkland,

7

118 F.3d 667 (9th Cir. 1997)............................................................................................... 13

8 Wal-Mart Stores, Inc. v. Dukes,

9

131 S. Ct. 2451 (2011) ........................................................................................................... 9

10 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998)....................................................................................... 12, 15

11

Zinser v. Accufix Research Inst., Inc.,

12

253 F.3d 1180 (9th Cir. 2001), amended on other grounds,

13

273 F.3d 1266 (9th Cir. 2001)....................................................................................... 14, 15

14 STATUTES AND RULES

15 5 U.S.C. § 706(1) .......................................................................................................................... 1

16 Fed. R. Civ. P. 23................................................................................................................. passim

17 OTHER AUTHORITIES

18 Sector Profile—Fiscal Year 2013, United States Border Patrol , available at

19

http://www.cbp.gov/sites/default/files/documents/U.S.%20Border%20Patrol%20Fisca

l%20Year%202013%20Profile.pdf........................................................................................... 2

20

Sector Profile—Fiscal Year 2014, United States Border Patrol, available

21

at http://www.cbp.gov/sites/default/files/documents/USBP%20Stats%20FY2014%20

22

sector%20profile.pdf. ................................................................................................................ 2

23 William B. Rubenstein, et al., Newberg on Class Actions, § 3.12 at 198 (5th ed. 2011) ............... 6

24

25

26

27

28

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1 I. INTRODUCTION

2

The Due Process Clause of the Fifth Amendment to the United States Constitution

3 prohibits the federal government from punishing people who have not been convicted of a

4 crime. Bell v. Wolfish, 441 U.S. 520, 536-39 (1979); Jones v. Blanas, 393 F.3d 918, 931

5 (9th Cir. 2004). Yet in U.S. Customs and Border Protection (“CBP”) detention facilities

6 throughout the Tucson Sector of the U.S. Border Patrol (“Tucson Sector”), thousands of

7 civil detainees are held under punitive, inhumane conditions of confinement. These men,

8 women, and children are packed into overcrowded and filthy holding cells (or “hold

9 rooms”) with the lights glaring through the night; exposed to brutally cold temperatures;

10 deprived of sleep; denied adequate food, water, health screenings, and medical care, and

11 basic sanitation and hygiene items such as soap, sufficient toilet paper, sanitary napkins,

12 diapers, and showers; and held virtually incommunicado while the government decides

13 their fates. These unconscionable and plainly unlawful conditions exist in all of the

14 Tucson Sector facilities and are a direct result of Defendants’ policies and practices.

15

Plaintiffs, who are civil immigration detainees confined by Defendants in the

16 Tucson Sector, have brought the instant suit as a class action to challenge these

17 conditions. On behalf of themselves and others who are similarly situated, Plaintiffs seek

18 to enjoin Defendants from detaining them, and members of the proposed class, under

19 harsh, excessive, and punitive conditions of confinement in violation of the Due Process

20 Clause of the Fifth Amendment. They further seek to compel Defendants to abide by

21 CBP’s rules governing conditions of detention. 5 U.S.C. § 706(1).

22

Pursuant to rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure,

23 Plaintiffs respectfully move this Court to certify the following class with all named

24 Plaintiffs appointed as class representatives:

25

All individuals who are now or in the future will be detained

for one or more nights at a CBP facility, including Border

26

Patrol facilities, within the Border Patrol’s Tucson Sector.

27

28

PLAINTIFFS’ MOT. FOR CLASS CERTIFICATION

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Case 4:15-cv-00250-DCB Document 4 Filed 06/08/15 Page 7 of 23

1 II. STATEMENT OF FACTS

2

A. Tucson Sector Detention Practices

3

CBP maintains and operates multiple detention facilities in the Border Patrol’s

4 Tucson Sector. These facilities, located in the Cochise, Pima, Pinal, and Santa Cruz

5 Counties of Arizona, contain holding cells in which individuals apprehended by CBP are

6 confined pending processing and transport or release.

7

Of the 479,371 CBP apprehensions along the U.S.-Mexico border reported for

8 Fiscal Year 2014, approximately 18 percent occurred in the Tucson Sector; CBP

9 apprehended more than 200,000 individuals in the Tucson Sector in the past two years 10 alone.1 Defendants thus confine tens of thousands of these apprehended individuals—

11 men, women, and children—in its Tucson Sector holding cells annually and will continue

12 to do so.

13

Plaintiffs are among those detained by the Tucson Sector Border Patrol. They and

14 those they seek to represent are all civil detainees who have been or will be confined for

15 one or more nights in Tucson Sector holding cells subject to unconscionable conditions of

16 confinement.

17

In all the Tucson facilities defendants confine detainees for one or more nights in

18 holding cells, commonly known as “hieleras” (Spanish for “iceboxes”) for their frigid

19 temperatures. These brightly lit cells are routinely crowded beyond their capacity, and are

20 not designed for extended detention. They are not equipped with beds, and Defendants

21 generally do not provide detainees with bedding or blankets. As a result, detainees must

22 sleep on cold concrete floors and benches, and due to overcrowding, they frequently must

23 sit or stand for extended periods of time. (See, e.g., Declaration of James Duff Lyall in

24 Support of Plaintiffs’ Motion for Class Certification (hereinafter “Lyall Decl.”), Ex.1

25 1 Sector Profile—Fiscal Year 2014, United States Border Patrol, available at http://www.cbp.gov/
26 sites/default/files/documents/USBP%20Stats%20FY2014%20sector%20profile.pdf; Sector Profile—Fiscal Year 2013, United States Border Patrol , available at http://www.cbp.gov/
27 sites/default/files/documents/U.S.%20Border%20Patrol%20Fiscal%20Year%202013%20Profile. pdf.
28

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Case 4:15-cv-00250-DCB Document 4 Filed 06/08/15 Page 8 of 23

1 Pablo Lopez Ruiz Decl. ¶¶ 5, 11; Ex. 2, Julio Jimenez Tucum Decl. ¶ 7; Ex. 3, Adrian

2 Tapia Rascon Decl. ¶ 7; Ex. 4, Aurelio Ignacio Morales-Soto Decl. ¶ 12; Ex.5, Anselma

3 Angela Ambrosio Diaz Decl. ¶¶ 6, 7.) As a result, detainees are unable to get adequate

4 sleep, if sleep is possible at all. (See, e.g., Lyall Decl., Ex. 6, Fernando Munguilla Erasno

5 Decl. ¶ 8; Ex. 7, Juan Jesus Padron Rios Decl. ¶ 13; Ex. 8, Guadelupe Felipe Gaspar Decl.

6 ¶ 9; Ex. 9, Maria de Jesus Lopez Magdaleno Decl. ¶ 9; Ex. 10, Julio Chavez Ortiz Decl.

7 ¶ 12; Ex. 11, Jose Buelna Camacho Decl. ¶¶ 14,15; Ex. 12, Jose Cruz Ruvalcaba Martinez

8 Decl. ¶ 11; Ex.13, Brenda Chilel Lopez Decl. ¶¶ 7, 8; Ex. 14, Mario Roberto Zamora Diaz

9 Decl. ¶¶ 9,11; Ex. 15, Dolores Gonzalez Martin Decl. ¶ 10.)

10

In all facilities, Defendants subject detainees to painfully low temperatures in the

11 holding cells and do not provide detainees with clothing or blankets to alleviate the cold.

12 In fact, Defendants force detainees, including young children, to remove extra layers of

13 clothing. (See e.g., Lyall Decl., Ex. 16, Maria Ordonez Ortiz Decl. ¶ 23; Ex. 17, Jose Luis

14 Vergara Jimenez Decl. ¶ 10; Ex. 18, Luis Alberto Franco-Cruz Decl. ¶ 7; Ex. 19, Odilia

15 Velasquez Vasquez Decl. ¶¶ 8, 9; Ex. 20, Victor Hugo Rosas Garcia Decl. ¶ 8; Ex. 21,

16 Valdemar Perez Perez Decl. ¶¶ 8, 23; Ex. 22, Araceli Castro Vasquez Decl. ¶¶ 5, 8, 13,

17 14.) In some instances, agents threaten to turn down the temperature further if detainees

18 complain or request that the temperature be turned up or, in the estimation of the guards,

19 make too much noise. (See, e.g., Lyall Decl., Ex. 23, Maria Lorena Lopez Lopez Decl.

20 ¶ 17; Ex. 18, Luis Alberto Franco-Cruz Decl. ¶ 8; Ex. 24, Francisco Chay Quinones Decl.

21 ¶ 8.)

22

In all the facilities Defendants systematically deprive detainees of basic hygiene

23 items—soap, sufficient toilet paper, sanitary napkins, diapers for babies and toddlers—

24 and provide detainees no opportunity to bathe. (See, e.g., Lyall Decl., Ex. 25, Veronica

25 Rodriguez Alvarado Decl. ¶ 11; Ex. 26, Domitila Gomez Bartolom Decl. ¶ 14; Ex. 27,

26 Jose Garcia Rodriguez Decl. ¶ 18; Ex. 28, Soledad Hernandez Yescas Decl. ¶¶ 11, 22;

27 Ex. 29, Nelvia Mazariegos Morales Decl. ¶ 15; Ex. 30, Maura Velasquez Hernandez Decl.

28 ¶¶ 17, 18; Ex. 10, Julio Celso Chavez-Ortiz Decl. ¶ 15.) In addition, Defendants hold

PLAINTIFFS’ MOT. FOR CLASS CERTIFICATION

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Case 4:15-cv-00250-DCB Document 4 Filed 06/08/15 Page 9 of 23

1 detainees in unsanitary holding cells that are not regularly or properly cleaned, lack waste

2 receptacles, and often have one or more non-functioning toilets. (See, e.g., Lyall Decl.,

3 Ex. 31, Cecilio Medina Valencia Decl. ¶ 9; Ex. 32, Celifora Rodriguez Juarez Decl. ¶ 11;

4 Ex. 33, Nasario Gonzalez-Peleaz Decl. ¶ 9; Ex. 16, Maria Ordonez Ortiz Decl. ¶ 12;

5 Ex. 34, Angel Hernandez Reyes Decl. ¶¶ 10, 11; Ex. 35, Flora Elizabeth Gonzalez Gomez

6 Decl. ¶¶ 23, 24; Ex. 36, Irma Veronica Lima Galicia Decl. ¶¶ 19, 20, 21.)

7

Defendants do not mandate or provide adequate screening of detainees for health

8 problems upon admission to these CBP detention facilities even though many detainees

9 have medical conditions resulting from their journey through punishing desert

10 environments. In addition, Defendants do not consistently provide access to qualified

11 medical personnel or medically appropriate administration of medicine, often refusing or

12 failing to meet detainees’ explicit pleas for medical treatment or medicine adequately.

13 (See, e.g., Lyall Decl., Ex. 37, Yuri Perez Lopez Decl. ¶¶ 21, 29; Ex. 38, Sequen-Tesen

14 Reyes Ovidio Decl. ¶ 14; Ex. 9, Maria de Jesus Lopez Magdaleno Decl. ¶¶ 14 12, 13, 14,

15 27; Ex. 19, Odilia Velasquez Vasquez Decl. ¶ 19; Ex. 39, Adriana Trujillo Hernandez

16 Decl. ¶ 4; Ex. 40, Luis Carlos Valladares Martinez Decl. ¶ 15; Ex. 41, Adrian Vasquez

17 Morales Decl. ¶ 18; Ex. 5, Anselma Angela Ambrosio Diaz Decl. ¶ 10; Ex. 42, Judith

18 Soledad Morales Perez Decl. ¶¶ 9, 16; Ex. 10, Julio Celso Chavez-Ortiz Decl. ¶ 15; Ex. 6,

19 Fernando Munguilla Erasno Decl. ¶ 15; Ex.35, Flora Elizabeth Gonzalez Gomez Decl.

20 ¶¶ 29, 30.)

21

Defendants deny detainees in these facilities, who often are dehydrated, hungry and

22 sick when they are taken into CBP custody, sufficient access to clean drinking water or

23 adequate amounts of edible food. (See, e.g., Lyall Decl., Ex. 43, Jesus Alfredo Mesa

24 Barbosa Decl. ¶¶ 18, 32; Ex. 44, Reginalda Lopez Gomez Decl. ¶ 14; Ex. 45, Juan Reyes

25 Martinez Decl. ¶ 28; Ex. 46, Gustavo Huerta Saenz Decl. ¶ 12; Ex. 47, Jessica Margarito

26 Catarino Decl. ¶ 3; Ex. 26, Domitilia Gomez Bartolom Decl. ¶ 18; Ex. 48, Roberto Vargas

27 Martinez Decl. ¶ 11; Ex. 5, Anselma Angela Ambrosio Diaz Decl. ¶¶ 13, 17; Ex. 30,

28 Maura Velasquez Hernandez Decl. ¶¶ 17, 18; Ex. 42, Judith Soledad Morales Perez Decl.

PLAINTIFFS’ MOT. FOR CLASS CERTIFICATION

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Case 4:15-cv-00250-DCB Document 4 Filed 06/08/15 Page 10 of 23

1 ¶¶ 12, 21; Ex. 11, Jose Buelna Camacho Decl. ¶ 20; Ex. 21, Valdemar Perez Perez Decl.

2 ¶¶ 15, 25; Ex. 44, Reginalda Gonzalez Gomez Decl. ¶ 11; Ex. 49, Hugo Emilio Cuy Solis

3 Decl. ¶¶ 20, 28; Ex. 36, Irma Veronica Lima Galicia Decl. ¶ 22.)

4

Defendants’ policies and practices in these facilities ensure that the detainees are

5 cut off from the outside world, including prohibiting telephone calls to family members or

6 to counsel. (See, e.g., Lyall Decl., Ex. 37, Yuri Perez Lopez Decl. ¶ 20; Ex. 40, Luis

7 Carlos Valladares Martinez Decl. ¶ 14; Ex. 41, Adrian Vasquez Morales Decl. ¶ 17;

8 Ex. 50, Cesar Vergara Jimenez Decl. ¶¶ 13, 14.)

9

B. Representative Plaintiffs

10

Plaintiff Jane Doe #1 has been detained for approximately thirty hours in CBP

11 custody in Tucson Sector. During that time, Plaintiff Jane Doe #1 has been held in

12 extremely cold cells and has had difficulty sleeping due to the cold, the lack of beds, and

13 the lights being left on all night. Plaintiff Jane Doe #1 has had no access to beds or

14 bedding, showers, hygiene supplies, or to adequate food and water. Plaintiff Jane Doe #1

15 has not received a medical screening.

16

Plaintiff Jane Doe #2 has been detained for approximately thirty hours in CBP

17 custody in Tucson Sector. During that time, Plaintiff Jane Doe #2 has been held in

18 extremely cold cells with no access to beds or bedding, showers, hygiene supplies, or to

19 adequate food and water. Plaintiff Jane Doe #2 has not received a medical screening.

20

Plaintiff Norlan Flores has been detained on two occasions in CBP custody in

21 Tucson Sector. In 2007, Plaintiff Flores was detained for approximately seventy-two

22 hours. In 2014, Plaintiff Flores was detained for approximately thirty-six hours. In both

23 instances, Plaintiff Flores was held in extremely cold cells and was unable to sleep due to

24 the severe cold, overcrowding, and lack of bedding. Plaintiff Flores had no access to beds

25 or bedding, showers, hygiene supplies, or to adequate food and water. Plaintiff Flores did

26 not receive any medical screening and was not able to contact his attorney or consulate.

27 Because of his prior detentions, Plaintiff Flores believes there is, and there is in fact, a

28

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1 substantial likelihood that he will again be detained overnight in CBP custody in Tucson

2 Sector.

3

The conditions confronted by Plaintiffs Jane Doe #1, Jane Doe #2, and Norlan

4 Flores mirror those of the putative class members. A detailed description of these

5 conditions is set forth in the Complaint at ¶¶ 15-64.

6 III. ARGUMENT

7

This is the paradigmatic case for class certification, as it challenges Defendants’

8 Sector-wide policies and practices that result in intolerable and unconstitutional conditions

9 of confinement for Plaintiffs and the class members they seek to represent.

10

A. The Rule 23(a) Requirements for Class Certification Have Been

Satisfied

11

12

Courts in this Circuit have a long history of certifying classes of detained and

13 imprisoned individuals challenging conditions of confinement generally, and immigration

14 detention policies and practices specifically. See, e.g., Parsons v. Ryan, 754 F.3d 657,

15 681-82 (9th Cir. 2014), reh’g denied, 784 F.3d 571 (9th Cir. 2015) (en banc); Rodriguez v.

16 Hayes, 591 F.3d 1105, 1111 (9th Cir. 2010); Orantes-Hernandez v. Smith, 541 F. Supp.

17 351, 372 (C.D. Cal. 1982). Like the classes in these suits, the instant class satisfies the

18 requirements for class certification under of rule 23(a) as discussed in detail below.

19

1. The Proposed Class Is So Numerous That Joinder Is

Impracticable 20

a. Numerosity 21

22

Rule 23(a)(1) requires that the class be “so numerous that joinder is impracticable.”

23 A class with 40 or more members is presumed to be sufficient to satisfy the numerosity

24 requirement. William B. Rubenstein, et al., Newberg on Class Actions, § 3.12 at 198 (5th

25 ed. 2011).

26

The proposed class far exceeds the minimum level needed.

27

28

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1

The Border Patrol apprehends and detains tens of thousands of men, women and

2 children in its Tucson Sector annually. Documents produced by CBP in response to a

3 Freedom of Information Act (“FOIA”) request indicate that during a six-month period,

4 from January 1, 2013 to June 30, 2013, 72,198 individuals were detained in Tucson Sector

5 CBP facilities. (See Declaration of Guillermo Cantor in Support of Motion for Class

6 Certification ¶ 6.) The agency’s FOIA response additionally shows that 58,083 of these

7 individuals, 80.4 percent of the total number detained, were in CBP custody for 24 hours

8 or longer. (See id. at ¶ 10.)

9

Given the volume of apprehensions in the Tucson Sector, the number of

10 individuals who are or will be forced to spend one or more nights in a CBP Tucson Sector

11 holding cell is surely in the many thousands per year. Moreover, “[w]here the exact size

12 of the class is unknown but general knowledge and common sense indicate that it is large,

13 the numerosity requirement is satisfied.” Orantes-Hernandez, 541 F. Supp. at 370

14 (citation omitted); see also Ali v. Ashcroft, 213 F.R.D. 390, 408 (W.D. Wash. 2003), aff’d,

15 346 F.3d 873, 886 (9th Cir. 2003), vacated on other grounds, 421 F.3d 795 (9th Cir.

16 2005) (citations omitted) (“[T]he Court does not need to know the exact size of the

17 putative class, ‘so long as general knowledge and common sense indicate that it is

18 large.’”) (citing Perez- Funez v. Dist. Dir., Immigration & Naturalization Serv., 611 F.

19 Supp. 990, 995 (C.D. Cal. 1984)).

20

b. Impracticability of Joinder

21

In addition to class size, the Court must consider the impracticability of redressing

22 the claims of detainees by joinder or individual lawsuits; neither is a practical solution

23 here. “[I]mpracticability does not mean ‘impossibility,’ but only the difficulty or

24 inconvenience of joining all members of the class.” Harris v. Palm Springs Alpine

25 Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964) (citation omitted); Parsons v. Ryan,

26 289 F.R.D. 513, 516 (D. Ariz. 2013), aff’d, 754 F.3d 657 (9th Cir. 2014) (finding joinder

27 of thousands of inmates would be “impracticable, if not impossible”).

28

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1

First, joinder is impracticable where, as here, the geographic location of proposed

2 class members includes multiple facilities spread across four counties in the Border

3 Patrol’s Tucson Sector. See Sherman v. Griepentrog, 775 F. Supp. 1383, 1389 (D. Nev.

4 1991) (holding that poor, elderly plaintiffs dispersed over a wide geographic area could

5 not bring multiple lawsuits without great hardship). Second, joinder is impracticable

6 where, as here, proposed class members, by reason of such factors as financial inability,

7 fear of challenging the government, lack of understanding that a cause of action exists,

8 and lack of representation are unable or unlikely to pursue their claims individually. See

9 Lynch v. Rank, 604 F. Supp. 30, 36 (N.D. Cal. 1984), aff’d 747 F.2d 528 (9th Cir. 1984),

10 amended on reh’g, 763 F.2d 1098 (9th Cir. 1985) (noting that limited economic means

11 may interfere with class members’ ability to bring individual lawsuits and should be

12 considered when analyzing impracticability of joinder). The proposed class members

13 have little to no financial resources and no ability to contact family members or counsel

14 while detained. In addition, these individuals often have limited if any familiarity with the

15 legal process, including what rights they have. See, e.g., Leyva v. Buley, 125 F.R.D. 512,

16 515 (E.D. Wash. 1989) (“[J]oinder of 50 individual migrant workers as plaintiffs would be

17 extremely burdensome, especially in light of their . . . limited knowledge of the American

18 legal system [and] limited or non-existent English skills).

19

Finally, where, as here, the class is inherently transitory, and “includes unnamed,

20 unknown future members,” joinder is impracticable. Ali, 213 F.R.D. at 408-09 (citations

21 omitted); Pederson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000) (“the fact

22 that the class includes unknown, unnamed future members also weighs in favor of

23 certification”); Henderson v. Thomas, 289 F.R.D. 506, 510 (M.D. Ala. 2012) (“[T]he fluid

24 nature of a plaintiff class—as in the prison-litigation context—counsels in favor of

25 certification of all present and future members.”) (citing Kilgo v. Bowman Transp., Inc.,

26 789 F.2d 859, 878 (11th Cir. 1986).

27

2. The Class Presents Common Questions of Law and Fact

28

Rule 23(a)(2) requires questions of law or fact that are common to the class and

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1 that “class members ‘have suffered the same injury.’” Wal-Mart Stores, Inc. v. Dukes,

2 131 S. Ct. 2451, 2551 (2011) (citation omitted). To satisfy the commonality requirement,

3 “[a]ll questions of fact and law need not be common.” Ellis v. Costco Wholesale Corp.,

4 657 F.3d 970, 981 (9th Cir. 2011) (citation omitted); rather, one shared legal issue can be

5 sufficient, Abdullah v. United States Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013),

6 cert. denied, 135 S. Ct. 53 (2014). Upholding certification of a class of Arizona prisoners

7 alleging systemic Eighth Amendment violations, the Ninth Circuit explained, “‘[w]here

8 the circumstances of each particular class member vary but retain a common core of

9 factual or legal issues with the rest of the class, commonality exists.’” Parsons, 754 F.3d

10 at 675 (citation omitted).

11

For a common question of law to exist, the putative class members’ claims “must

12 depend upon a common contention” that is “of such a nature that it is capable of classwide

13 resolution—which means that determination of its truth or falsity will resolve an issue that

14 is central to the validity of each one of the claims in one stroke.” Dukes, 131 S. Ct at

15 2551. Thus, “[w]hat matters to class certification . . . is not the raising of common

16 ‘questions’ . . . but, rather the capacity of a classwide proceeding to generate common

17 answers apt to drive the resolution of the litigation.” Id. (citation omitted).

18

Here, the class—individuals who have been or will be confined to a Tucson Sector

19 holding cell for at least one night—shares a common core of salient facts and challenges

20 policies and practices that exist in all Border Patrol Stations that hold detainees within the

21 Tucson Sector. The class members also share the following common questions of law:

22

x Whether, as set out in Plaintiffs’ first and sixth causes of action and ¶¶ 15-

64 of the Complaint, Defendants’ policies and practices result in the

23

deprivation of Plaintiffs’ and putative class members’ right to sleep, in

violation of the Due Process Clause of the Fifth Amendment and the

24

Administrative Procedure Act.

25

x Whether, as set out in Plaintiffs’ second and sixth causes of action and ¶¶

15-64 of the Complaint, Defendants’ policies and practices result in the

26

deprivation of Plaintiffs’ and putative class members’ right to hygienic and

sanitary conditions, in violation of the Due Process Clause of the Fifth

27

Amendment and the Administrative Procedure Act.

28

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1

x Whether, as set out in Plaintiffs’ third and sixth causes of action and ¶¶ 15-

64 of the Complaint, Defendants’ policies and practices result in the

2

deprivation of Plaintiffs’ and putative class members’ right to adequate

medical care, in violation of the Due Process Clause of the Fifth

3

Amendment and the Administrative Procedure Act.

4

x Whether, as set out in Plaintiffs’ fourth and sixth causes of action and ¶¶ 15-

64 of the Complaint, Defendants’ policies and practices result in the

5

deprivation of Plaintiffs’ and putative class members’ right to adequate food

and water, in violation of the Due Process Clause of the Fifth Amendment

6

and the Administrative Procedure Act.

7

x Whether, as set out in Plaintiffs’ fifth and sixth causes of action and ¶¶ 15-

64 of the Complaint, Defendants’ policies and practices result in the

8

deprivation of Plaintiffs’ and putative class members’ right to warmth, in

violation of the Due Process Clause of the Fifth Amendment and the

9

Administrative Procedure Act.

10

“In a civil rights suit, ‘commonality is satisfied where the lawsuit challenges a

11 system-wide practice or policy that affects all of the putative class members.’” Ortega-

12 Melendres v. Arpaio, 836 F. Supp. 2d 959, 989 (D. Ariz. 2011) (quoting Armstrong v.

13 Davis, 275 F.3d 849, 868 (9th Cir. 2001)), aff’d, 695 F.3d 990 (9th Cir. 2012).

14 Defendants’ system-wide policies and practices found in each of the Tucson sector

15 facilities, result in inhumane and punitive conditions that violate the law and create a

16 significant risk of serious harm to all class members. The instant action is in line with

17 numerous decisions following Dukes that confirm commonality is appropriate in civil

18 rights cases alleging endemic system-wide deficiencies in detention conditions. See, e.g.,

19 Hernandez v. Cnty. of Monterey, No. 5:13-cv-2354-PSG, 2015 WL 399975, at *18 (N.D.

20 Cal. Jan. 29, 2015) (without class actions challenging “systemic deficiencies in prison

21 conditions,” “it is unlikely that … prison conditions that violate the Eighth Amendment

22 could ever be corrected by legal action” (quotations and citation omitted)); Gray v. Cnty.

23 of Riverside, No. EDCV 13-00444-VAP (OPx), 2014 U.S. Dist. LEXIS 150884, at *109

24 (C.D. Cal. Sept. 2, 2014) (commonality satisfied where class challenged systemic policies

25 —both written and unwritten—that governed the provision of medical and mental health

26 care in County jails; see also Brown v. Plata, 131 S. Ct. 1910 (2011) (affirming class-

27 wide injunctive relief to remedy inadequate medical and mental health care in all

28 California prisons).

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1

Here, Plaintiffs are subjected to CBP’s systemic confinement practices and policies

2 and the common answer as to the legality of each set of resulting conditions will “‘drive

3 the resolution of the litigation.’” Ellis, 657 F.3d at 981 (quoting Dukes, 131 S. Ct. at

4 2551). For example, should this Court find that forcing civil detainees to sleep on the

5 floor, alone or in combination with other adverse conditions, deprives them of sleep in

6 violation of the Fifth Amendment’s Due Process Clause, Plaintiffs will prevail on this

7 claim. Necessarily there will be some factual variations in individual cases but these are

8 insufficient to defeat commonality.

9

3. The Claims of the Named Plaintiffs are Typical of the Claims of

the Members of the Proposed Class

10

11

Rule 23(a)(3) specifies that the claims of the representatives must be “typical of the

12 claims . . . of the class.” Meeting the typicality requirement follows from the presence of

13 common questions of law. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 n.13

14 (1982). To establish typicality, “a class representative must be part of the class and

15 possess the same interest and suffer the same injury as the class members.” Id. at 156

16 (quotations and citation omitted). As with commonality, factual differences among class

17 members do not defeat typicality provided there are legal questions common to all class

18 members. See Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001) (recognizing that a

19 class of prisoners subject to discriminatory treatment by defendants would suffer different

20 injuries due to different disabilities, but those “minor” differences were “insufficient to

21 defeat typicality”).

22

The claims of the named Plaintiffs are typical of the claims of the proposed class.

23 As described in the Complaint, all named Plaintiffs have spent one or more nights in

24 Border Patrol holding cells within the Tucson Sector and have been exposed to the

25 appalling conditions in these cells that result from Defendants’ policies and practices.

26 Plaintiffs seek to represent a class challenging Defendants’ practices and policies and the

27 resulting unlawful detention conditions, which create a substantial risk of harm to

28 detainees. The named Plaintiffs and putative class members are united in their interest

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1 and injury, share a common core of salient facts, and raise common legal claims. Thus,

2 the element of typicality is met.

3

4. The Named Plaintiffs and Their Counsel Will Adequately Protect

the Interests of the Proposed Class and Counsel are Qualified to

4

Litigate this Action

5

Rule 23(a)(4) requires that “the representative parties will fairly and adequately

6 protect the interests of the class.” “In making this determination, courts must consider

7 two questions: ‘(1) do the named plaintiffs and their counsel have any conflicts of interest

8 with other class members and (2) will the named plaintiffs and their counsel prosecute the

9 action vigorously on behalf of the class?’” Evon v. Law Offices of Sidney Mickell,

10 688 F.3d 1015, 1031 (9th Cir. 2012) (citation omitted). “Whether the class

11 representatives satisfy the adequacy requirement depends on ‘the qualifications of counsel

12 for the representatives, an absence of antagonism, a sharing of interests between

13 representatives and absentees, and the unlikelihood that the suit is collusive.’” Walters v.

14 Reno, 145 F.3d 1032, 1046 (9th Cir. 1998) (citation omitted).

15

a. Named Plaintiffs

16

The named Plaintiffs will fairly and adequately represent the interests of all

17 proposed class members as they seek declaratory and injunctive relief on behalf of the

18 class as a whole, share a common interest in ensuring the protection of their constitutional

19 rights, and have no interest antagonistic to other members of the class. See, e.g., Orantes-

20 Hernandez, 541 F. Supp. at 371. The class members’ mutual goal is to have the Court

21 declare Defendants’ challenged policies and practices unlawful and to enjoin further

22 inhumane detention conditions. All Plaintiffs are detained in Tucson Sector holding cells,

23 and have spent at least one night there, suffering from the harsh, punitive conditions at

24 issue. All Plaintiffs contend that Defendants’ policies and practices governing the

25 conditions in these facilities violate Plaintiffs’ due process rights and CBP’s own

26 guidelines on detention conditions.

27

The fact that a named Plaintiff may no longer be detained when this motion is

28 decided does not impact their ability to fairly and adequately represent the class.

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1 Perez-Funez v. Dist. Dir. Immigration & Naturalization Serv., 611 F. Supp. 990, 997-98

2 (C.D. (rejecting defendant’s argument that because an immigration detainee representative

3 could win immigration relief and thus leave the class, he would be an inadequate class

4 representative). The short-term nature of the detention makes the class members’ claims

5 “inherently transitory” and protected under an exception to the mootness doctrine for class

6 actions. The certification of the class would “relate back” to the original complaint,

7 overriding the intervening fact that a named plaintiff’s individual claim has become moot.

8 Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir. 2014) (the mootness of the named

9 plaintiff’s claim did not moot the action on behalf of a class of Medicare beneficiaries

10 when the claim was “inherently transitory” (quotations and citation omitted)); Wade v.

11 Kirkland, 118 F.3d 667, 670 (9th Cir. 1997) (finding the district court could certify a class

12 of short-term inmates pursuant to the “relation back” doctrine even if the named plaintiffs

13 claims were moot); see Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (when

14 named plaintiffs’ claims have become moot, the “relation back” doctrine should apply if

15 the class is “inherently transitory” (quotations and citations omitted)); Inmates of San

16 Diego Cnty. Jail in Cell Block 3B v. Duffy, 528 F.2d. 954, 956 (9th Cir. 1975) (finding the

17 certification of a class of pretrial criminal detainees “relat[ed] back” to the filing of the

18 complaint when the original named plaintiffs’ claims were mooted out before the court

19 could rule on the class certification motion (quotations and citation omitted). Because of

20 the short-term nature of Plaintiffs’ claims, Defendants’ unlawful conduct will never be

21 redressed absent class-wide relief. Cf. Rodriguez v. Hayes, 591 F.3d at 1123 (finding that,

22 without class certification, putative class members’ claims would become moot before the 23 district court could come to a decision).2

24

25

2 Plaintiffs have article III standing because “[i]n a class action, standing is

satisfied if at least one named plaintiff meets the requirements”—i.e., alleges a personal

26 injury fairly traceable to the defendant’s unlawful conduct and likely to be redressed by

the requested relief. Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007)

27 (en banc). Plaintiffs are filing their complaint simultaneously with the filing of this

motion, and while currently detained by CBP under unconstitutional conditions of

28 confinement. An injunction prohibiting CBP from so detaining Plaintiffs would redress

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1

b. Counsel

2

Plaintiffs also will be able to prosecute this matter vigorously and will adequately

3 protect the interests of the absent class members. Counsel are deemed qualified when

4 they can establish their experience in previous class actions and cases involving the same

5 area of law. Lynch, 604 F. Supp. at 37; Marcus v. Heckler, 620 F. Supp. 1218, 1223-24

6 (N.D. Ill. 1985). Plaintiffs are represented by the ACLU Foundation of Arizona, the

7 American Immigration Council, the National Immigration Law Center, the Lawyers’

8 Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP,

9 which collectively have extensive expertise in class action litigation regarding the rights

10 of immigrants and conditions of detention. Counsel have been counsel of record in

11 numerous class actions and cases that successfully obtained relief for immigrant classes.

12 (See, e.g., Declarations of Mary A. Kenney, Victoria Lopez, Linton Joaquin (with

13 exhibit), and Harold J. McElhinny in Support of Plaintiffs’ Motion for Class

14 Certification.) In sum, Plaintiffs’ counsel will vigorously represent both the named and

15 absent class members.

16

B. Plaintiffs’ Proposed Class Meets the Legal Standard Under

Rule 23(b)(2)

17

18

Plaintiffs also meet the requirements of rule 23(b)(2) because “the party opposing

19 the class has acted or refused to act on grounds generally applicable to the class, thereby

20 making appropriate final injunctive relief or corresponding declaratory relief with respect

21 to the class as a whole.” Fed. R. Civ. P. 23(b)(2). Plaintiffs challenge—and seek

22 declaratory and injunctive relief from—systemic policies and practices that subject them

23 and others similarly situated to inhumane and unconstitutional conditions of confinement.

24 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001) (finding

25

26 Plaintiffs’ injury. Because standing is determined as of the time the complaint is filed and need not be maintained throughout all stages of the litigation, it matters not that Plaintiffs
27 might be released before an injunction is granted. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91 (2000).
28

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1 certification under rule 23(b)(2) appropriate “where the primary relief sought is

2 declaratory or injunctive”), amended on other grounds, 273 F.3d 1266 (9th Cir. 2001);

3 Walters, 145 F.3d at 1047 (“We note that with respect to 23(b)(2) in particular, the

4 government’s dogged focus on the factual differences among the class members appears

5 to demonstrate a fundamental misunderstanding of the rule. . . . It is sufficient if class

6 members complain of a pattern or practice that is generally applicable to the class as a

7 whole.”). Courts have found that “[e]ven if some class members have not been injured by

8 the challenged practice, a class may nevertheless be appropriate.” Walters, 145 F.3d at

9 1047.

10

As the Ninth Circuit has explained, rule 23(b)(2) “was adopted in order to permit

11 the prosecution of civil rights actions.” Id. In this vein, courts have certified classes in

12 cases like this one that allege unconstitutional conditions of confinement resulting from

13 systemic policies and practices. See, e.g., Parsons, 754 F.3d at 687 (“injunctive relief

14 stemming from allegedly unconstitutional conditions of confinement are the quintessential

15 type of claims that Rule 23(b)(2) was meant to address”).

16

Here Defendants have created and applied policies and practices that affect all

17 individuals who spend one or more nights in Border Patrol holding cells in the Tucson

18 Sector. Defendants’ actions meet the requirements of rule 23(b)(2) as Defendants’ actions

19 are generally applicable to Plaintiffs and unnamed class members alike.

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

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1 IV. CONCLUSION

2

For the foregoing reasons, Plaintiffs satisfy the requirements of rules 23(a) and

3 23(b)(2). Accordingly, Plaintiffs respectfully request that the Court certify this case as a

4 class action as proposed by Plaintiffs and appoint Plaintiffs’ counsel as class counsel.

5

6 Dated: June 8, 2015

By: /s/ Harold J. McElhinny

7

Harold J. McElhinny*

Kevin M. Coles*

8

Elizabeth G. Balassone*

MORRISON & FOERSTER LLP

9

425 Market Street

San Francisco, CA 94105-2482

10

Telephone: (415) 268-7000

Facsimile: (415) 268-7522

11

Email: HMcElhinny@mofo.com

Email: KColes@mofo.com

12

Email: EBalassone@mofo.com

13

Louise C. Stoupe*

14

Pieter S. de Ganon* MORRISON & FOERSTER LLP

15

Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome

16

Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522

17

Facsimile: +81-3-3214-6512 Email: LStoupe@mofo.com

18

Email: PdeGanon@mofo.com

19

Colette Reiner Mayer* MORRISON & FOERSTER LLP

20

755 Page Mill Road Palo Alto, CA 94304-1018

21

Telephone: (650) 813-5600 Facsimile: (650) 494-0792

22

Email: CRMayer@mofo.com

23

24

25

26

27

28

PLAINTIFFS’ MOT. FOR CLASS CERTIFICATION

16

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1 Dated: June 8, 2015 2 3 4 5 6 7 8 9 10 11 Dated: June 8, 2015 12 13 14 15 16 17 18 19 20 Dated: June 8, 2015 21 22 23 24 25 26 27 28

By:

/s/ Linton Joaquin

Linton Joaquin*

Karen C. Tumlin*

Nora A. Preciado*

NATIONAL IMMIGRATION LAW CENTER

3435 Wilshire Boulevard, Suite 2850

Los Angeles, CA 90010

Telephone: (213) 639-3900

Facsimile: (213) 639-3911

Email: joaquin@nilc.org

Email: tumlin@nilc.org

Email: preciado@nilc.org

By:

/s/ Mary Kenney

Mary Kenney*

Emily Creighton*

Melissa Crow*

AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200

Washington, DC 20005

Telephone: (202) 507-7512

Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org

Email: ecreighton@immcouncil.org

Email: mcrow@immcouncil.org

By:

/s/ Victoria Lopez

Victoria Lopez (Bar No. 330042)**

Daniel J. Pochoda (Bar No. 021979)

James Duff Lyall (Bar No. 330045)**

ACLU FOUNDATION OF ARIZONA

3707 North 7th Street, Suite 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

Email: vlopez@acluaz.org

Email: dpochoda@acluaz.org

Email: jlyall@acluaz.org

PLAINTIFFS’ MOT. FOR CLASS CERTIFICATION

17

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1 Dated: June 8, 2015 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By:

/s/ Travis Silva

Travis Silva*

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS OF THE SAN FRANCISCO BAY

AREA

131 Steuart Street, Suite 400

San Francisco, CA 94105

Telephone: (415) 543-9444

Facsimile: (415) 543-0296

Email: tsilva@lccr.com

Attorneys for Plaintiffs
*Pro hac vice motions forthcoming **Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

PLAINTIFFS’ MOT. FOR CLASS CERTIFICATION

18

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Case 4:15-cv-00250-DCB Document 4-1 Filed 06/08/15 Page 1 of 2

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6 [Tbd], on behalf of themselves and all others
7 similarly situated,

Case No.

8

9

v.

Plaintiffs,

[PROPOSED] ORDER CERTIFYING CLASS ACTION

10
Jeh Johnson, Secretary, United States 11 Department of Homeland Security, in his
official capacity; R. Gil Kerlikowske, 12 Commissioner, United States Customs &
Border Protection, in his official capacity; 13 Michael J. Fisher, Chief of the United States
Border Patrol, in his official capacity; Jeffrey 14 Self, Commander, Arizona Joint Field
Command, in his official capacity; Manuel 15 Padilla, Jr., Chief Patrol Agent-Tucson Sector,
in his official capacity, 16
Defendants. 17

18

19

The Court, having considered Plaintiffs’ Motion for Class Certification pursuant to

20 Rule 23(a) and (b)(2), orders as follows:

21

Pursuant to Rule 23(a) and (b)(2), the Court CERTIFIES this action as a class

22 action with respect to all of Plaintiffs’ Claims for Relief on behalf of the following class:
23

24 All individuals who are now or in the future will be detained

25

for one or more nights at a CBP facility, including Border

Patrol facilities, within the Border Patrol’s Tucson Sector. 26

27

28

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1

Pursuant to Rule 23(g), the Court APPOINTS Harold J. McElhinny, Kevin M.

2 Coles, Elizabeth Balassone, Louise C. Stoupe, Pieter S. de Ganon, and Colette R. Verkuil

3 of Morrison & Foerster LLP; Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado of

4 the National Immigration Law Center; Mary Kenney, Emily Creighton, and Melissa Crow

5 of the American Immigration Council; Victoria Lopez, Daniel J. Pochoda, and James Duff

6 Lyall of the ACLU Foundation of Arizona; and Travis Silva of the Lawyers’ Committee

7 for Civil Rights of the San Francisco Bay Area to be Class counsel.

8

9

IT IS SO ORDERED.

10

11

12 Dated: _______________________ 13

___________________________________ United States District Court Judge

14

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2
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 Case 4:15-cv-00250-DCB Document 56 Filed 08/28/15 Page 1 of 19

1 Harold J. McElhinny* Kevin M. Coles*
2 Elizabeth Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105-2482
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: HMcElhinny@mofo.com Email: KColes@mofo.com
6 Email: EBalassone@mofo.com

7 Attorneys for Plaintiffs

8 * Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

9 Additional counsel listed on signature page

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

14 Jane Doe #1; Jane Doe #2; Norlan Flores, on Case No. 4:15-cv-00250-TUC-DCB

behalf of themselves and all others similarly

15 situated,

PLAINTIFFS’ MOTION FOR

SANCTIONS

16

Plaintiffs,

CLASS ACTION

17

v.

Oral Argument Requested

18 Jeh Johnson, Secretary, United States

Department of Homeland Security, in his

(Assigned to the

19 official capacity; R. Gil Kerlikowske,

Honorable David C. Bury)

Commissioner, United States Customs &

20 Border Protection, in his official capacity;

Action Filed: June 8, 2015

Michael J. Fisher, Chief of the United States

21 Border Patrol, in his official capacity; Jeffrey

Self, Commander, Arizona Joint Field

22 Command, in his official capacity; Manuel

Padilla, Jr., Chief Patrol Agent-Tucson Sector,

23 in his official capacity,

24

Defendants.

25

26

27

28

PLAINTIFFS’ MOTION FOR SANCTIONS CASE NO. 4:15-CV-00250-DCB
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1

TABLE OF CONTENTS

2

Page

3

4 TABLE OF AUTHORITIES..............................................................................................ii

5 I. INTRODUCTION ................................................................................................... 1

6 II. BACKGROUND ..................................................................................................... 2

7 III. ARGUMENT .......................................................................................................... 5

8

A. Defendants Engaged in Spoliation of Critical Evidence. ............................. 5

9

1. Defendants Had an Obligation to Preserve the Video

Footage that They Destroyed and Continue to Destroy. ...................6

10 2. Defendants Evinced a Culpable State of Mind. ................................ 7

11 3. The Destroyed Video Footage is Relevant to Plaintiffs’

12

Claims................................................................................................ 9

13

4. Defendants Cannot Credibly Claim That the

Preservation of Relevant Footage Would Have Caused

14

an Undue Burden...............................................................................9

15

B. Sanctions Are Appropriate, and Should Include an Adverse

Inference and the Immediate Production of Remaining

16

Videographic Evidence. ............................................................................. 10

17 IV. CONCLUSION ..................................................................................................... 11

18

19

20

21

22

23

24

25

26

27

28

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1 2 3 CASES

TABLE OF AUTHORITIES

Page(s)

4 Apple Inc. v. Samsung Elecs. Co.,

881 F. Supp. 2d 1132 (N.D. Cal. 2012) ......................................................................... 8 5

6

Food Servs. of Am., Inc. v. Carrington, No. CV–12–00175–PHX–GMS, 2013 WL 4507593 (D. Ariz. Aug. 23, 2013),

7

reconsideration denied, 2013 WL 5655664 (Oct. 17, 2013)......................................... 8

8 Glover v. BIC Corp.,

9

6 F.3d 1318 (9th Cir. 1993) ........................................................................................... 5

10 Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006) ............................................................................... 5, 9, 11

11

Pettit v. Smith,

12

45 F. Supp. 3d 1099 (D. Ariz. 2014) ............................................................................. 6

13 Slaughter-Payne v. Shinseki,

14

522 F. App’x 409 (9th Cir. 2013) .................................................................................. 9

15 Slep-Tone Entm’t Corp. v. Granito,

16

No. CV–12–298–TUC DCB, 2014 WL 65297 (D. Ariz. Jan. 8, 2014) .......................................................... 6, 7, 9, 10

17

Surowiec v. Capital Title Agency, Inc.,

18

790 F. Supp. 2d 997 (D. Ariz. 2011) ..................................................................... 10, 11

19 Zubulake v. UBS Warburg LLC,

20

220 F.R.D. 212 (S.D.N.Y. 2003) ................................................................................... 5

21 RULES

22 Fed. R. Civ. P.

23

Rule 26(b)(2)(B) .......................................................................................................... 10 Rule 37 ........................................................................................................................... 5

24

Rule 37(b) ...................................................................................................................... 5

Rule 37(e)....................................................................................................................... 8

25

Rule 37(f) advisory committee note to 20006 amendment ....................................... 7, 8

26 Fed. R. Evid.

27

Rule 401 ......................................................................................................................... 9

Rule 401(b) .................................................................................................................... 9 28

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1 OTHER AUTHORITIES

2 Budget in Brief, Fiscal Year 2016 at 10, available at

3

http://www.dhs.gov/sites/default/files/publications/FY_2016_DHS_Budget_in_

Brief.pdf ....................................................................................................................... 10

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

Defendants have destroyed critical video-recordings that demonstrated that

3 immigrant detainees in Tucson Sector Border Patrol stations were deprived of sleep in

4 overcrowded rooms, exposed to unsanitary conditions, denied adequate food, and

5 otherwise subjected to unconstitutional conditions of confinement. (Defs.’ Mot. to

6 Dismiss (ECF No. 52) at 6–17.) Defendants knew they had an obligation to preserve the

7 video-recordings and even reassured Plaintiffs’ counsel that they had “take[n] all required

8 preservation steps.” (Declaration of Colette R. Mayer in Support of Plaintiffs’ Motion for

9 Sanctions (“Mayer Decl.”) filed herewith, ¶ 4 and Ex. C.) Despite these assurances,

10 Defendants stood by and let approximately two months of video-recordings be destroyed,

11 apparently including the recordings related to the identified Doe plaintiffs. Worse,

12 Defendants permitted this destruction to occur while Plaintiffs sought the same video-

13 recordings in its expedited discovery motion filed on June 23, 2015. (ECF No. 25.)

14

This Court’s order of August 14, 2015, requiring Defendants to produce the video-

15 recordings, forced Defendants to admit what they had done. In summary, from early June

16 to mid-August, Defendants took few steps, if any, to preserve relevant evidence.

17 Defendants failed to issue a litigation hold at the outset of this case and took no steps to

18 determine whether relevant video footage existed and was preserved. Defendants also

19 failed to ensure that they had the technical wherewithal to preserve footage—a fact that

20 Defendants now advance to justify their continued spoliation.

21

Given Defendants’ reckless disregard for the well-established obligation to

22 preserve all relevant evidence, sanctions are warranted. The destruction of relevant

23 evidence must cease immediately. Plaintiffs seek an order (1) issuing adverse inferences

24 for the trier of fact; and (2) requiring Defendants immediately to produce a copy of the

25 oldest retained video-recording for each detainee holding area. This motion is urgent

26 because, despite this Court’s order that Defendants “not destroy or record over any video

27 surveillance tapes of any and all detainee holding areas” (ECF No. 51), it appears

28 Defendants continue to erase stored surveillance footage even today.

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1 II. BACKGROUND

2

Plaintiffs filed the Complaint in this action on June 8, 2015. (ECF No. 1.) On

3 June 10, 2015, Plaintiffs’ counsel sent via email to Department of Homeland Security

4 (“DHS”) Office of the General Counsel copies of a preservation letter addressed to the

5 Office of the General Counsel, U.S. Customs and Border Protection (“CBP”) Office of the

6 Chief Counsel, and CBP Assistant Chief Counsel (hereafter “Preservation Letter”).

7 (Mayer Decl., ¶ 2 and Ex. A.) A copy of the same letter was delivered to those agencies

8 via Fed-Ex on June 11. (Id. at ¶ 2.) The letter (1) demanded an immediate halt to

9 “business practices that destroy potential evidence” including “scheduled destruction of

10 backup media” and other practices; (2) identified among the items of evidence to preserve

11 “video recordings, audio recordings, digital recordings . . . pictures, photographs, films,

12 computer records [and] voice recordings;” and (3) requested that all DHS, CBP and

13 Border Patrol employees and contractors be given prompt notification of their duty to

14 preserve evidence. (Id. at Ex. A.)

15

Defendants were served with the Complaint between June 12 and June 16, 2015

16 (Mayer Decl., ¶ 8), and on June 17, 2015, Sarah Fabian and Dillon Fishman from the U.S.

17 Department of Justice both entered appearances as counsel for all Defendants. (ECF

18 Nos. 18, 23.)

19

On July 14, 2015, Plaintiffs’ counsel sent an email to Ms. Fabian and Mr. Fishman,

20 attaching a copy of the Preservation Letter and reminding Defendants of their duty to

21 preserve evidence. (Mayer Decl., ¶ 3 and Ex. B.) Plaintiffs’ counsel specifically noted

22 that it “wanted to make sure [Defendants’ counsel] had received a copy and that it has

23 been sent to all relevant personnel.” (Id. at Ex. B.) The following day, Mr. Fishman

24 acknowledged receipt of the letter and stated that Defendants had “taken all required

25 preservation steps” and would “continue to comply with the relevant rules and laws.”

26 (Mayer Decl., ¶ 4 and Ex. C.)

27

On June 23, 2015, Plaintiffs filed a Motion for Expedited Discovery. (ECF

28 No. 25.) Plaintiffs sought permission to “[r]eview and reproduce all . . . surveillance

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1 video footage.” (Id. at 7.) In their Opposition, Defendants nowhere argued that the

2 surveillance video footage Plaintiffs sought was irrelevant. (See Opp’n to Plts.’ Mot. for

3 Expedited Disc. (ECF No. 39).) Defendants did argue, however, “There Is No Basis to

4 Find That the Evidence [Plaintiffs] Seek Will Be Unavailable in the Normal Course of

5 Discovery,” and that “there is no basis to believe . . . that Defendants will intentionally

6 destroy or transfer evidence in this case.” (Id. at 7-8.)

7

On August 13, 2015, at the hearing on Plaintiffs’ Motion for Expedited Discovery,

8 the Court ordered Defendants “not to record or record over or otherwise destroy any such

9 surveillance tapes . . . and to preserve those which are presently in their possession which

10 have not been recorded over or otherwise destroyed.” (Mayer Decl,, ¶ 5 and Ex. D at

11 41:9-13). The following day, August 14, 2015, the Court issued a written order requiring

12 that Defendants “shall not destroy or record over any video surveillance tapes . . . and

13 shall preserve such surveillance tapes currently in their possession.” (ECF No. 51, ¶ 8.)

14

On August 19, 2015, Defendants filed a “Notice of Facts Regarding Compliance

15 with Court’s Order” (ECF No. 53) and supporting Declaration of George Allen (ECF

16 No. 53-1). These documents acknowledge that:

17

x Defendants’ counsel did not know the relevant maintenance procedures for

video recordings taken at Border Patrol stations before the August 13, 2015

18

hearing (ECF No. 53 at 1);

19

x Border Patrol is “currently implementing emergency measures to comply”

with the Court’s August 14, 2015 Order (id. at 2);

20

x Border Patrol expected to have additional temporary electronic storage in

21

place within 48 to 72 hours of the notice (id.);

22

x Assistant Chief Patrol Agent George Allen directed Tucson Sector stations

to determine the location of all cameras recording any detainee holding

23

areas and the corresponding periods of video footage retention only after

learning about the Court’s August 13, 2015 Order (id.); 24

x “[N]ew video continuously records over stored video” (id.), meaning video

25

surveillance tapes were continuously destroyed for more than two months

while this litigation was pending; 26

x Border Patrol did “not currently have the capability to maintain video

27

surveillance” beyond the 15 to 30 days capacity of their digital storage

devices “such as digital video recorders (DVR) and computer hard drives”

28

(id. at 2-3).

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1

On Friday, August 21, 2015, Plaintiffs’ counsel sent a letter via email and certified

2 mail to Ms. Fabian and Mr. Fishman addressing Plaintiffs’ concerns with Defendants’

3 August 19, 2015 Notice, including that the notice made no mention of any effort to

4 preserve video recordings prior to August 13, 2015. (Mayer Decl., ¶ 6 and Ex. E.) The

5 letter requests that Defendants provide information regarding any notice to Defendants’

6 employees regarding their duty to preserve evidence and information regarding “any

7 destruction, deletion or erasure of video surveillance media.” (Id. at Ex. E.) Plaintiffs’

8 counsel received no response to the letter. (Id. at ¶ 6.)

9

On Monday, August 24, 2015, Plaintiffs’ counsel sent a follow-up letter seeking to

10 meet and confer with Defendants’ counsel regarding the substance of Plaintiffs’

11 August 21, 2015 letter. (Mayer Decl., ¶ 7 and Ex. F.) Again, Plaintiffs received no

12 response. (Id. at ¶ 7.)

13

On August 26, 2015, Plaintiffs’ counsel telephoned the Court’s law clerk to ask

14 about the appropriate expedited procedure for resolving the issues raised in Plaintiffs’

15 August 21 and 24, 2015 letters. (Mayer Decl., ¶ 9.) The Clerk initiated a meet and confer

16 with counsel for both parties. During the meet and confer, Defendants’ counsel,

17 Ms. Fabian, represented that Plaintiffs were not entitled to the information they requested,

18 and to the extent they were entitled to any information, Defendants’ counsel had no

19 intention of providing that information. (Id.)

20

On August 27, 2015, Defendants filed a “Second Notice of Facts Regarding

21 Compliance with Court’s Order” (ECF No. 55) (“Second Notice”) and supporting

22 declarations of George Allen (“Aug. 27 Allen Decl.”) (ECF No. 55-1) and Samuel R.

23 Shivers III (ECF No. 55-2). These documents acknowledge that:

24

x “[T]he stations have made the operational decision to continue, where

possible, recording current video footage for the protection of officers and

25

staff . . . even though this automatically causes recording over some existing

stored surveillance footage.” (Second Notice at 2.) 26

x Border Patrol is still working “to bring online the additional capacity to

27

store video in full compliance with the Court’s [August 14, 2015] order.”

(Id. at 2-3.) 28

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1

x Only four of the eight stations in Tucson Sector currently “have the

resources to store recorded video footage on an ongoing basis.” (Aug. 27,

2

Allen Decl. ¶ 8.)

3

x As of August 26, 2015, closed circuit television digital video recorders were

failing, not operational or disconnected and powered down in four of the

4

eight Border Patrol Tucson Sector stations. (Shivers Decl. ¶ 9.)

5

x Two stations were “currently working to overcome operational difficulties

to implement the emergency upgrade” necessary to comply with the Court’s

6

August 14, 2015 Order. (Aug. 27 Allen Decl. ¶ 8.)

7

x A number of unspecified “technical and access issues” were encountered

upon installation of disk storage arrays, and that unspecified “[r]emediation

8

plans were put into action on those DVRS that experienced technical or

access issues.” (Shivers Decl. ¶¶ 5–6.)

9 x “[T]he oldest continuous video [at Douglas Station] is from July 6, 2015,”

10

nearly a month after this action was commenced. (Id. at ¶ 9.g.)

11

x The security system at Wilcox Station “is not compatible with OIT’s backup

solution.” (Id. at ¶ 9.h.)

12

13 III. ARGUMENT

14

A. Defendants Engaged in Spoliation of Critical Evidence.

15

Spoliation is “the destruction or significant alteration of evidence, or the failure to

16 preserve property for another’s use as evidence[,] in pending or reasonably foreseeable

17 litigation.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)

18 (citation omitted). Trial courts have the “inherent discretionary power to make

19 appropriate evidentiary rulings in response to the destruction or spoliation of evidence,”

20 Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993), and may impose sanctions for

21 spoliation under their inherent powers to manage their own affairs, Leon v. IDX Sys.

22 Corp., 464 F.3d 951, 958 (9th Cir. 2006). Moreover, where—as here—a party “fails to

23 obey an order to provide and permit discovery,” courts may impose sanctions under

24 Federal Rule of Civil Procedure 37. Fed. R. Civ. P. 37(b); Leon, 464 F.3d at 958.

25

“‘A party seeking sanctions for spoliation of evidence must prove the following

26 elements: 1) the party having control over the evidence had an obligation to preserve it

27 when it was destroyed or altered, 2) the destruction or loss was accompanied by a

28

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1 ‘culpable state of mind,’ and 3) the evidence that was destroyed or altered was relevant to

2 the claims or defenses of the party that sought the discovery of the spoliated evidence.’”

3 Slep-Tone Entm’t Corp. v. Granito, No. CV–12–298–TUC DCB, 2014 WL 65297, at *3

4 (D. Ariz. Jan. 8, 2014) (Bury, J.) (quoting Surowiec v. Capital Title Agency, Inc., 790 F.

5 Supp. 2d 997, 1005 (D. Ariz. 2011)).

6

1. Defendants Had an Obligation to Preserve the Video Footage

that They Destroyed and Continue to Destroy.

7

8

A duty to preserve information, including videographic information, arises when a

9 party knows or should know that the information is relevant to pending or future

10 litigation. Pettit v. Smith, 45 F. Supp. 3d 1099, 1105 (D. Ariz. 2014). The duty is

11 unquestionably triggered “when litigation actually commences.” Id. Plaintiffs filed their

12 Complaint on June 8, 2015. This triggered Defendants’ duty to preserve.

13

Defendants, moreover, were reminded of their obligation to preserve the specific

14 evidence at issue in this motion on or around June 10, 2015, when Plaintiffs sent the

15 Preservation Letter. (Mayer Decl., ¶ 2 and Ex. A.) The letter notified Defendants of their

16 “ongoing duty to preserve all evidence relevant to this litigation,” including “video

17 recordings . . . digital recordings [and] films.” (Id.) It demanded that Defendants

18 “immediately halt all routine business practices that destroy potential evidence, including

19 but not limited to document destruction . . . server back-up tape rotation . . . scheduled

20 destruction of back-up media [and] re-imaging of drives.” (Id.) And it requested that

21 Defendants “promptly communicate the preservation obligation to all DHS, CBP, and

22 Border Patrol employees and contractors.” (Id).

23

On July 14, 2015, Plaintiffs mailed a copy of the Preservation Letter to

24 Defendants’ counsel, who, the following day, acknowledged receipt and assured Plaintiffs

25 that Defendants “have taken all required preservation steps, and will continue to comply

26 with the relevant rules and law.” (Mayer Decl., ¶¶ 3-4 and Exs. B-C.)

27

Notwithstanding Defendants’ notice—and notwithstanding their assurance that

28 they had “taken all the required preservation steps”—Defendants failed to suspend CBP

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1 stations’ automatic-delete protocol and failed to preserve video footage of (among other

2 things) the detainee holding areas. Indeed, it was not until August 14, 2015, when this

3 Court ordered Defendants “not [to] destroy or record over any video surveillance tapes of

4 any and all detainee holding areas [and to] preserve such surveillance tapes currently in

5 their possession,” (ECF No. 51 at 3), that Defendants finally took “emergency steps” to

6 preserve the footage (see Defs.’ Notice of Facts Regarding Compliance with Ct.’s Order

7 (ECF No. 53) at 2).

8

Even then, Defendants only promised full compliance on or around August 22,

9 2015. (Id. (declaring intention to comply with the Order “within 48-72 hours”).)

10 Defendants, however, have failed to meet even this deadline. On August 27, 2015,

11 Defendants filed a “Second Notice of Facts Regarding Compliance with Court’s Order”

12 with supporting declarations. (ECF Nos. 55, 55-1, 55-2.) These documents establish that,

13 nearly two weeks after the Court ordered Defendants not to “destroy or record over any

14 video surveillance tapes of any and all detainee holding areas” and to “preserve such

15 surveillance tapes currently in their possession,” Defendants were still failing to comply

16 with their preservation obligations. Defendants’ failure continues.

17

This Court has noted that a “party engages in spoliation if he or she has ‘some

18 notice that the documents were potentially relevant’ to the litigation before they were

19 destroyed.” Slep-Tone, 2014 WL 65297, at *3 (citation omitted). At the very latest,

20 Defendants were on notice on July 15, 2015, the day Defendants assured Plaintiffs that

21 they were preserving evidence. Yet for several weeks thereafter, Defendants continued to

22 destroy—or failed to prevent the destruction of—videographic evidence.

23

2. Defendants Evinced a Culpable State of Mind.

24

Even after litigation had commenced, even after receiving a preservation demand

25 letter, and even after assuring Plaintiffs that they “ha[d] taken all the required preservation

26 steps,” Defendants kept their automatic-delete protocol in place. Defendants only

27 undertook preservation efforts when ordered to do so by this Court. But it does not take a

28 court order to trigger the preservation obligation. See Fed. R. Civ. P. 37(f) advisory

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1 committee note to 2006 amendment (“A preservation obligation may arise from many

2 sources, including common law, statutes, regulations, or a court order in the case”).

3

Defendants’ post-Order conduct makes it clear that had they taken their

4 preservation obligations seriously, they could have preserved weeks of video footage.

5 Two months after this litigation began, for the very first time Defendants:

6

x “[D]etermine[d] the location of all cameras that were currently recording

any detainee holding areas and the corresponding periods of video footage

7

retention.” (Aug. 19, 2015 Declaration of George Allen (ECF No. 53-1)

(“Aug. 19 Allen Decl.”) ¶ 4.)

8

x Took “urgent steps to address [Tucson Sector’s] needs for additional

9

electronic storage space for video footage to ensure full compliance with the

Court’s order.” (Id. at ¶ 6.)

10

x Promised “additional recording capacity functioning on all cameras in the

11

Tucson Sector.” (Id.)

12

Defendants’ failure to take these very measures in June, when Defendants were

13 indisputably on notice, is evidence that Defendants behaved willfully, and therefore

14 culpably: “When a party on notice intentionally destroys, rather than accidentally loses,

15 th[e] evidence, it is a ‘willful’ spoliator even if it did not intend to deprive an opposing

16 party of relevant evidence.” Food Servs. of Am., Inc. v. Carrington, No. CV–12–00175–

17 PHX–GMS, 2013 WL 4507593, at *21 (D. Ariz. Aug. 23, 2013), reconsideration denied,

18 2013 WL 5655664 (Oct. 17, 2013) (citing Leon, 464 F.3d at 959). At the very least,

19 Defendants’ failure to suspend their automatic-delete protocol evidences the necessary

20 culpable state of mind. E.g., Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 2d 1132,

21 1146–47 (N.D. Cal. 2012).

22

Lest there be any doubt, Defendants are not entitled to Rule 37(e)’s safe harbor

23 from sanctions arising from the loss of electronically stored information as a result of the

24 “routine, good faith operation of an electronic information system.” Fed. R. Civ. P. 37(e).

25 This safe harbor provision does not apply to parties who fail to stop the operation of a

26 system that is obliterating information that may be discoverable in litigation. See Fed. R.

27 Civ. P. 37(f) advisory committee note to 2006 amendment (“A party is not permitted to

28 exploit the routine operation of an information system to thwart discovery obligations by

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1 allowing that operation to continue in order to destroy specific stored information that it

2 [was] required to preserve”).

3

3. The Destroyed Video Footage is Relevant to Plaintiffs’ Claims.

4

Relevance for spoliation purposes tracks Federal Rule of Evidence 401. Slep-Tone,

5 2014 WL 65297, at *5. This is a low bar, Slaughter-Payne v. Shinseki, 522 F. App’x 409,

6 410 (9th Cir. 2013), and is one that is easily surmounted here.

7

The video footage of detainee holding areas would reveal the cleanliness of hold

8 cells, detainees’ access to beds and bedding, the existence of medical screening, and a

9 host of other facts that are “of consequence in determining” whether the conditions of

10 confinement in Defendants’ facilities pass constitutional muster. Fed. R. Evid. 401(b). In

11 addition, the footage would serve to demonstrate that Defendants systematically fail to

12 abide by their own policies and procedures in violation of the Administrative Procedure

13 Act.

14

Defendants have never disputed the relevance of the footage—not in their

15 Opposition to Plaintiffs’ Motion for Expedited Discovery (ECF No. 39), nor during the

16 August 13 hearing (Mayer Decl., ¶ 5 and Ex. D). Nor could they. As the only visual

17 evidence of Defendants’ misconduct, the footage is not merely relevant, but critical to

18 Plaintiffs’ claims. Now that footage has been destroyed, Defendants may try to minimize

19 this point. But because “the relevance of . . . [destroyed] [evidence] cannot be clearly

20 ascertained because the [evidence] no longer exist[s],” Defendants “can hardly assert any

21 presumption of irrelevance as to the destroyed [evidence].” Leon, 464 F.3d at 959

22 (internal quotes and citation omitted; second and third brackets added).

23

4. Defendants Cannot Credibly Claim That the Preservation of

Relevant Footage Would Have Caused an Undue Burden.

24

25

Defendants may claim that preservation of the evidence would have placed an

26 undue burden on Defendants. But any such claim would confuse the obligation to

27 preserve with the requirement to produce materials in discovery. All evidence, even

28 inaccessible back-up tapes must be preserved even though “[a] party need not provide

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1 discovery of electronically stored information from sources that the party identifies as not

2 reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). In

3 any event, Defendants own post-Order conduct demonstrates that the footage Plaintiffs

4 seek was in no way physically inaccessible. Nor was the cost of further backup storage 5 prohibitive.1 An initial “expenditure of approximately $10,000, with an additional

6 expenditure of $5,000 every 90-120 days” is not negligible. (See “Notice of Facts

7 Regarding Compliance with Court’s Order” (ECF No. 53) at 2.) But given that the CBP’s

8 2015 budget was over $12.7 billion, the relative burden of storing the footage—even for

9 many months—can hardly be deemed undue. See U.S. Department of Homeland

10 Security, Budget in Brief, Fiscal Year 2016 at 10, available at

11 http://www.dhs.gov/sites/default/files/publications/FY_2016_DHS_Budget_in_Brief.pdf.

12

B. Sanctions Are Appropriate, and Should Include an Adverse Inference

and the Immediate Production of Remaining Videographic Evidence.

13

14

“Courts in this Circuit have suggested that a ‘finding of fault or simple negligence

15 is a sufficient basis on which a [c]ourt can impose sanctions against a party that has

16 destroyed documents.’” Surowiec, 790 F. Supp. at 1008 (quoting Melendres v. Arpaio,

17 No. CV–07–2513–PHX–GMS, 2010 WL 582189, at *5 (D. Ariz. Feb. 12, 2010)).

18 Defendants’ conduct was not merely negligent; it was grossly negligent, reckless, and

19 arguably in bad faith. Sanctions are appropriate.

20

In fashioning sanctions, Courts look to what would “best (1) deter[] parties from

21 future spoliation, (2) place[] the risk of an erroneous judgment on the spoliating party, and

22 (3) restore[] the innocent party to their rightful litigation position.’” Slep-Tone, 2014 WL

23 65297, at * 3 (citation omitted). “Sanctions that a federal court may impose for spoliation

24 include assessing attorney’s fees and costs, giving the jury an adverse inference

25 1 In any event, Defendants’ counsel never raised the issue of cost or other burden,
26 nor did they seek any kind of compromise when they provided assurances to Plaintiffs’ counsel that they had “take[n] all required preservation steps.” (Mayer Decl., ¶ 4 and
27 Ex. C.)
28

PLAINTIFFS’ MOTION FOR SANCTIONS

CASE NO. 4:15-CV-00250-DCB

10

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Case 4:15-cv-00250-DCB Document 56 Filed 08/28/15 Page 15 of 19

1 instruction, precluding evidence, or imposing the harsh, case-dispositive sanctions of

2 dismissal or judgment.” Surowiec, 790 F. Supp. 2d at 1008 (citation omitted).

3

While Defendants’ willful conduct merits a terminating sanction and would best

4 deter Defendants from further spoliation, see Leon, 464 F.3d at 958, Plaintiffs submit that

5 the following sanctions would adequately—though not completely—restore Plaintiffs to

6 their status quo ante:

7

x An inference, applicable to all motions and at trial, that the videotapes

would have demonstrated all facts described in Plaintiffs’ declarations

8

continue through the present.

9

x Immediate production of a copy of the oldest retained video-recording for

each detainee holding area.

10

11 IV. CONCLUSION

12

Based on the foregoing, Defendants respectfully request that the Court (1) issue

13 adverse inference findings that the videotapes would have demonstrated all observable

14 facts described in Plaintiffs’ declarations continuing through the present; and (2) order

15 Defendants to immediately produce a copy of the oldest retained video-recording for each

16 detainee holding area.

17 18 Dated: August 28, 2015

By: /s/ Harold J. McElhinny

19

Harold J. McElhinny*

Kevin M. Coles*

20

Elizabeth Balassone*

21

MORRISON & FOERSTER LLP

425 Market Street

22

San Francisco, CA 94105-2482

23

Telephone: (415) 268-7000

Facsimile: (415) 268-7522

24

Email: HMcElhinny@mofo.com

Email: KColes@mofo.com 25

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PLAINTIFFS’ MOTION FOR SANCTIONS

CASE NO. 4:15-CV-00250-DCB

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFFS’ MOTION FOR SANCTIONS CASE NO. 4:15-CV-00250-DCB
tk-582883

Colette Reiner Mayer* MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304-1018 Telephone: (650) 813-5600 Facsimile: (650) 494-0792 Email: CRMayer@mofo.com
Louise C. Stoupe* Pieter S. de Ganon* MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522 Facsimile: +81-3-3214-6512 Email: LStoupe@mofo.com Email: PdeGanon@mofo.com
Linton Joaquin* Karen C. Tumlin* Nora A. Preciado* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, CA 90010 Telephone: (213) 639-3900 Facsimile: (213) 639-3911 Email: joaquin@nilc.org Email: tumlin@nilc.org Email: preciado@nilc.org
Mary Kenney* Emily Creighton* Melissa Crow* AMERICAN IMMIGRATION COUNCIL 1331 G Street NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7512 Facsimile: (202) 742-5619 Email: mkenney@immcouncil.org Email: ecreighton@immcouncil.org Email: mcrow@immcouncil.org
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Case 4:15-cv-00250-DCB Document 56 Filed 08/28/15 Page 17 of 19

1

Victoria Lopez (Bar No. 330042)**

2

Daniel J. Pochoda (Bar No. 021979) James Duff Lyall (Bar No. 330045)**

3

ACLU FOUNDATION OF ARIZONA

3707 North 7th Street, Suite 235

4

Phoenix, AZ 85014

5

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

6

Email: vlopez@acluaz.org

7

Email: dpochoda@acluaz.org Email: jlyall@acluaz.org

8

Travis Silva*

9

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

10

OF THE SAN FRANCISCO BAY AREA

131 Steuart Street, Suite 400

11

San Francisco, CA 94105

12

Telephone: (415) 543-9444 Facsimile: (415) 543-0296

13

Email: tsilva@lccr.com

14 Attorneys for Plaintiffs
15

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* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

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PLAINTIFFS’ MOTION FOR SANCTIONS

CASE NO. 4:15-CV-00250-DCB

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Case 4:15-cv-00250-DCB Document 56 Filed 08/28/15 Page 19 of 19

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 28th day of August, 2015, I caused a PDF version of

3 the documents listed below to be electronically transmitted to the Clerk of the Court, using the CM/ECF System for filing and for transmittal of a Notice of Electronic Filing to

4 all CM/ECF registrants and non-registered parties.

5

6

7

8

9

Harold J. McElhinny

10

(typed)

/s/ Harold J. McElhinny (signature)

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CERTIFICATE OF SERVICE

CASE NO. 4:15-CV-00250-DCB

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Case 4:15-cv-00250-DCB Document 56-1 Filed 08/28/15 Page 1 of 2

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6 Jane Doe #1; Jane Doe #2; Norlan Flores,
7 on behalf of themselves and all others similarly situated,
8 Plaintiffs,
9 v.
10

Case No. 4:15-cv-00250-TUC-DCB
[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR SANCTIONS

11 Jeh Johnson, Secretary, United States Department of Homeland Security, in his
12 official capacity; R. Gil Kerlikowske, Commissioner, United States Customs &
13 Border Protection, in his official capacity; Michael J. Fisher, Chief of the United States
14 Border Patrol, in his official capacity; Jeffrey Self, Commander, Arizona Joint
15 Field Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent-
16 Tucson Sector, in his official capacity,

17

Defendants.

18

19

The Court, having considered Plaintiffs’ Motion for Sanctions pursuant to Federal

20 Rules of Civil Procedure 37(b) and the Court’s inherent discretionary power to make

21 appropriate evidentiary rulings regarding destruction or spoliation of evidence and to

22 manage its own affairs, and finding that good cause appears, orders as follows:

23

Plaintiffs’ Motion for Sanctions is hereby GRANTED.

24

IT IS ORDERED THAT an inference is established, applicable to all motions and

25 at trial, that the videotapes would have demonstrated all facts described in Plaintiffs’

26 declarations continue through the present.

27

28

[PROPOSED] ORDER

1

CASE NO. 4:15-CV-00250-TUC-DCB

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1

IT IS FURTHER ORDERED THAT Defendants shall immediately produce a copy

2 of the oldest retained video-recording for each detainee holding area at each of the eight

3 Tucson Sector Border Patrol stations.

4

IT IS SO ORDERED.

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[PROPOSED] ORDER CASE NO. 4:15-CV-00250-TUC-DCB sf-3571199

 
 Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 1 of 13

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8 Jane Doe # 1and Jane Doe # 2; Norlan Flores, on)

behalf of themselves and all others similarly)

CV 15-250 TUC DCB

9 situated,

)

)

10

Plaintiffs,

)

v.

)

ORDER

11

)

Jeh Johnson, Secretary, United States)

12 Department of Homeland Security, in his official)

capacity; R. Gil Kerlikowske, Commissioner,)

13 United States Customs & Border Protection, in)

his official capacity; Michael J. Fisher, Chief of)

14 the United States Border Patrol, in his official)

capacity; Jeffrey Self, Commander, Arizona)

15 Joint Field Command, in his official capacity;)

Manuel Padilla, Jr., Chief Patrol Agent-Tucson)

16 Sector, in his official capacity,

)

)

17

Defendants.

)

______________________________________ )

18

On June 8, 2015, Plaintiffs, civil immigration detainees, filed a class action

19

Complaint challenging the conditions of their confinement. They allege extreme and

20

inhumane conditions exist in the Tucson Sector-Border Patrol short-term detention facilities,

21

such as insufficient food and water, sleeping accommodations, and necessary health and

22

sanitary conditions.

23

On June 23, 2015, Plaintiffs sought a Court order to allow them to conduct expedited

24

discovery to enable them to better prepare a motion for preliminary relief. The Court held

25

a hearing and entered an Order on August 14, 2015, which granted the request for expedited

26

discovery and directed Defendants to not destroy and to preserve video surveillance tapes of

27

detainee holding areas. (Order (Doc. 51) at 3.) On August 28, 2015, Plaintiffs filed a Motion

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 2 of 13

1 for Sanctions because Defendants failed to secure and preserve this evidence and recorded

2 over video surveillance tapes even after the Court’s August 14-Order. The Plaintiffs ask the

3 Court to issue an Order that an adverse inference will exist for the trier of fact. (Motion

4 (Doc. 56) at 1.)

5

The Court grants the Plaintiffs’ request in part that Defendant produce all the

6 existing and currently retained video-recordings for the detainee holding areas at the Border

7 Patrol facilities that are the subject of this action.

8

Findings of Fact

9 1. On June 8, 2015, Plaintiffs filed this class action law suit.

10 2.

On June 10, 2015, Plaintiffs sent General Counsel for the Department of Homeland

11 Security a Preservation letter, which included a demand for preservation of a list of items

12 including “video recordings, digital recordings, pictures, photographs, films, computer

13 records, data compilations,” and “evidence regardless of the form of storage (including, but

14 not limited to, paper, microfiche, magnetic tape, magnetic disk (hard disk or floppy disk),

15 CD-ROM, DVD, optical disk, or electronic storage device),” and “documents generated by

16 or maintained in the E3 Tracking System, official DHS, CBP and Border Patrol papers, and

17 any other networks, databases, or other electronic stored information (“ESI”)” and Plaintiffs

18 requested General Counsel “ensure that DHS, CBP and Border Patrol immediately halt all

19 routine business practices that destroy potential evidence, including but not limited to

20 document destruction, email deletion, server back-up tape rotation, electronic data shredding,

21 scheduled destruction of back-up media, re-imaging of drives, drive hardware exchanges, and

22 sale, disposal, or destruction of computer hardware or systems,” and asked General Counsel

23 to “confirm [] that these practices have been halted.” (Sanction Motion, Mayer Decl. (Doc.

24 57) ¶2, Ex. A.) Plaintiffs asked General Counsel to promptly communicate the preservation

25 obligation to all DHS, CBP, and Border Patrol employees and contractors, and periodically

26 repeat the communication until the litigation concludes to ensure compliance. Importantly,

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 3 of 13

1 Plaintiffs offered to reassess and narrow the Defendants’ preservation obligations once they

2 obtained a better understanding of the agencies’ information management systems. Id.

3 3. On June 12 through June 16, 2015, Plaintiffs served the Complaint.

4 4. On July 8, 2015, a litigation hold was distributed and Assistant Chief George Allen

5

for Border Patrol, Tucson Sector admits receiving it. (Sanction Response (Doc. 60),

6

Allen Decl. ¶ 2.)

7 5. On June 23, 2015, Plaintiffs filed the Motion for Expedited Discovery, which

8 expressly sought permission to “[r]eview and reproduce all . . . surveillance video footage.”

9 (Discovery Motion (Doc.25) at 7.) Defendants opposed expediting discovery based on their

10 assertion that the evidence sought by Plaintiffs would be available in the normal course of

11 discovery and “there was no basis to believe . . . that Defendants will intentionally destroy

12 or transfer evidence in this case.” (Response to Disc. Motion (Doc. 39) at 7-8.)

13 6.

On July 15, 2015, in response to an email from Plaintiffs, Defendants’ counsel

14 assured Plaintiffs’ counsel that Defendants had “taken all required preservation steps” and

15 would “continue to comply with the relevant rules and laws.” (Sanction Motion, Mayer

16 Decl. (Doc. 57) ¶ 4, Ex. C.)

17 7.

At the August 13, 2015, hearing on the expedited discovery motion, counsel for

18 Defendants asserted she did not know the relevant procedures for making or maintaining

19 video recordings at the Border Patrol stations, but would inquire into what video recordings

20 Defendants actually had and how it could be produced to Plaintiffs. (Sanction Motion,

21 Mayer Decl. (Doc. 57), Ex. D: Transcript of Record (TR) at 40-41.

22 8.

On August 14, 2015, following the hearing, the Court issued its Order granting

23 expedited discovery and ordered Defendants to produce, for each facility, “a list of video

24 surveillance being conducted and maintained in holding cells and all fixtures contained

25 therein, . . .,” [and] “that Defendants shall not destroy or record over any video surveillance

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 4 of 13

1 tapes of any and all detainee holding areas . . . and shall preserve such surveillance tapes

2 currently in their possession.” (Order (Doc. 51) at 3.)

3 9. Between July 8 and August 14, 2015, Defendants destroyed or failed to preserve

4 video footage depicting the conditions of confinement in Tucson-sector stations.

5 10. On August 19, 2015, Defendants filed a Notice Regarding Compliance, reporting

6 that on August 13, 2015, Border Patrol undertook emergency measures to add temporary

7 electronic storage to store the video footage for approximately 15-day storage cycles, which

8 had cost approximately $10,000 and would require the additional expense of $5,000 every

9 90 to 120 days continuing until the video footage requirement is lifted. Defendants reported

10 that recordings maintained prior to August 13, 2015, were necessarily limited by existing

11 capacity limitations, which differed at the different facilities, but generally Border Patrol uses

12 digital storage devices (DVR) and computer hard drives with the capacity to maintain video

13 for between 15 and 30 days. Some cameras, however, run continuously, retaining video for

14 only approximately 48 hours before they are taped over. Specifically, Ajo Station does not

15 record video, and the Willcox and Brian A. Terry stations have inoperable storage devices.

16 (Notice (Doc. 53), Ex. Allen Decl.)

17 11. On August 27, 2015, Defendants filed a Second Notice, informing the Court that:

18 “While working to fully implement the emergency upgrade, the stations have made the

19 operational decision to continue where possible, recording current video footage for [safety

20 and security reasons] . . . and “unless and until the scope of ongoing video storage is

21 modified in light of the needs of this case. Border Patrol continues to maintain the maximum

22 amount of video possible based on current capacity, and is doing everything in its power to

23 work quickly to bring online the additional capacity to store video in full compliance with

24 the Court’s order.” (Notice (Doc. 55) at 2.)

25 12. More specifically, the Second Notice asserted that the emergency upgrades for a 15-

26 day video storage cycle have proved difficult to implement due to system failures due to the

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1 old-age of the various recording systems being used at the Border Patrol facilities. As of

2 August 27, 2015, the status of the video backup improvements at the eight Tucson-sector

3 facilities was as follows: 1) Tucson Station- two of four DVRs have backups because two

4 DVRs are failing and constantly rebooting causing the backup to fail; 2) Ajo Station-the

5 DVR system is not operational; 3) Casa Grande- the DVR system was powered down to

6 ensure existing video was preserved but it was powered back up the next day; 4) Sonoita–

7 the DVR was not configured to record, but was reconfigured with a 30 day retention

8 capacity; 5) Nogales– the DVR has approximately 5.5 months of video recorded on it, with

9 additional hard drives added to extend storage capacity another 2.5 months; 6) Brian A.

10 Terry– DVR has retained video back to June 11, 2015, with enough storage capacity to last

11 to approximately September 11, 2015; 7) Douglas– there are three DVRs, set to back up

12 weekly, with the oldest retained video back to July 6, 2015, and with the addition of hard

13 drives storage capacity exists for approximately another two months, 8) Willcox– the security

14 system is not compatible with the emergency backup system being implemented by

15 Defendants. (Second Notice (Doc. 55), Shrivers Decl.)

16 13. Defendants have a logging system, e3DM which tracks the total time in custody, the

17 total time at that particular station, the arrest date and time, the book-in and book-out date

18 and time, the name, the age and gender of the alien, the country of citizenship, the alien

19 registration number, whether the alien has indicated credible fear, and other comments. The

20 agent “can also log” whether medical treatment was provided, when it was provided, and

21 whether it was provided by a Border Patrol agent or someone outside of Border Patrol. The

22 agent can log if the alien was served a meal, what time it was served, and if the alien

23 accepted or refused service of the meal. The agent can log when a shower was provided to

24 the alien or if the alien was provided access to a telephone and how often an agent conducted

25 a welfare chick on the alien. (Sanction Response (Doc. 60) at 8 n.4; Allen Decl. ¶ 10.) The

26

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 6 of 13

1 Court cannot discern whether the term “can” is used unskillfully or if the agent has discretion

2 to log certain information and must log other information into the e3DM tracking system.

3 14. Defendants did not seek a protective order or move to modify the Court’s Order to

4 accommodate its alleged inabilities to comply with the Court’s Order.

5 16. On August 28, 2015, Plaintiffs filed the Motion for Sanctions: for an adverse

6 inference, applicable to all motions and at trial, that the videotapes would have demonstrated

7 all facts described in Plaintiffs’ declarations existed and continue through the present.

8 (Sanction Motion (Doc. 56) at 11)

9

Conclusions of Law

10 1.

As soon as a potential claim is identified, a litigant in federal court is under a duty

11 to preserve evidence it knows or reasonably should know is relevant to the action. In re

12 Napster, Inc. Copyright Litigation, 462 F. Supp.2d 1060, 1067 (Calif. 2006). Once the duty

13 attaches, a party must “suspend any existing policies related to deleting or destroying files

14 and preserve all relevant documents related to the litigation.” Id. at 1070.

15 2.

As part of their inherent power to manage their affairs so as to achieve the orderly

16 and expeditious disposition of cases, the District courts may impose sanctions for spoliation

17 of evidence. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991); see also Unigard Sec. Ins.

18 Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir.1992) (excluding evidence

19 as a sanction for spoliation).

20 3.

Pursuant to its inherent authority, sanctions are appropriate upon a finding of

21 recklessness if combined with an additional factor such as frivolousness, harassment, or an

22 improper purpose. Fink v. Gomez, 239 F.3d 989, 994 (9th Cir.2001). Dismissal sanctions

23 may be imposed upon a finding of willfulness, fault or bad faith. Leon v. IDX Systems Corp.,

24 464 F.3d 951, 958 (9th Cir.2006). In deciding whether to impose a dismissal sanction, the

25 Court must determine (1) the existence of certain extraordinary circumstances, (2) the

26 presence of willfulness, bad faith, or fault by the offending party, (3) the efficacy of lesser

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 7 of 13

1 sanctions, (4) the relationship or nexus between the misconduct drawing the dismissal

2 sanction and the matters in controversy in the case, and finally, as optional considerations

3 where appropriate, (5) the prejudice to the party victim of the misconduct, and (6) the

4 government interests at stake. Halaco Eng'g Co. v. Costle, 843 F.2d 376, 380 (9th Cir.1988).

5 4. The most extreme sanction, dismissal, generally requires a finding that the conduct

6 was “due to willfulness, bad faith or fault of the party.” In re Phenylpropanolamine (PPA)

7 Products Liability Litig., 460 F.3d 1217, 1233 (9th Cir.2006). To meet this standard, there

8 must be disobedient conduct outside the litigant's control.” Fair Housing of Marin v. Combs,

9 285 F.3d 899, 905 (9th Cir.2002); Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir.2003). A

10 party's destruction of evidence qualifies as willful spoliation if the party has “‘some notice

11 that the documents were potentially relevant to the litigation before they were destroyed.’”

12 Leon, 464 F.3d at 959 (quoting United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001

13 (9th Cir.2002)) (other citations omitted.) “Belated compliance with discovery orders does not

14 preclude the imposition of sanctions.” Id. (quoting North American Watch Corp. v. Princess

15 Ermine Jewels, 786 F.2d 1447,1451 (9th Cir.1986)).

16 5.

Lack of bad faith does not immunize a party or its attorney from sanctions, but good

17 or bad faith may be a consideration in determining whether imposition of sanctions would 18 be unjust and the severity of the sanctions. Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th

19 Cir. 1994).

20 6.

Under Rule 37 of the Federal Rules of Civil Procedure, the Court may impose

21 sanctions in response to litigation misconduct against a party “who fails to obey an order to

22 provide or permit discovery.” Sanctions under Rule 37 may be imposed for negligent

23 conduct. Fed. R. Civ. P. 37(b); Hyde & Drath, 24 F.3d at 1171.

24 7.

Under Rule 37, the Ninth Circuit applies a five part test to determine whether to

25 impose the most extreme sanction or not, as follows: (1) the public's interest in expeditious

26 resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice

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1 to the party seeking sanctions; (4) the public policy favoring disposition of cases on their

2 merits; and (5) the availability of less drastic sanctions. Valley Engineers, Inc. v. Electric

3 Engineering Co., 158 F.3d 1051, 1057 (9th Cir.1998). The third and fifth factors, prejudice

4 and availability of less drastic sanctions, are the decisive factors because factors one and two

5 favor dismissal and factor four cuts against it. Id.

6 8. Under either Rule 37 or pursuant to its inherent authority, courts may only impose

7 terminating sanctions when no lesser sanction is adequate to cure the prejudice from the

8 offending conduct. In re Napster, Inc. Copyright Litigation, 462 F.Supp.2d 1060, 1072

9 (N.D.Cal.2006).

10 9.

In assessing prejudice, the Court considers whether the spoliating party's actions

11 impaired the non-spoliating party's ability to go to trial or threatened to interfere with the

12 rightful decision of the case. Leon, 464 F.3d at 959. A party may be prejudiced when, as a

13 result of spoliation, the party's ability to litigate a claim is “severely impaired” and the party

14 is forced to rely on “incomplete and spotty evidence.” Anheuser–Busch Inc., v. Natural 15 Beverage Distributors, 69 F.3d 337, 354 (9th Cir. 2001). When a party is not irreparably

16 prejudiced from the loss of evidence that was destroyed, it is appropriate to permit the fact

17 finder to presume that the destroyed evidence was prejudicial. Surowiec v. Capital Title

18 Agency, 790 F.Supp.2d 997, 1009 (Ariz. 2011) (citing Rimkus Consulting Group, Inc. v.

19 Cammarata, 688 F.Supp.2d 598, 618 (S.D.Tex.2010)).

20 10. Lesser sanctions include: excluding evidence, including spoliated evidence;

21 admitting evidence of the circumstances of the destruction or spoliation; instructing the jury

22 that it may infer that the spoiled or destroyed evidence would have been unfavorable to the 23 responsible party, Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993), and may designate

24 facts to be taken as established for purposes of the action, Fed. R. Civ. P. 37(b)(2)(A)(i).

25 /////

26 /////

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1

Decision: Lesser Sanction and Prejudice

2

Plaintiffs do not seek an extreme sanction of dismissal. Plaintiffs seek an adverse

3 inference, which is one of the lesser sanctions available for spoliation. The Court concludes

4 the destruction of the video-tape recordings made prior to this Court’s August 14, 2015,

5 Order was, at best, negligent and was certainly willful. Defendants provide no explanation

6 why, in response to Plaintiffs’ notifications regarding litigation, the Defendants did not

7 undertake the efforts initiated in response to the Court’s August 14 Order. There is no

8 explanation as to why the Defendants asserted to the Plaintiffs that “all was well” in respect

9 to Defendants having “taken all required preservation steps” as required by relevant rules and

10 laws, which included preservation and retention of the video recordings. Defendants

11 similarly misled the Court when counsel for Defendant appeared before it, without knowing

12 Defendants’ data recording and retention systems and failed after the Court’s August 14

13 Order to seek modification of the August 14 Order’s video retention directives. Instead,

14 Defendants acted unilaterally to modify their responsibilities to preserve evidence required

15 by law, rule and direct Order of this Court.

16

Even now, the Court cannot discern the extent of the destruction because it is certain

17 that video recordings are not continuing to be destroyed. Defendants assert they will have

18 the ability to retain videos for approximately 15-day cycles. The plan is to have further back-

19 up storage in place by then, but Defendants have not noticed the Court that in fact the storage

20 retention problem has been solved and no further destruction will occur. Defendants have

21 not hesitated since the inception of this case to allow destruction of the video tapes and

22 inform the Court after the fact, that it was unable to prevent it. Defendants have unilaterally

23 changed plans and not told the Plaintiffs and have not sought leave of the Court for changes.

24 As of the Defendants filing its response to the Motion for Sanctions, it was clear that

25 Defendants primarily have current recordings. Because of a storage problem, Defendants are

26 periodically and routinely destroying past video recordings. Specifically, the Tucson Station

27

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 10 of 13

1 has no past video recordings for two of its four recorders and of the remaining seven other

2 stations only four had some past recordings, which approximately ranged back to April for

3 the Nogales Station, June for the Brian A. Terry Station, and July for the Douglas Station.

4 Defendants reported different storage capabilities at different stations so unless the storage

5 problems have been resolved, the Court must assume further destruction will occur.

6

In spite of Plaintiff’s offer to reassess its retention requests upon being better

7 informed regarding Defendants’ data recording and retention systems, the Defendants have

8 made no effort to work with Plaintiffs to address the Defendants’ technical limitations and

9 difficulties. The Court refers here to the lack of working recording machines, lack of data

10 storage necessary to maintain and preserve evidence, and lack of money to upgrade the

11 systems to enable the agency to comply with the directives of the Court. It appears that some

12 limitations have been addressed, but others remain or may remain, see Findings of Fact ¶ 12,

13 and the Defendants have chosen to not take the appropriate measures to modify their

14 responsibilities, accordingly.

15

There is prejudice to the Plaintiffs. The video recordings are the only visual

16 evidence of past and current conditions of confinement in the various Border Patrol facilities

17 in the Tucson sector. Specifically, the only visual evidence has been destroyed of the

18 conditions of confinement for the two Jane Doe Plaintiffs named in the action, who were

19 detained at the Tucson and Casa Grande stations. This case is filed as a class action. Until

20 the Court does or does not certify Plaintiffs’ class, evidence reflecting the conditions of

21 confinement for anyone detained on or after June 8 is relevant. Plaintiffs cannot destroy

22 documents based on their belief regarding the proper scope of the complaint. (Reply (Doc.

23 61) at 6 (citing Diersen v. Walker, 2003 WL 21317276 * 5 (N.D. Ill. June 6, 2003)).

24

Defendants’ proposal that Plaintiffs have an alternative source of evidence in the

25 e3DM records rings hallow. Defendants use the e3DM records to track time of custody, age,

26 and gender, and the remainder of the information “can be” recorded. Until and unless all

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 11 of 13

1 agents do in fact record this other information, the e3DM records are not a substitute for the

2 video recordings. Even then, the e3DM records cannot reflect conditions in the holding cells

3 such as cleanliness or overcrowding. Without knowing exactly what is actually recorded on

4 the e3DM records it is impossible to determine whether or not it is an adequate alternative

5 to video recordings, but it seems an unlikely equivalent to visual evidence.

6

The Court will not allow the Defendants to take advantage of the missing evidence,

7 but is not prepared to impose the broad sweeping adverse inference requested by the

8 Plaintiffs: “that the videotapes would have demonstrated all facts described in Plaintiffs’

9 declarations continue through the present.” (Motion (Doc. 56) at 11.). In fairness to

10 Defendants, missing videos should not be presumed to provide evidence regarding conditions

11 reflected on existing videos; some facts like temperature would not have been reflected in

12 any video. (Response (Doc. 60) at 16.) Likewise, missing video footage should not be

13 presumed to provide evidence of conditions that can be proven or disproved by other means.

14 But in fairness to the Plaintiffs, Defendants must not be allowed to prove or disprove facts

15 because of a lack of evidence that would have been available in the video recordings they

16 failed to preserve. Anheuser-Busch, 69 F.3d at 354. Plaintiffs would be severely impaired

17 if forced to rely on incomplete and spotty evidence, and clearly an adverse presumption

18 would then be appropriate. If at any point in time, Defendants seek to obtain such an

19 advantage from the lack of video tape evidence, the Court will entertain applying an adverse

20 inference and will allow Plaintiffs to reurge this sanction.

21

Defendants agree to limited production of available videos, and the Court so orders

22 the Defendants to immediately produce to the Plaintiffs all existing video recordings, dating

23 from June 10, 2015 through current, for each Border Patrol station in the Tucson sector.

24 Likewise, Defendants should produce the e3DM records for each facility for these same

25 dates. Thereafter, the parties shall meet and confer regarding the Plaintiffs’ discovery needs

26 and the capabilities at each facility for meeting those needs. The parties shall attempt to

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 12 of 13

1 agree on recovery, maintenance and preservation, and production procedures for video

2 recordings to meet the needs of the Plaintiffs, with Plaintiffs acting in good faith minimize

3 the burdens on the Defendants and Defendants acting in good faith to fully apprise the

4 Plaintiffs regarding its video capabilities, including storage, and develop procedures that

5 ensure production of video recordings to Defendants on an ongoing basis. Defendants shall

6 act in good faith to keep Plaintiffs apprised on an ongoing basis of the status of the

7 production procedures for recovery, maintenance and preservation of video recordings. In

8 the event the parties cannot forthwith reach an agreement, they shall simultaneously file

9 briefs setting out their respective proposals for video recording recovery, maintenance and

10 preservation, and production, including time lines.

11

Accordingly,

12

IT IS ORDERED that the Plaintiffs’ Motion for Sanctions (Doc. 56) is GRANTED

13 IN PART AND DENIED IN PART.

14

IT IS FURTHER ORDERED that within 15 days of the filing date of this Order,

15 Defendants shall produce to the Plaintiffs all existing video recordings, dating from June 10,

16 2015 through current, for each Border Patrol station in the Tucson sector.

17

IT IS FURTHER ORDERED that within 14 days of the filing date of this Order,

18 Defendants should produce the e3DM records for each facility for these same dates.

19

IT IS FURTHER ORDERED that within 14 days of these disclosures, the parties

20 shall meet and confer regarding the Plaintiffs’ discovery needs and the capabilities at each

21 facility for meeting those needs. The parties shall attempt to agree on recovery, maintenance

22 and preservation, and production procedures for video recordings to meet the needs of the

23 Plaintiffs, with both parties acting in good faith as directed herein.

24

IT IS FURTHER ORDERED that in the event the parties reach a stipulation, the

25 Defendants shall act in good faith to keep Plaintiffs apprised on an ongoing basis of the status

26 of recovery, maintenance, preservation and production of video recordings.

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Case 4:15-cv-00250-DCB Document 64 Filed 09/28/15 Page 13 of 13

1

IT IS FURTHER ORDERED that in the event the parties cannot reach an

2 agreement, they shall simultaneously file briefs setting out their respective video recording

3 proposals for recovery, maintenance and preservation, and production, including time lines.

4

IT IS FURTHER ORDERED that within 5 days of the meet and confer, the

5 Plaintiffs shall file a notice of stipulation or the parties shall file their simultaneous briefs.

6

DATED this 25th day of September, 2015.

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 Case 4:15-cv-00250-DCB Document 68 Filed 10/08/15 Page 1 of 2

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

9 10 Jane Doe #1, et al.,

Case No. 4:15-cv-00250-DCB

11 Plaintiffs,

ORDER APPROVING STIPULATION AND

12

PROTECTIVE ORDER

13

v.

14 Jeh Johnson, Secretary of Homeland Hon. David C. Bury Security,
15 et al.,
16 Defendants.
17

18 For good cause shown, pursuant to Rule 26(c) of the Federal Rules of Civil
19 Procedure, all discovery and other materials exchanged by the Parties or Third Parties, or
20 filed with the Court, in Jane Doe #1, et al. v. Johnson, et al., Case No. 4:15-cv-00250-
21 DCB shall be provided subject to the conditions set forth in the Stipulated Protective
22 /////
23 /////
24 /////
25 /////
26 /////
27 /////
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Case 4:15-cv-00250-DCB Document 68 Filed 10/08/15 Page 2 of 2

1 Order (Doc. 59), which shall be construed as a lawful order pursuant to the Privacy Act

2 permitting release consistent with the terms of this Order.

3

Accordingly,

4

IT IS SO ORDERED that APPROVING AND ADOPTING the Stipulation and

5 Protective Order (DOC. 59) as the Order of the Court.

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Dated this 1st day of October, 2015.

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-2-

 
 Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 1 of 23

1

SKC

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV 15-00250-TUC-DCB

10

Plaintiffs,

11 v.

ORDER

12 Jeh Johnson, et al.,

13

Defendants.

14

15

Plaintiffs are three civil immigration detainees who are or were confined in a U.S.

16 Customs and Border Protection (CBP) detention facility within the Tucson Sector of the

17 U.S. Border Patrol. Defendants are Jeh Johnson, Secretary of the U.S. Department of

18 Homeland Security (DHS); R. Gill Kerlikowske, CBP Commissioner; Michael J. Fisher,

19 CBP Chief; Jeffrey Self, Commander of the Arizona Joint Field Command of CBP; and

20 Manuel Padilla, Jr., Chief Patrol Agent for the U.S. Border Patrol’s Tucson Sector. All

21 Defendants are named in their official capacities. Pending before the Court is Plaintiffs’ 22 Motion for Class Certification (Doc. 4).1 The Motion is fully briefed. (Docs. 41, 42.)

23 For the reasons stated below, the Court will grant the Motion and will certify the

24 proposed class.

25 . . . .

26 . . . .

27

28

1 Plaintiffs have requested oral argument. Because the Court will grant Plaintiffs’ Motion and will require supplemental briefing as set forth in this Order, the Court does

not find oral argument called for at this time.

Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 2 of 23

1 I. Background

2

CBP has eight border patrol stations located in its Tucson Sector, which includes

3 Cochise, Pima, Pinal, and Santa Cruz Counties in Arizona. These eight stations are

4 located in Why, Casa Grande, Tucson, Nogales, Wilcox, Sonoita, Bisbee, and Douglas, 5 Arizona.2 In 2013 and 2014, CBP’s Tucson Sector apprehended more than 200,000

6 individuals. (Doc. 4 at 7, citing U.S. Border Patrol’s 2013 and 2014 annual reports.)

7 According to Plaintiffs, tens of thousands of individuals apprehended annually are

8 detained in holding cells in multiple Tucson Sector detention facilities. (Id.)

9

Plaintiffs filed this action in June 2015, raising six claims for relief related to the

10 treatment of Tucson Sector civil immigration detainees. (Doc. 1.) Plaintiffs’ first five

11 claims stem from Defendants’ alleged violation of the Due Process Clause of the Fifth

12 Amendment based on their subjection of detainees to deprivation of sleep, deprivation of

13 hygienic and sanitary conditions, deprivation of adequate medical screening and care,

14 deprivation of adequate food and water, and deprivation of warmth. (Doc. 1 ¶¶ 184-218.)

15 Plaintiffs’ sixth claim stems from Defendants’ alleged violation of the Administrative

16 Procedures Act (APA) based on their failure to enforce their own procedures related to

17 the operation of holding cells in Tucson Sector facilities. (Id. ¶¶ 219-24.)

18

Plaintiffs seek declaratory and injunctive relief, including an Order compelling

19 Defendants to provide Plaintiffs and the proposed class with beds and bedding; access to

20 soap, toothbrushes, toothpaste, and other sanitary supplies; clean drinking water and

21 nutritious meals; constitutionally adequate cell occupancy rates, temperature control, and

22 fire, health, and safety standards; medical, dental, and mental health screening; and

23 emergency medical care. (Id. ¶¶ 230-35.) Plaintiffs also request Court-ordered

24 monitoring as appropriate. (Id. ¶ 236.) The proposed Class definition is “all individuals

25 who are now or in the future will be detained for one or more nights at a CBP facility,

26 including Border Patrol facilities, within the Border Patrol’s Tucson Sector.” (Doc. 4

27

28

2 See http://www.cbp.gov/border-security/along-us-borders/border-patrol-sectors/

tucson-sector-arizona (last visited October 30, 2015).

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 3 of 23

1 at 6). The proposed Class representatives are Plaintiffs Jane Doe #1 and Jane Doe #2,

2 who are currently confined in the Tucson Border Patrol Station in Tucson, Arizona

3 (Doc. 1 ¶¶ 15, 35), and Norlan Flores, a 34-year-old Nicaraguan native residing in

4 Tucson, who has twice been detained in a holding cell in the Tucson Border Patrol

5 Station. (Id. ¶ 52.)

6 II. Governing Standard

7

The Court’s authority to certify a class action is found in Federal Rule of Civil

8 Procedure 23. Plaintiffs first bear the burden of establishing the four requirements

9 articulated in Rule 23(a): (1) the class is so numerous that joinder of all members is

10 impracticable; (2) there are questions of law or fact common to the class; (3) the claims

11 or defenses of the representative parties are typical of the claims or defenses of the class;

12 and (4) the representative parties will fairly and adequately protect the interests of the

13 class. Additionally, Plaintiffs must establish one of the requirements found in Rule 23(b).

14 In this case, Plaintiffs allege that class certification is appropriate pursuant to Rule

15 23(b)(2), which requires a demonstration that “the party opposing the class has acted or

16 refused to act on grounds that apply generally to the class, so that final injunctive relief or

17 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

18 Civ. P. 23(b)(2).

19

When analyzing whether class certification is appropriate, the Court must conduct

20 “a rigorous analysis” to ensure that “the prerequisites of Rule 23(a) have been satisfied.”

21 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011) (citing Gen. Tel. Co. of

22 the Sw. v. Falcon, 457 U.S. 147, 161 (1982)). As discussed below, the Court finds that

23 certification of the Class is appropriate.

24 III. Rule 23(a) Analysis

25

A. Numerosity

26

Plaintiffs assert that the Border Patrol apprehends and detains tens of thousands of

27 individuals in its Tucson Sector facilities annually. (Doc. 4 at 12.) They point to

28 evidence that in the six-month period from January 1, 2013 to June 1, 2013, more than

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 4 of 23

1 70,000 individuals were detained in Tucson Sector facilities, with close to 60,000—or

2 more than 80 percent—being held in detention for 24 hours or more. (Id.; Cantor Decl.,

3 Doc. 1-6 at 4-5, ¶¶ 6, 10.) Given these volumes, Plaintiffs argue that the number of

4 individuals who meet the proposed class definition is in the many thousands. (Doc. 4

5 at 12.) Defendants do not dispute that the numerosity requirement is satisfied. Indeed,

6 there is no doubt that joinder of all members of the potential Class would be

7 impracticable, if not impossible. See Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D.

8 229, 242 (C.D. Cal. 2006) (acknowledging that joinder will be impracticable for very

9 large classes). The Court finds the numerosity requirement satisfied.

10

B. Commonality

11

1. Governing Standard

12

To establish commonality, Plaintiffs must demonstrate that there are “questions of

13 law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Plaintiffs need not

14 demonstrate that all questions are common to the class; rather, class claims must “depend

15 upon a common contention . . . [that is] capable of classwide resolution.” Dukes, 131 S.

16 Ct. at 2551. “Even a single [common] question” will suffice to satisfy Rule 23(a). Id. at

17 2556 (citation omitted). In the civil rights context, commonality is satisfied “where the

18 lawsuit challenges a system-wide practice or policy that affects all of the putative class

19 members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001).

20

In assessing commonality, “it may be necessary for the court to probe behind the

21 pleadings before coming to rest on the certification question.” Gen’l. Tel. Co. of Sw. v.

22 Falcon, 457 U.S. 147, 160 (1982) (“[T]he class determination generally involves

23 considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s

24 cause of action.”) (internal citations and quotation marks omitted). That said, although

25 the Court must consider the underlying merits of Plaintiffs’ claims to ascertain whether

26 commonality exists, it is not the Court’s function at this juncture to “go so far . . . as to

27 judge the validity of these claims.” USW v. ConocoPhillips Co., 593 F.3d 802, 808-09

28 (9th Cir. 2010) (quoting Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003)). Thus,

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 5 of 23

1 Plaintiffs’ motion for class certification is not an opportunity to hold “a dress rehearsal

2 for the trial on the merits.” Messner v. Northshore Univ. HealthSystem, 669 F.3d 802,

3 811 (7th Cir. 2012).

4

2. Analysis

5

Plaintiffs maintain that all members of the proposed class share a “common core

6 of salient facts” and challenge the same “policies and practices that exist in all Border

7 Patrol Stations” that detain individuals in the Tucson Sector. (Doc. 4 at 14.) As a result,

8 they claim, all putative class members also present common questions of law. (Id.)

9 These include whether Defendants’ alleged policies and practices result in the deprivation

10 of Plaintiffs’ and putative class members’ rights to humane treatment in violation of the

11 Fifth Amendment Due Process Clause and the APA, including (1) the right to sleep,

12 (2) the right to hygienic and sanitary conditions, (3) the right to adequate medical care,

13 (4) the right to adequate food and water, and (5) the right to warmth. (Id. at 14-15.)

14

Defendants argue that the Court should reject class certification due to lack of

15 commonality in this case. They first argue that Plaintiffs fail to show commonality as a

16 matter of law because the class certification cases upon which they rely—Hernandez v.

17 County. of Monterey, 305 F.R.D. 132 (N.D. Cal. 2015); Gray v. County. of Riverside, No.

18 EDCV 13-00444-VAP (OPx), 2014 WL 5304915 (C.D. Cal. Sept. 2, 2014); and Brown v.

19 Plata, 131 S. Ct. 1910 (2011)—do not apply in this context. (Doc. 41 at 10; see Doc. 4 at

20 15.) This is because, Defendants argue, these cases deal only with specific conditions of

21 confinement, not the variety of conditions presented by Plaintiffs, and they apply to the

22 treatment of criminal detainees under the Eighth Amendment cruel and unusual

23 punishment standard, not the treatment of civil immigration detainees under the Fifth

24 Amendment due process standard put forth in this action. (Doc. 41 at 9-12.)

25

This argument is misplaced. As relevant here, the above cases all involve alleged

26 system-wide conditions of confinement. The Complaint in Hernandez, like the instant

27 Complaint, challenged a variety of allegedly unconstitutional conditions: in that case,

28 lack of safety, inadequate medical and mental health care, and improper accommodations

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 6 of 23

1 for disabled inmates. 305 F.R.D. at 141-43. In upholding commonality, the court in

2 Hernandez found that claims of “systemic deficiencies . . . have long been brought in the

3 form of class action lawsuits” and that apart from such litigation “it is unlikely that . . .

4 conditions that violate the Eighth Amendment could ever be corrected by legal action.”

5 Id. at 157-58. The court in Gray similarly certified a class based on alleged system-wide

6 deficiencies in inmate medical and mental health care in five county jails. 2014 WL

7 5304915, at *2, *33-34. Additionally, the Supreme Court in Plata affirmed classwide

8 relief, including phased-in population reductions, for inmates with serious mental or

9 medical conditions based on the California Prison System’s alleged system-wide failures

10 to deliver adequate care for those classes of inmates. 131 S. Ct. at 1926, 1939-47.

11

Defendants appear to claim that these cases are inapposite because they involve

12 fewer facilities and less varied issues and inmates than are presented here. (Doc. 41

13 at 10). They argue that “[i]n contrast” to these cases, “Plaintiffs here challenge a number

14 of different conditions they allege were experienced by a variety of individuals during

15 immigration processing over an unspecified period of time at eight different Border

16 Patrol stations throughout the Tucson Sector.” (Id.) It is not clear, however, how

17 Defendants believe such generalized factual differences make the above cases inapt.

18 Moreover, Defendants fail meaningfully to distinguish the nature of the issues related to

19 the various conditions of confinement in these cases from the inhumane conditions of

20 confinement Plaintiffs allege exist for those held overnight in all Tucson Sector Border

21 Patrol facilities.

22

Absent substantial differences between the factual and legal nature of these cases

23 and the factual and legal nature of Plaintiffs’ claims, Defendants argument that the Court

24 should find a lack of commonality appears to rest merely on their assertion that the body

25 of law upon which Plaintiffs rely pertains to criminal rather than civil detainees and arises

26 under an Eighth Amendment, not a Fifth Amendment, standard. (Id.) But such a finding

27 would lead to the absurd result that only criminal detainees, not civil detainees, could

28 ever litigate system-wide conditions of confinement as a class. For purposes of

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 7 of 23

1 commonality the operative question is not whether the same detention status and same

2 legal standard applies as applies in other analogous class action cases. Rather, the

3 question is whether the putative class members, themselves, present a common

4 contention that “is capable of classwide resolution,” meaning “determination of its truth

5 or falsity will resolve an issue that is central to the validity of each one of the claims in

6 one stroke.” Wal-Mart Stores, Inc. 131 S. Ct. at 2545.

7

Here, Plaintiffs contend that all putative class members are subject to the same

8 conditions in which they are denied basic necessities such as bedding, food, water, and

9 adequate health care in violation of the Due Process Clause and the APA. (Doc. 1 ¶¶ 89-

10 175, 184-224.) In support, they provide numerous declarations in which putative class

11 members attest to being subjected to frigid temperatures, overcrowding, lack of beds and

12 blankets, constant illumination, and lack of adequate food, water, health care, and

13 sanitary supplies. (Doc. 4 at 7-10; Doc. 2. Exs. 1-6.) Defendants fail to show why

14 Plaintiffs’ contentions, if proven, would be incapable of classwide resolution in the

15 immigration detention context. Indeed, to the extent that Defendants appear to argue that

16 commonality cannot be met simply because “no case clearly establishes a legal standard

17 for Fifth Amendment due process challenges in this context” (Doc. 11 at 20), this

18 argument is self-defeating. The question of what standard applies to the treatment of

19 civil immigration detainees is, itself, a question capable of—indeed, suited to—classwide

20 resolution.

21

Likewise, the question of whether Defendants have violated the applicable legal

22 standard with respect to the treatment of immigration detainees held overnight in Tucson

23 Sector Border Patrol facilities unquestionably lends itself to classwide resolution.

24 Classwide proceedings would determine, for instance, whether an injunction directing

25 Defendants to remedy any alleged unconstitutional conditions, such as the lack of beds

26 and blankets or the lack of health care screening, is an appropriate response. As the

27 Supreme Court has found, commonality is satisfied not merely where classwide

28 proceedings are capable of presenting common questions of fact and law, but where they

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 8 of 23

1 are capable of “generat[ing] common answers apt to drive the resolution of the

2 litigation.” Dukes, 131 S. Ct. at 2551(emphasis in original, internal citation and quotation

3 marks omitted). Based on Plaintiffs’ common set of allegations supported by the

4 numerous declarations discussed above, Plaintiffs have shown sufficient commonality of

5 claims to meet these purposes.

6

Defendants also argue that the Court should reject commonality because

7 “Plaintiffs have failed to identify any specific policy or practice to which all members of

8 the class were subjected.” (Doc. 41 at 13) (emphasis in original.) Defendants maintain

9 that although Plaintiffs use the term “policy and practice,” they fail to point to any

10 particular policies that form the basis of their claims, and their assertion of

11 unconstitutional practices “is based on the varying allegations of 53 individuals regarding

12 their different individual experiences . . . not on any uniformly applied policy.” (Id.)

13 This argument also fails for a number of reasons.

14

First, Plaintiffs need not demonstrate that all class members have been or will be

15 subjected to identical harms. Even if specific injuries among members of the proposed

16 class differ, “commonality is satisfied where the lawsuit challenges a system-wide

17 practice or policy that affects all of the putative class members.” Armstrong, 275 F.3d at

18 868 (internal citations omitted). Plaintiffs maintain that “all individuals detained for one

19 or more nights in Defendants’ custody are necessarily subjected to the same conditions

20 because of Defendants’ practice of placing detainees in overnight hold rooms that

21 Defendants admit are ‘not designed for long-term care and detention.’” (Doc 42 at 12,

22 quoting Padilla Decl. Doc. 39-1 at 4 ¶ 11.) Where system-wide conditions such as those

23 presented here underlie the various alleged harms, “individual factual differences among

24 the individual litigants or groups of litigants will not preclude a finding of commonality.”

25 Armstrong, 275 F.3d at 868.

26

Defendants nonetheless focus on just such individual factual differences. They

27 emphasize, for example, that individual immigration detainees are held for different

28 lengths of time, at different hours, and at different Border Patrol stations in the Tucson

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 9 of 23

1 Sector. (Doc. 41 at 14-15; id. n. 6.) In addition, they argue that putative class members

2 are likely to experience different conditions based on variables such as age, immigration

3 history, criminal history, location of apprehension and processing, and the availability of

4 beds at U.S. Immigration and Custom Enforcement (ICE) or Office of Refugee

5 Resettlement (ORR) facilities, where they may otherwise be sent. (Doc. 41 at 14.) Other

6 more generalized factors that Defendants argue can affect conditions include a surge of

7 apprehensions in a given day, the outbreak of a communicable disease, or the presence of

8 criminal aliens at a particular location. (Id.) For these reasons, Defendants argue,

9 whether putative class members’ due process rights have been or will be violated requires

10 individualized analyses and cannot be determined on a classwide basis. (Id. at 14-15.)

11 Defendants point to Padilla’s declaration which shows that the time individuals spend in

12 Tucson Border Patrol facilities varies based on available transportation to and available

13 bed space at ICE or other facilities. (Doc. 39-1 at 4 ¶ 11.) The same declaration also

14 shows that individuals may be placed in separate hold rooms based on factors such as

15 gender, age, and family groups, where feasible. (Id. ¶ 12.)

16

These stated variations are, in fact, irrelevant to the commonality determination

17 because Plaintiffs do not seek to assert classwide claims based on the length of individual

18 detentions, the placement or grouping of individual detainees, or other personalized

19 factors. Instead, their claims are based on alleged Sector-wide conditions of confinement

20 that they claim all overnight detainees are subjected to in all Tucson-Sector Border Patrol

21 locations. (See, e.g., Doc. 1 ¶¶ 1, 79, 81-83, 87-88.) Defendants make no claims that the

22 factors at issue in the Complaint, such as the lack of beds and blankets, food, water,

23 health care, and other basic necessities, vary by facility. Nor do they claim that basic

24 provisions are otherwise meted out differently for different detainees based on the time,

25 place, or reason for their detention or any other individualized considerations. The

26 differences in length of confinement, location, and other incidentals Defendants would

27 have the Court focus on are therefore merely a distraction from the underlying

28 commonality of Plaintiffs’ due process and APA claims.

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 10 of 23

1

Second, Defendants’ argument that commonality does not exist because Plaintiffs

2 have not identified any policies underlying their claims relies on an overly narrow

3 interpretation of the Ninth Circuit’s opinion in Parsons v. Ryan, 754 F.3d 657 (9th Cir.

4 2014). As Defendants note (Doc. 41 at 12-13.), the Ninth Circuit in Parsons affirmed

5 commonality where the district court had identified ten statewide Arizona Department of

6 Corrections (ADC) policies to which all members of the putative class were subject. 754

7 F.3d at 678. Crucial to the court’s finding was that, although the precise injuries of

8 putative class members would necessarily differ, “every inmate suffers exactly the same

9 constitutional injury when he is exposed to a single statewide ADC policy or practice that

10 creates a substantial risk of serious harm.” Id. The court reasoned that “[w]hat all

11 members of the putative class . . . have in common is their alleged exposure, as a result of

12 specified statewide ADC policies and practices that govern the overall conditions of

13 health care services and confinement, to a substantial risk of serious future harm.” (Id.)

14

Defendants would have the Court distinguish the instant case from Parsons,

15 purportedly because Plaintiffs have not identified any official policies to which all

16 immigration detainees in the proposed class are subject. (Doc. 41 at 12-14.) As already

17 noted, however, Plaintiffs allege and put forth affidavit evidence to support that all

18 members of the proposed class are subject to the same set of overall conditions while

19 detained in Tucson-sector hold cells, including cold temperatures, lack of beds and

20 blankets, and lack of adequate food, water, hygiene supplies and other provisions.

21 Plaintiffs allege, in particular, that Plaintiffs’ counsel has interviewed more than 75

22 individuals who, collectively, were detained in all eight Tucson Sector CBP facilities at

23 various times in 2014 and 2015, and that “the descriptions of the holding cells by the

24 former detainees are consistent with” all of the various inhumane conditions Plaintiffs

25 allege. (Doc. 1 ¶¶ 87-88.) Thus, the same considerations of common exposure to harm

26 created by overall conditions of confinement that led to class certification in Parsons are

27 present here.

28

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 11 of 23

1

Finally, it is not the case, as Defendants appear to argue, that class certification is

2 only appropriate where Plaintiffs can identify specific stated policies that violate the

3 rights of putative class members. A policy, practice, or custom may be inferred from

4 widespread practices or evidence of repeated constitutional violations for which the

5 errant officials are not reprimanded. Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th

6 Cir. 2005) (citing Nadell v. Las Vegas Metro. Police Dep’t., 268 F.3d 924, 929 (9th Cir.

7 2001)).

8

In Parsons, the plaintiff class claimed in part that “despite ADC stated policies,

9 the actual provision of health care in its prison complexes suffers from systemic

10 deficiencies that rise to the level of [a constitutional violation].” 289 F.R.D. 513, 521

11 (D. Ariz. 2013) aff’d, 754 F.3d 657 (9th Cir. 2014). Similarly, in this case, Plaintiffs

12 claim that a number of actual, systemic deficiencies in all Tucson-Sector Border Patrol

13 facilities violate the rights of all putative class members. Moreover, Plaintiffs have

14 provided sufficient affidavit evidence from putative class members to plausibly support

15 each of the asserted deficiencies. As already discussed, claims involving overall

16 conditions that affect the rights of all putative class members are sufficient to satisfy

17 commonality. Whether such conditions result from Defendants’ stated policies or from

18 their alleged failure to create or adhere to those policies does not change the commonality

19 analysis. The Court finds the commonality requirement satisfied.

20

C. Typicality

21

“The commonality and typicality requirements of Rule 23(a) tend to merge.” Wal-

22 Mart, 131 S. Ct. at 2551 n. 5 (quoting Falcon, 457 U.S. at 158-59). In Armstrong, the

23 Ninth Circuit explained that “named plaintiffs’ injuries [need not] be identical with those

24 of the other class members, only that the unnamed class members have injuries similar to

25 those of the named plaintiffs, and that the injuries result from the same, injurious course

26 of conduct.” Armstrong, 275 F.3d at 869.

27

Defendants argue that Plaintiff Flores, in particular, should be dismissed because

28 he was not confined at a CBP facility at the time Plaintiffs filed the Complaint on June 8,

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 12 of 23

1 2015, and he therefore lacks standing to sue. (Doc. 41 at 16 n. 7.) Defendants maintain

2 that although Flores claims to fear being detained by Border Patrol in the future, he has

3 not shown that any such future detention is “reasonably likely to occur.” (Id.)

4

This argument is unfounded because the proposed class definition includes all

5 individuals “who are now or in the future will be detained for one or more nights at a

6 CBP facility . . . within the Border Patrol’s Tucson Sector” (Doc. 4 at 6), and the

7 allegations in the Complaint support that Flores was previously and may again be so

8 detained. The Complaint alleges that Flores was taken to a Tucson Sector Border Patrol

9 Station after a minor traffic violation on August 10, 2014, and was held for

10 approximately 36 hours. (Doc. 1 at 12 ¶¶ 56.) While in custody, Flores allegedly

11 presented documentation that he was represented by immigration counsel, but he was

12 denied contact with his attorney. (Id. at 13 ¶ 63.) The Complaint further alleges that, due

13 to a backlog in issuing Visas, Flores has not yet received his U Nonimmigrant Visa, and

14 he believes he could be detained by Border Patrol again. (Id. at 14 ¶ 64.) For purposes of

15 standing, Flores’s previous 36 hour detention without contact with counsel after a minor

16 traffic violation, coupled with his indeterminate wait for his approved Visa is sufficient to

17 show an “actual or imminent invasion of a legally protected interest.” Lujan v. Defs. of

18 Wildlife, 504 U.S. 555 (1992); c.f. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133,

19 1138 (9th Cir. 2002) (“[A] plaintiff who is threatened with harm in the future because of

20 existing or imminently threatened non-compliance with the ADA suffers ‘imminent

21 injury.’”).

22

Defendants additionally argue, as to all named Plaintiffs, that the same factual

23 variations already set forth to show a lack of commonality defeat typicality. (Doc. 41 at

24 15.) This argument also lacks merit. As already discussed, Defendants have not shown

25 that variations in such factors as length of stay or facility location have any discernable

26 bearing on the overall conditions that Plaintiffs assert affect all overnight detainees in

27 Tucson-Sector Border Patrol facilities.

28

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 13 of 23

1

Defendants also argue against typicality because they contend that some putative

2 class members may never experience the specific deprivations Plaintiffs allege, but will,

3 instead, receive food, water, showers, and mattresses under the Border Patrol policies

4 described in Padilla’s declaration. (See id. at 16; Doc. 39-1 at 6 ¶¶ 15-16.) This

5 argument goes to the merits of Plaintiffs’ claims, however, and does not establish the

6 existence of any individually-based distinctions between the alleged treatment of named

7 Plaintiffs in Tucson-Sector Border Patrol hold cells and the overall conditions of

8 confinement that Plaintiffs allege impact all overnight detainees.

9

Defendants posit further possible distinctions between class members that they

10 argue undercut typicality, noting, for instance, that a criminal detainee may be held

11 shackled and locked in isolation while an unaccompanied minor would be placed with

12 others in a hold cell with an open door. (Doc. 41 at 16.) These purported distinctions are

13 also just a distraction, however, from Plaintiffs’ contentions of specific constitutionally-

14 deficient conditions of confinement that apply to all overnight detainees, and they do not

15 speak to whether the experiences of the named Plaintiffs typify those of the proposed

16 class. Here, the named Plaintiffs are either currently housed in or have been housed for at

17 least one night in Tucson-Sector Border Patrol facilities and face the threat of repeated

18 detention. The named Plaintiffs have therefore experienced the same overall conditions

19 of confinement that Plaintiffs have plausibly alleged are common to all Tucson-Sector

20 Border Patrol facilities. The Court finds the typicality requirement satisfied.

21

D. Adequacy of Representation

22

Finally, Rule 23(a)(4) requires that class representatives fairly and adequately

23 represent the interests of the entire class. “This factor requires: (1) that the proposed

24 representative Plaintiffs do not have conflicts of interest with the proposed class, and (2)

25 that Plaintiffs are represented by qualified and competent counsel.” Dukes v. Wal-Mart

26 Stores, Inc, 603 F.3d 571, 614 (9th Cir. 2010) rev’d on other grounds by 131 S. Ct. 2541.

27 For the reasons set forth below, the Court finds the adequacy of representation

28 requirement is also satisfied.

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 14 of 23

1

1. Named Representatives

2

Defendants specifically challenge the adequacy of Flores’s representation because,

3 they argue, Flores’s desire to maintain his U Nonimmigrant Visa status (see Doc. 1 at 11

4 ¶ 54) could place his own interests in conflict with those of the class. (Doc. 41 at 17).

5 Defendants do not explain how seeking to maintain a lawful presence in the United States

6 would put Flores’s interests at odds with those of the class or would otherwise interfere

7 with his ability to represent the interests of the class in this action. As already noted,

8 Plaintiffs allege that Flores was previously detained in CBP custody where he

9 experienced the same systemic conditions alleged throughout the Complaint, he is still

10 awaiting his actual Visa, and he continues to fear possible detention under the same set of

11 conditions. The Court does not find Flores’s approval for a U Nonimmigrant Visa a

12 sufficient reason to disqualify him as a class representative at this time. Even if Flores’s

13 claims for relief later become moot by the issuance of his awaited Visa, this would not

14 affect class certification because where, as here, an individual’s claims are inherently

15 transitory, “the ‘relation back’ doctrine is properly invoked to preserve the merits of the

16 case for judicial resolution.” City. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)

17 (internal citations omitted).

18

Defendants also argue that all named Plaintiffs are inadequate to serve as class

19 representatives because some putative class members allege unaddressed or mishandled

20 medical issues, and none of the named Plaintiffs profess medical ailments for which they

21 were denied proper care. (Id. at 17.) Defendants further argue that the Complaint alleges

22 that Defendants’ policies and practices have caused “irreparable, ongoing physical and

23 psychological harm” and that named Plaintiffs have not alleged that they have personally

24 suffered such harms, making them additionally unsuitable to represent the interests of the

25 proposed class. (Id.)

26

As already discussed, Plaintiffs need not demonstrate that all class members have

27 been subjected to identical harms. Neither is it necessary for each named representative

28 to have suffered the full spectrum of harms represented by the class as a whole. Staton v.

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 15 of 23

1 Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003) (recognizing that, “‘[u]nder [Rule 23(a)’s

2 permissive standards,’” plaintiffs are not required to offer a class representative for each

3 type of discrimination claim alleged (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011,

4 1020 (9th Cir. 1998)). Moreover, as to medical care, in particular, the Ninth Circuit

5 found in Parsons that systemic deficiencies affect even those who have not or will not

6 experience specific medical needs. 754 F.at 679 (9th Cir. 2014) (citing Plata, 131 S. Ct.

7 at 1940) (Noting that, “[a]s Justice Kennedy explained in Plata, inadequate health care in

8 a prison system endangers every inmate.”). Here, too, Plaintiffs allege an overall lack of

9 medical care and screening. (See, e.g., Doc. 1 at ¶¶ 1, 27-30, 127-135.) In addition, they

10 allege that Flores was housed with other detainees who were vomiting or suffering from

11 diarrhea but did not receive any medical attention. (Doc. 1 at 13 ¶ 62.) Under such

12 circumstances, the Court does not find that a lack of individual medical ailments while in

13 CBP custody makes the named Plaintiffs unsuitable to represent the asserted due process

14 right to medical care of the class.

15

It is also not the case, as Defendants argue, that the named Plaintiffs have failed to

16 allege some form of harm. Plaintiffs allege in the Complaint that “[t]he inhumane and

17 dangerous conditions in the Tucson Sector facilities result in irreparable, ongoing

18 physical and psychological harm to Plaintiffs and putative class members and serious risk

19 of future harm.” (Doc. 1 at 5 ¶ 10.) Defendants appear to argue that this allegation does

20 not apply to named Plaintiffs because they have not alleged specific physical and

21 psychological injuries. A partial sampling of allegations shows, however, that each of the

22 named Plaintiffs allegedly endured cold temperatures with minimal clothing, lack of beds

23 or bedding, loss of sleep, lack of proper hygienic supplies, lack of medical screening,

24 constant illumination, and little food or water while in CBP custody. (See Doc. 1 ¶¶ 21-

25 29, 40-49, 53, 56-62.) These allegations are sufficient to show that the named Plaintiffs

26 suffered harms typical of the class and that their interests in challenging CBP’s

27 conditions of confinement align with the interests of the class as a whole. Adequacy of

28 representation is satisfied as to the class representatives.

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 16 of 23

1

2. Plaintiffs’ Counsel

2

Plaintiffs are represented by the ACLU Foundation of Arizona, the American

3 Immigration Council, the National Immigration Law Center, the Lawyers’ Committee for

4 Civil Rights of the San Francisco Bay Area, and Morrison & Forester LLP. Collectively,

5 counsel has successfully litigated a number of class action cases regarding the rights of

6 immigrants and conditions of confinement. (Doc. 4 at 19; see Docs. 1-1, -2, -3, -4, -5.)

7 Defendants do not challenge the adequacy of representation in this case. (Doc. 41 at 17

8 n. 8.) The Court finds that Plaintiffs are represented by qualified and competent counsel.

9 Adequacy of representation is satisfied.

10 IV. Rule 23(b)(2)

11

Plaintiffs are also charged with satisfying one of the requirements in Rule 23(b),

12 which applies when “the party opposing the class has acted or refused to act on grounds

13 that apply generally to the class, so that final injunctive relief or corresponding

14 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

15 23(b)(2). In this case, Plaintiffs allege that Rule 23(b)(2) is met because they allege

16 unconstitutional conditions of confinement stemming from systemic policies and

17 practices. (Doc. 4 at 20.)

18

Defendants again argue that “Plaintiffs do not challenge a single policy applying

19 to all facilities, but rather various practices amongst the facilities.” (Doc. 41 at 18.) As

20 already discussed, this argument ignores the systemic nature of the conditions alleged in

21 Plaintiffs’ Complaint. As noted, Plaintiffs allege and provide declaration evidence to

22 support that each of the due process and APA violations they assert commonly occur at

23 all Tucson-Sector CBP facilities. It matters little to this analysis whether such conditions

24 result from identified policies or from the absence or violation of such policies or even

25 whether every putative class member experiences every alleged harm. For purposes of

26 Rule 23(b)(2), what matters is that a pattern of alleged violations can be remedied for all

27 putative class members by the same form of injunctive relief. As the Ninth Circuit

28 explained in Walters v. Reno:

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 17 of 23

1

[a]lthough common issues must predominate for class

certification under Rule 23(b)(3), no such requirement exists

2

under 23(b)(2). It is sufficient if class members complain of a

3

pattern or practice that is generally applicable to the class as a whole. Even if some class members have not been injured by

4

the challenged practice, a class may nevertheless be

5

appropriate.

6 145 F.3d 1032, 1047 (9th Cir. 1998) (citing 7A Charles Alan Wright, Arthur R. Miller &

7 Mary Kay Kane, Federal Practice & Procedure § 1775 (2d ed. 1986)).

8

Plaintiffs’ claims for injunctive relief stemming from allegedly unconstitutional

9 conditions of confinement are the quintessential type of claims that Rule 23(b)(2) was

10 meant to address. As discussed above, the claims of systemic deficiencies in CBP’s

11 detention facilities apply to all putative class members. Further, while the Court is

12 cognizant that any proposed injunction must also meet Rule 65(d)’s specificity

13 requirement, the Court does not find that Plaintiffs have crafted their requests for

14 injunctive relief “at a stratospheric level of abstraction.” Shook v. Bd. of County

15 Comm’rs, 543 F.3d 597, 604 (10th Cir. 2008). Instead, Plaintiffs specifically request

16 injunctive relief for alleged unconstitutional conditions, acts, or omissions that affect all

17 individuals who are detained for at least one night in CBP Tucson Sector facilities.

18 (Doc. 1 at 53-54 ¶ 228.) They seek, as a minimum, the provision of basic necessities,

19 such as beds and bedding; access to soap, toothpaste, and other hygienic and sanitary

20 supplies; clean drinking water and healthy food; medical screening and emergency

21 medical care; and uniform enforcement of health and safety standards. (Id. at 54 ¶¶ 229-

22 335.) Thus, the remedies Plaintiffs seek would not lie in providing specific care or

23 provisions to specific inmates as Defendants appear to assert. Rather, the conditions of

24 confinement would be raised for all inmates, and, if successful, a proposed injunction

25 would prescribe “a standard of conduct applicable to all class members.” Shook, 543

26 F.3d at 605.

27

Plaintiff’s outline of injunctive relief in their Complaint is sufficient at this stage

28 to meet Rule 23(b)(2)’s requirements.

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 18 of 23

1 V. Class Definition

2

Defendants argue that the proposed class definition does not meet the standard that

3 “[a] class definition should be ‘precise, objective, and presently ascertainable.’”

4 O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1988) (quoting Manual

5 for Complex Litigation, Third § 30.14, at 217 (1995)). (Doc. 41 at 4). Specifically, they

6 argue that Plaintiffs’ proposed class definition is unclear as to (1) what facilities are

7 included, (2) what is meant by “detained,” and (3) what is meant by spending a “night” in

8 one of the included facilities. (Id. at 4-8.). The Court will address each of these

9 objections in turn.

10

A. Applicable Facilities

11

Defendants maintain that it is unclear what facilities are included in the phrase “a

12 CBP facility, including Border Patrol facilities, within the Border Patrol’s Tucson

13 Sector.” (Id. at 5.) They note that, in addition to the eight Border Patrol stations in the

14 Border Patrol’s Tucson Sector, CBP has ports of entry (POEs) along the Arizona/Mexico

15 border that are operated by a different office of CBP from Border Patrol, and the POEs

16 are not within the Border Patrol’s Tucson Sector. These facts make clear, and Plaintiffs

17 agree (see Doc. 42 at 8, 8 n. 1), that POEs are necessarily excluded from the proposed

18 class definition because they are not part of the Border Patrol’s Tucson Sector.

19 Defendants argue nonetheless that the phrase “a CBP facility, including Border Patrol

20 facilities, within the Border Patrol’s Tucson Sector” suggests that Plaintiffs intend to

21 include more than just the eight Border Patrol stations in the Tucson Sector, and it is

22 unclear what other facilities, if not POEs, the proposed definition would encompass.

23 (Doc. 41 at 5.)

24

The Court agrees that this phrase is problematic. As Defendants argue, the clause

25 “including Border Patrol facilities” raises questions about what facilities the class

26 definition is intended to encompass besides the eight Border Patrol stations thereby

27 indicated. Besides adding potential confusion, this clause is unnecessary. Because CBP

28 is the Border Patrol’s parent agency, the term “a CBP facility” necessarily includes any

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 19 of 23

1 and all Border Patrol facilities in the Border Patrol’s Tucson Sector, and there is no need

2 to restate this. For these reasons, the Court will modify the proposed class definition to

3 eliminate the clause “including Border Patrol facilities.” Absent this clause, the class

4 definition still pertains to the eight Border Patrol stations within the Border Patrol’s

5 Tucson Sector that form the locus of Plaintiffs’ Complaint. (See Doc. 1 ¶ 87) (The more

6 than 75 individuals interviewed by Plaintiffs’ counsel had collectively been confined in

7 all eight Tucson Sector Border Patrol stations). The modified definition also still allows

8 the pending class action to apply uniformly—particularly with respect to Plaintiffs’

9 prayers for system-wide injunctive relief—in the event CBP or the Border Patrol utilizes

10 any additional CBP facilities besides the existing eight Border Patrol Stations to detain

11 individuals in the Border Patrol’s Tucson Sector.

12

B. The Meaning of “Detained”

13

Defendants argue that the proposed class definition lacks precision about what it

14 means for an individual to be “detained” in the context of Border Patrol operations.

15 (Doc. 41 at 6.) Defendants acknowledge that individuals apprehended by Border Patrol

16 are “in custody” from the time they are apprehended in the field and brought to a Border

17 Patrol station for processing until they are released, removed, or transferred. (Doc. 41

18 at 6.) Defendants maintain, however, that Border Patrol custody is unique and variable

19 because some individuals may receive medical treatment or meet with consular officials

20 during this time, the length of custody varies based on factors determined during

21 processing but is intended to be brief, and “Border Patrol stations are not designed for

22 long-term care and detention as that term is ordinarily understood.” (Id.) For these

23 reasons, Defendants argue, “detention” is not appropriate to describe the short-term

24 period of custody that occurs at Border Patrol stations. (Id.)

25

Defendants once again rely on distinctions that confuse the real issue. Even if, as

26 they assert, Border Patrol custody is impacted by a number of variables and is relatively

27 short term, this does not mean that it is not custody just the same. Nor does it mean that

28 those “in custody” for at least the one-night minimum period the class definition covers

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 20 of 23

1 are not “detained.” Plaintiffs assert that the common meaning of the word “detain” is “to

2 hold or keep in or as if in custody.” (Doc. 42 at 8, quoting Mirian Webster Dictionary,

3 http://www.merriam-webster.com/dictionary/detain.) They further quote from CBP’s

4 own guidelines which refer to “the short term custody of persons . . . detained in hold

5 rooms in Border Patrol stations.’” (Doc. 42 at 8, quoting U.S. Border Patrol Policy

6 Memorandum, “Hold Rooms and Short Term Custody,” Doc. 26-1 at 5) (emphasis

7 added.) Thus, CBP, itself, recognizes custody as detention, at least where such custody

8 involves placement in hold rooms, which is a unifying factor in the allegations

9 throughout the Complaint.

10

The Court concludes, for purposes of this action, that the word “detained” equates

11 to an individual being in Border Patrol custody and thereby lacking the freedom to leave.

12 This is in keeping with the ordinary definition of the word “detained,” and, when looked

13 at in conjunction with the other parameters of the proposed class definition, is precise

14 enough to ascertain whether an individual is a member of the proposed class.

15

C. Meaning of “For One or More Nights”

16

Defendants argue that the phrase “for one or more nights” lacks clarity in the

17 context of Border Patrol operations because individuals are brought in and out of Border

18 Patrol facilities at all hours. (Doc. 41 at 7.) They posit a number of scenarios in which

19 different types of individuals who are apprehended and processed at different times of the

20 day or night have very different experiences. These individuals may include an

21 unaccompanied minor picked up at 7:00 p.m., then transferred to the Tucson

22 Coordination Center at 9:00 p.m., and then transferred to ORR custody at 11:30 p.m.; a

23 criminal alien picked up with drugs in his possession at 1:00 a.m., then held in isolation

24 at the Nogales Station, and then transferred to Tucson for prosecution at 5:00 a.m.; or a

25 pregnant woman picked up at 11:00 p.m., then taken to the Casa Grande Station, and then

26 transferred to a local medical care center at 2:00 a.m. (Id.) Defendants argue that

27 whether any of these individuals would come under Plaintiffs’ proposed class definition

28

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 21 of 23

1 is unclear because Plaintiffs do not provide clarity about what constitutes the beginning

2 or end of the “night.” (Id. at 6-7.)

3

Plaintiffs respond that this part of the proposed class definition is not ambiguous

4 because other courts have certified classes based on “overnight” detention. (Doc. 42 at 9,

5 citing cases.) They also argue that “‘overnight,’ is commonly understood to mean

6 ‘during the night,’ or ‘of, lasting, or staying the night.’” (Id., quoting Mirian Webster

7 Dictionary, http://www.merriam-webster.com/dictionary/overnight.) Plaintiffs maintain

8 that it is clear that Defendants’ scenarios would not satisfy this definition because each of

9 those examples “pertains to detention lasting for only a portion of the night.” (Doc. 42

10 at 9.)

11

The Court agrees with Plaintiffs that being detained for “one or more nights” is

12 commonly understood to involve a stay of at least one night. Nonetheless, the Court

13 agrees with Defendants that such an understanding is not sufficient here, where

14 individuals are brought in and out of detention at all hours, and where there is no

15 additional common understanding of when, exactly, a night begins and ends. Even if, as

16 Plaintiffs assert, Defendants’ proposed scenarios are too short to constitute more than just

17 a “portion of the night,” it is not clear how many hours would tip the scales into an

18 “overnight” stay or just what would satisfy the intent of Plaintiff’s proposed class

19 definition.

20

The cases upon which Plaintiffs rely to show that “overnight,” as it is commonly

21 understood, is adequate are inapposite because in Brown v. City of Detroit, the district

22 court certified a class consisting of those detained by the Detroit Police Department

23 “overnight or for more than sixteen hours in a 24-hour period.” No. 10-12162, 2012 WL

24 4470433, at *19 (E.D. Mich. Sept. 27, 2012). Thus, the class definition in Brown

25 included parameters beyond the common understanding of “overnight” that would

26 resolve when even a daytime or partial-night detention would qualify. Similarly, in Dunn

27 v. City of Chicago, the class was defined in relevant part as “[a]ll persons held in a[n] . . .

28 interrogation or interview room for more than sixteen hours in a 24–hour period.” 231

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Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 22 of 23

1 F.R.D. 367, 370 (N.D. Ill. 2005) amended on reconsideration, No. 04 C 6804, 2005 WL

2 3299391 (N.D. Ill. Nov. 30, 2005). Plaintiffs proposed class definition lacks this added

3 clarity. This deficiency is particularly important, where, as here, the temporal parameters

4 of confinement are inherently tied to the relief sought on behalf of the class, such as the

5 provision of beds, bedding, and various hygiene supplies. For this reason, the Court

6 cannot sua sponte modify the proposed class definition without inserting itself into the

7 role of Plaintiffs in framing the precise circumstances they believe call for such relief.

8

Despite this issue, the Court does not find that a more precise definition of what it

9 means to be detained “for one or more nights” is required before it can certify the

10 proposed class as defined in this Order, provided Plaintiffs file an amended class

11 definition more exactly defining “for one or more nights.”

12

The Court will therefore certify the class as set forth below, but will require

13 Plaintiffs to file an amended definition better describing “one or more nights,” and the

14 Court will thereafter finalize the class definition, unless the Defendants object to the

15 amended class definition.

16

Accordingly,

17

IT ORDERED:

18

(1) Plaintiffs’ Motion for Class Certification (Doc. 4) is granted.

19

(2) The following Class is certified under Rule 23(b)(2):

20

All individuals who are now or in the future will be detained

21

for one or more nights at a CBP facility within the Border

Patrol’s Tucson Sector.

22

23

(3) The Class is certified as to Defendants’ alleged violations under the Fifth

24 Amendment Due Process Clause and the APA of the following asserted rights:

25

(a) The right to sleep,

26

(b) The right to hygienic and sanitary conditions,

27

(c) The right to adequate medical care,

28

(d) The right to adequate food and water, and

- 22 -

Case 4:15-cv-00250-DCB Document 117 Filed 01/11/16 Page 23 of 23

1

(e) The right to warmth.

2

(4) Named Plaintiffs Jane Doe #1, Jane Doe #2, and Norlan Flores are

3 appointed as Class representatives.

4

(5) Within 5 days of the filing date of this Order, the Plaintiffs must file an

5 amended class definition more exactly describing what “one or more nights” means in the

6 context the operative class definition.

7

(6) Defendants will have ten days from the filing date of the Plaintiffs’

8 amended class definition to object to the “one or more nights” amendment.

9

(7) The Court shall rule on any objections and approve the amended class

10 definition as submitted by Plaintiffs or as modified by the Court if necessary to resolve

11 any objection from the Defendants.

12

Dated this 11th day of January, 2016.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 1 of 12

1

SKC

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties,

No. CV 15-00250-TUC-DCB

10

Plaintiffs,

11 v.

ORDER

12 Jeh Johnson, et al.,

13

Defendants.

14

15

Plaintiffs, three civil immigration detainees who are or were confined in a U.S.

16 Customs and Border Protection (CBP) detention facility in the Tucson Sector of the U.S.

17 Border Patrol, brought this putative class action pursuant to Bivens v. Six Unknown

18 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 1.)

19 Defendants Jeh Johnson, Secretary of the U.S. Department of Homeland Security (DHS);

20 R. Gill Kerlikowske, CBP Commissioner; Michael J. Fisher, CBP Chief; Jeffrey Self,

21 Commander of the Arizona Joint Field Command of CBP; and Manuel Padilla, Jr., Chief

22 Patrol Agent for the U.S. Border Patrol’s Tucson Sector have filed a Motion to Dismiss

23 for lack of standing and failure to state a claim. (Doc. 52). The Motion has been fully

24 briefed. (Docs. 62, 65.)

25

For the reasons stated below, the Court will grant the Motion in part and deny it in

26 part.

27 . . . .

28 . . . .

Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 2 of 12

1 I. Background

2

Plaintiffs filed this action in June 2015. At that time, the first two Plaintiffs, Jane

3 Does #1 and #2, were in custody at the Tucson Border Patrol Station in Tucson, Arizona.

4 (Doc. 1 ¶¶ 15, 35.) The third Plaintiff, Norlan Flores, was living in Tucson, Arizona, and

5 had twice been in custody at the Tucson Border Patrol Station, once in 2007, and once in

6 2014. (Id. ¶¶ 52-53, 55-56.)

7

Plaintiffs assert six claims for relief related to the treatment of Tucson Sector civil

8 immigration detainees. Plaintiffs’ first five claims stem from Defendants’ alleged

9 violation of the Due Process Clause of the Fifth Amendment based on their subjection of

10 Plaintiffs and proposed class members to deprivation of sleep, deprivation of hygienic

11 and sanitary conditions, deprivation of adequate medical screening and care, deprivation

12 of adequate food and water, and deprivation of warmth. (Doc. 1 ¶¶ 184-218.) Plaintiffs’

13 sixth claim stems from Defendants’ alleged violation of the Administrative Procedures

14 Act (APA) based on their failure to enforce their own procedures related to the operation

15 of holding cells in Tucson Sector facilities. (Id. ¶¶ 219-24.)

16

Plaintiffs seek declaratory and injunctive relief, including an Order compelling

17 Defendants to provide Plaintiffs and the proposed class with beds and bedding; access to

18 soap, toothbrushes, toothpaste, and other sanitary supplies; clean drinking water and

19 nutritious meals; constitutionally adequate cell occupancy rates, temperature control, and

20 fire, health, and safety standards; medical, dental, and mental health screening; and

21 emergency medical care. (Id. ¶¶ 230-35.) Plaintiffs also request Court-ordered

22 monitoring as appropriate. (Id. ¶ 236.)

23 II. Motion to Dismiss

24

A. Standing

25

To sue in federal court, a plaintiff must have standing under Article III of the

26 United States Constitution; that is, the plaintiff “must have suffered, or be threatened

27 with, an actual injury traceable to the defendant and likely to be redressed by a favorable

28 judicial decision.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). The party

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 3 of 12

1 invoking federal jurisdiction bears the burden of establishing the three elements of

2 constitutional standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

3 “The general rule applicable to federal court suits with multiple plaintiffs is that once the

4 court determines that one of the plaintiffs has standing, it need not decide the standing of

5 the others.” Leonard v. Clark, 12 F.3d 885, 888 (9th Cir.1993).

6

Defendants argue that all three Plaintiffs lack the requisite showing of injury for

7 standing because none of them is currently in CBP custody or faces an imminent threat of

8 being so detained in the future. (Doc. 53 at 4.) For purposes of standing, the alleged

9 injury must be “actual or imminent, not conjectural or hypothetical,” and it must be

10 “likely, as opposed to speculative, that the injury will be redressed by a favorable

11 decision.” Lujan, 504 U.S. at 560-61 (internal quotation marks and citations omitted).

12 Defendants argue that Flores does not satisfy this burden because he is not currently in

13 custody, and his purported fear of being detained in the future is merely conjectural.

14 (Doc. 52 at 4.) They argue that the Doe Defendants also fail to show either a current

15 injury or the likelihood of any future injury because they have been transferred out of

16 CBP custody to Immigration and Customs Enforcement (ICE) custody and they would

17 only be returned to CBP custody if they were removed from the United States and then

18 chose to reenter the country illegally. (Id. at 4-5.) Absent a more definite showing of

19 future harm, Defendants argue, Plaintiffs lack standing because they cannot show injuries

20 that would be redressed by a favorable decision in this action, and their claims are, for the

21 same reasons, moot. (Id.)

22

Defendants’ arguments are inapt in this case because it is undisputed that the two

23 Doe Plaintiffs were in CBP custody when the Complaint was filed, and they alleged

24 constitutionally inadequate treatment at that time. (Doc. 1 ¶¶ 15-51.) These Plaintiffs

25 therefore presented actual injuries capable of redress by the relief sought in this action.

26 Although, as Defendants argue, changes in circumstances that cause the cessation of a

27 plaintiff’s alleged injuries ordinarily deprive that plaintiff of standing and moot his or her

28 claims for future injunctive relief, the standing and mootness analyses require more

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 4 of 12

1 elasticity in cases such as this where Plaintiffs’ claims and those of the class they seek to

2 represent are “inherently transitory.” County of Riverside v. McLaughlin, 500 U.S. 44, 52

3 (1991). The Supreme Court squarely addressed just such a situation in County of

4 Riverside, in which the named plaintiffs, who had been arrested without warrants,

5 claimed they were not afforded timely bail hearings or probable cause determinations.

6 (Id. at 49.) The Court found that these plaintiffs plainly had injuries when they filed their

7 complaint that were, “at that moment[,] capable of being redressed through injunctive

8 relief.” (Id. at 51.) Even though these claims were subsequently rendered moot because

9 the plaintiffs were eventually given probable cause determinations or released, the Court

10 found such circumstantial relief an insufficient basis to deny standing where the

11 constitutionally objectionable practice continued and where class certification “preserved

12 the merits of the controversy.” (Id.) The Court maintained this position even though in

13 that case, as here, the putative class had not been certified before the named plaintiffs’

14 injuries ceased. (Id.) The Court cited a number of similar cases for the proposition that

15 even after the claims of proposed class representatives expire, “the ‘relation back’

16 doctrine is properly invoked to preserve the merits of the case for judicial resolution.”

17 (Id., citing, e.g., Gerstein v. Pugh, 420 U.S. 103, 110 (1975); U.S. Parole Comm’n v.

18 Geraghty, 445 U.S. 388, 399 (1980)).

19

Because the Court finds, based on the above, that the Doe Plaintiffs have standing

20 to sue on behalf of themselves and the putative class on the claims set forth in the

21 Complaint, it need not determine for purposes of this motion whether Plaintiff Flores,

22 who was not confined at the time this action was filed, has standing on the grounds that

23 he faces the likely threat of future detention. See Leonard, 12 F.3d at 888.

24

B. Sufficiency of Plaintiff’s Claims

25

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the claims alleged

26 in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003).

27 Dismissal of the complaint, or any claim within it, may be based on either a “‘lack of a

28 cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 5 of 12

1 legal theory.’” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th

2 Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

3 1990)). A complaint must contain “enough facts to state a claim to relief that is plausible

4 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Ashcroft v.

5 Iqbal, 556 U.S. 662, 677-78 (2009). But “[s]pecific facts are not necessary; the statement

6 need only give the defendant fair notice of what . . . the claim is and the grounds upon

7 which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation omitted).

8

In determining whether a complaint states a claim under this standard, the

9 allegations in the complaint are taken as true and the pleadings are construed in the light

10 most favorable to the nonmovant. Outdoor Media Group, Inc. v. City of Beaumont, 506

11 F.3d 895, 900 (9th Cir. 2007). A court may not consider evidence outside the pleadings

12 unless it converts the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment

13 and gives the nonmovant an opportunity to respond. Fed. R. Civ. P. 12(d); United States

14 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). A court may, however, consider documents

15 attached to the complaint or incorporated by reference in the complaint, or matters of

16 judicial notice, without converting the motion into one for summary judgment. Ritchie,

17 342 F.3d at 908.

18

1. Constitutional Claims

19

Plaintiffs allege that the conditions of their detentions in CBP facilities give rise to

20 a number of Fifth Amendment due process claims. Detainees held solely for suspected

21 violations of civil immigration laws are subject to civil, not criminal, proceedings, which

22 the Supreme Court has stated are to be “non-punitive in purpose and effect.” Zadvydas v.

23 Davis, 533 U.S. 678, 690, (2001). As to detention practices, the Supreme Court has held

24 that civil detainees “are entitled to more considerate treatment and conditions of

25 confinement than criminals whose conditions of confinement are designed to punish.”

26 Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). The Ninth Circuit has accordingly

27 found in the civil commitment context that a detainee awaiting adjudication as to his or

28 her commitment “is entitled to due process protections at least as great as those afforded

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 6 of 12

1 to a civilly committed individual and at least as great as those afforded to an individual

2 accused but not convicted of a crime.” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir.

3 2004). At a minimum, therefore, “an individual detained under civil process—like an

4 individual accused but not convicted of a crime—cannot be subjected to conditions that

5 ‘amount to punishment.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 536 (1979)).

6 Conditions amounting to punishment exist, either (1) “where the challenged restrictions

7 are expressly intended to punish,” or (2) “[where] the challenged restrictions serve an

8 alternative, non-punitive purpose but are nonetheless excessive in relation to the

9 alternative purpose, or are employed to achieve objectives that could be accomplished in

10 so many alternative and less harsh methods.” Jones, 393 F.3d at 932 (internal quotation

11 marks and citations omitted).

12

Defendants contend that Plaintiffs’ constitutional claims must be dismissed for

13 failure to state a claim because, they argue, CBP’s short-term processing facilities do not

14 implicate the same standards that apply in more typical detention settings. (Doc. 52 at 8.)

15 They further argue that the allegedly deficient conditions that the Plaintiffs claim violate

16 their due process rights do not constitute constitutional violations because they are

17 reasonable in light of CBP’s limited and short-term purpose of processing recently

18 apprehended immigration detainees for intended transfer or release. (Id. at 8-17.)

19

As to the claim for “deprivation of sleep,” Defendants argue that Plaintiffs fail to

20 allege any facts showing they were intentionally kept awake for punitive reasons, and the

21 facts they do allege fail to show that their rights to sleep were clearly violated. (Id. at 9.)

22 They maintain, for example, that both Doe Plaintiffs received “aluminum blankets,” were

23 able to get some sleep, and were only interrupted by immigration authorities asking

24 immigration-related questions or performing operationally-necessary tasks. (Id. at 9-10.)

25 Likewise, they argue that even though Flores claimed he got “little to no sleep during his

26 36 hour detention,” his allegations show he spent time in four different cells, indicating

27 he was being actively processed during that time. (Id. at 10.) Defendants maintain that

28 the various factors Plaintiffs assert contribute to a lack of sleep, such as continuous

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 7 of 12

1 lighting, cold temperatures, interruptions, and periodic overcrowding, are merely

2 incidental conditions that are reasonably related to the orderly operation of CBP facilities,

3 and they do not rise to the level of constitutional violations. (Id. at 10-11.)

4

Defendants make similar arguments with respect to all of Plaintiffs’ constitutional

5 claims. They argue (1) that the alleged unsanitary conditions of CBP’s holding cells are

6 de minimis and do not rise to the level of constitutional violations, and Plaintiffs do not

7 allege that they were deprived of showers, towels, and hygiene products, such as soap

8 and toothpaste, for punitive reasons; (2) any overcrowding is merely a function of

9 Defendants’ mandate to detain everyone apprehended in CBP’s Tucson Sector until they

10 are processed for transfer or release and thus inevitably fluctuates and is incidental to the

11 legitimate purpose of the facilities; (3) Plaintiffs have not alleged that they suffered from

12 any serious medical conditions that went untreated or had known illnesses or ailments

13 that were deliberately disregarded as a way to punish or inflict ongoing harm;

14 (4) Plaintiffs’ allegations of lack of adequate food and water show only that the

15 sustenance provided was limited and not to their tastes, not that they were significantly

16 deprived of these necessities; and (5) Plaintiffs’ complaints about temperature are

17 likewise de minimis and based purely on preferences for warmer temperatures; Plaintiffs

18 do not show that the temperature in holding cells was intended to punish or led to any

19 medical issues, and Plaintiffs acknowledge receiving blankets; thus, the alleged lack of

20 warmth also does not rise to the level of a constitutional violation. (Doc. 52 at 11-17.)

21

Plaintiffs argue, and the Court agrees, that Defendants primarily challenge the

22 substantive merits of Plaintiffs’ case and not the sufficiency of their allegations to state a

23 claim. (See Doc. 62 at 16.) Indeed, Defendants’ repeated assertions that the alleged

24 conditions at CBP facilities are “reasonable” due to the unique purpose and temporary

25 nature of civil immigration detentions relies on an interpretation of facts that is premature

26 at this stage of the proceedings. “‘[T]he motion [to dismiss] is not a procedure for

27 resolving a contest between the parties about the facts or the substantive merits of the

28 plaintiff’s case.’” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 8 of 12

1 (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

2 § 1356).

3

The proper inquiry here is whether Plaintiffs have alleged sufficient facts that,

4 taken as true, plausibly state a claim that conditions of detention at CBP facilities violate

5 their due process rights. As set forth above, it is possible to state such a claim even

6 where the alleged deprivations serve a legitimate purpose, but where those deprivations

7 are nonetheless alleged to be excessive under the circumstances or the same purposes

8 could plausibly be served using less harsh methods. See Jones, 393 F.3d at 932.

9

Here, Plaintiffs have alleged that none of the named Plaintiffs or potential class

10 members was given access to beds or mattresses, and they were forced to spend the night

11 on concrete floors or benches (Doc. 1¶ 103); the temperatures in holding cells are

12 extremely cold, and Border Patrol agents often ignore requests to turn the temperature up

13 (id. ¶¶ 111-112); “holding cells are often dirty and littered with garbage and discarded

14 food wrappers,” and piles of trash accumulate because there are no trash bins in holding

15 cells and cleaning is cursory and infrequent (id. ¶ 123); detainees are not given any

16 medical screening and are denied access to prescribed medication or requested relief for

17 known physical ailments (id. ¶¶ 129-133); and detainees are not provided adequate food,

18 may not have access to drinking water for hours at a time, and are not given sufficient

19 drinking cups (id. ¶¶ 136, 142, 144).

20

Taken as true, these and numerous similar allegations in the Complaint show that

21 Plaintiffs have suffered or that they or putative class members are likely to suffer

22 deprivations of adequate sleep, sanitary conditions, medical care, food and water, and

23 warmth in CBP Tucson Sector facilities as Plaintiffs claim. 1 Whether such deprivations

24

25

1 Defendants argue for the first time in their Reply brief that the Court should consider only the allegations of harm pertaining specifically to the named Plaintiffs

26

because a putative class action cannot proceed unless these Plaintiffs can, themselves, state a claim. The Court need not consider arguments raised for the first time in a reply

27

brief. See Marlyn Nutraceuticals, Inc. v. Improvita Health Prods., 663 F. Supp. 2d 841, 848 (D. Ariz. 2009) (citing Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990)

28

(noting that legal arguments raised for the first time in the reply brief are deemed waived). Defendants’ argument is in any case unavailing because, unlike in Boyle v.

Madigan, 492 F.2d 1180 (9th Cir. 1974), to which Defendants cite, the Court has

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 9 of 12

1 are reasonable in light of the limited duration and purpose of CBP detention, as

2 Defendants assert, requires weighing the evidence on both sides and goes beyond the

3 scope of the instant motion. Accordingly, the Court will deny Defendants’ Motion to

4 Dismiss as to Plaintiffs’ constitutional claims.

5

2. APA Claim

6

The APA provides for judicial review of “final agency action.” 5 U.S.C. § 704;

7 City of San Diego v. Whitman, 242 F.3d 1097, 1101 (9th Cir. 2001); Pacific Coast Fed’n

8 of Fishermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1033 (9th Cir.

9 2001) (“only final agency decisions are subject to review under the APA.”). For agency

10 action to be final, the action must (1) “mark the consummation of the agency’s

11 decisionmaking process,” and (2) “be one by which rights or obligations have been

12 determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S.

13 154, 177-78 (1997) (internal quotation marks and citations omitted). The action must

14 therefore “impose an obligation, deny a right[,] or fix some legal relationship.” City of

15 San Diego v. Whitman, 242 F.3d 1097, 1102 (9th Cir. 2001).

16

Defendants argue that Plaintiffs’ APA claim should be dismissed because it does

17 not pertain to any final agency action and, therefore, does not warrant judicial review.

18 (Doc. 52 at 5-6.) In response, Plaintiffs point to a June 2, 2008 CBP Memorandum

19 entitled Hold Rooms & Short Term Custody (“2008 Memorandum”) issued by then-Chief

20 of the U.S. Border Patrol David V. Aguilar (Doc. 62 at 12), and they argue that the

21

22 determined that Plaintiffs have standing with respect to an existing case or controversy.

23

Further, Plaintiffs have alleged that all the named Plaintiffs were subject to the same policies and conditions of detention for which they seek class-wide relief. See, e.g., Doc.

24

1 ¶ 79 (“The conditions experienced by the Plaintiffs are standard in holding cells in all short-term holding CBP facilities currently operated within the Tucson Sector and thus

25

have been or will be experienced by all putative class members”); ¶¶ 81-86 (alleging that each Plaintiff has been subjected to each of the enumerated deficiencies–lack of bedding,

26

extreme cold, lack of hygiene supplies, lack of medical screening, lack of food and water—alleged in the Complaint). Plaintiffs have additionally alleged that all named

27

Plaintiffs have suffered harm from their exposures to these conditions. (Id. ¶ 175.) Taken together, these allegations are sufficient for Plaintiffs to state a claim as to the

28 alleged unconstitutional conditions.

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 10 of 12

1 statements of policy contained in—but not limited to—this Memorandum constitute final

2 agency action. (Id. at 13.) Plaintiffs further contend that under 5 U.S.C. § 706(1), which

3 requires the reviewing court to “compel agency action unlawfully withheld or

4 unreasonably delayed,” they have stated a claim to have the Court compel Defendants to

5 act in accordance with their own standards. (Doc. 62 at 13-15.)

6

In Norton v. Southern Utah Wilderness Alliance, the Supreme Court made clear

7 that “[f]ailures to act are sometimes remediable under the APA, but not always.” 542

8 U.S. 55, 61 (2004). Significantly, the Court emphasized that “the only agency action that

9 can be compelled is action legally required.” Id. at 63 (emphasis in original). This

10 limitation “rules out judicial direction of even discrete agency action that is not

11 demanded by law” or by agency regulations “that have the force of law.” Id. at 65.

12 Defendants argue, and the Court agrees, that the documents Plaintiffs rely on to compel

13 Defendants to act do not have the force of law required to support their APA claim.

14

In River Runners for Wilderness v. Martin, a coalition of environmental groups

15 similarly argued that the National Park Service was legally obligated by its own policies

16 to set forth restrictions on the use of motorized vehicles in Grand Canyon National Park.

17 593 F. 3d 1064, 1071 (9th Cir. 2010). The Ninth Circuit found, however, that the policies

18 upon which these plaintiffs relied lacked the force of law and were instead “intended only

19 to provide guidance within the Park Service, not to establish rights in the public

20 generally.” Id. In reaching this conclusion, the court applied the following two-part test

21 from United States v. Fifty–Three (53) Eclectus Parrots, 685 F.2d 1131 (9th Cir. 1982),

22 for when agency pronouncements have the force and effect of law:

23

To have the force and effect of law, enforceable against an

24

agency in federal court, the agency pronouncement must

(1) prescribe substantive rules—not interpretive rules, general

25

statements of policy or rules of agency organization,

26

procedure or practice—and (2) conform to certain procedural requirements. To satisfy the first requirement the rule must

27

be legislative in nature, affecting individual rights and

28

obligations; to satisfy the second, it must have been promulgated pursuant to a specific statutory grant of authority

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 11 of 12

1

and in conformance with the procedural requirements

imposed by Congress.

2

3 Id. (quoting Eclectus Parrots, 685 F.2d at 1136. The court in River Runners found that

4 because the Park Service policies merely set forth the practices and procedures to be

5 followed by its own personnel in operating the national park system, they fell in the

6 category of “interpretive rules, general statements of policy or rules of agency

7 organization, procedure or practice” and thus failed to meet the first prong of this test.

8 River Runners, 593 F. 3d at 1071. The court also found that the policies failed to meet

9 the second prong because they were not published in the Federal Register 30 days before

10 going into effect as required for substantive rules under 5 U.S.C. § 553(d), and they were

11 never published in the Code of Federal Regulations as are agency rules intended to create

12 substantive rights of third parties. Id. at 1072.

13

Here, Plaintiffs refer in their Complaint to both the 2008 Memorandum and CBP

14 Security Policy and Procedures Handbook, HB1400-02B (“2009 CBP Handbook”).

15 (Doc. 1 ¶ 76.) They cite to these sources as setting forth policies on such things as

16 holding room sizes; lengths of detention; bedding requirements; safety and cleanliness;

17 provision of food, water, restrooms, showers, and hygiene supplies; access to medical

18 personnel; and access to phones, that they allege Defendants routinely violate. (Id. ¶¶ 90,

19 94, 101, 114, 116, 117, 123, 124, 127, 136, 142, 148.) Plaintiffs have not alleged any

20 facts, however, to support that these policy statements represent substantive rules that are

21 legally binding as opposed to being general rules of practice and procedure within the

22 agency. Plaintiffs quote from the forward to the 2009 CBP Handbook which states that it

23 implements policies from “a number of relevant source documents.” (Id. ¶ 77.)

24 Although some of these documents, such as “Public laws . . . regulations, [and] rules”

25 may have the force of law, this does not mean that the Handbook, itself, is legally binding

26 on Defendants, and Plaintiff’s do not otherwise allege violations of any source documents

27 that would give rise to an APA claim. Plaintiffs have also not alleged that either the 2008

28 Memorandum or the 2009 CBP Handbook were ever published in the Federal Register or

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Case 4:15-cv-00250-DCB Document 118 Filed 01/11/16 Page 12 of 12

1 otherwise promulgated as substantive rules, and they do not allege that these documents

2 were ever published in the Code of Federal Regulations. Based on the above, Plaintiffs

3 have not plausibly alleged that the agency policies referred to in the Complaint have the

4 force of law. Accordingly, Plaintiffs’ allegations that CBP regularly fails to abide by its

5 own policies fails to state a cognizable claim under the APA, and the Court will dismiss

6 Plaintiffs’ APA claim. Dismissal of the APA claim does not affect the Court’s findings

7 relevant to class certification.

8

Accordingly,

9

IT IS ORDERED that the Defendants’ Motion to Dismiss (Doc. 52) is granted in

10 part with respect to Plaintiffs’ APA claim, and denied in part with respect to Plaintiffs’

11 constitutional claims.

12

Dated this 11th day of January, 2016.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 4:15-cv-00250-DCB Document 124 Filed 01/28/16 Page 1 of 8

Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1 David J. Bodney (006065)

Ballard Spahr LLP

2 1 East Washington Street, Suite 2300

Phoenix, AZ 85004-2555 3 bodneyd@ballardspahr.com

4

Telephone: Facsimile:

602.798.5400 602.798.5595

5 Attorney for Intervenor 6 Phoenix Newspapers, Inc.

7

UNITED STATES DISTRICT COURT

8

DISTRICT OF ARIZONA

9 JANE DOE #1; JANE DOE #2; NORLAN ) NO. CV-15-00250-TUC-DCB

10 FLORES, on behalf of themselves and all others similarly situated,

) ) MOTION OF PHOENIX

11

) NEWSPAPERS, INC. TO

Plaintiffs,

) INTERVENE FOR THE LIMITED

12

) PURPOSE OF OPPOSING

vs. 13

) DEFENDANTS’ MOTION TO ) SEAL AND SECURING AN

14

Jeh Johnson, Secretary, United States Department of Homeland Security, in his

) ORDER TO UNSEAL COURT ) RECORDS

15

official capacity; R. Gil Kerlikowske, Commissioner, United States Customs &

) ) Class Action

16 Border Protection, in his official capacity;

)

Michael J. Fisher, Chief of the United States ) [Oral Argument Requested]

17 Border Patrol, in his official capacity; Jeffrey )

Self, Commander, Arizona Joint Field

)

18 Command, in his official capacity; Manuel )

Padilla, Jr., Chief Patrol Agent-Tucson Sector, )

19 in his official capacity,

)

20

Defendants.

) )

21

)

22

Pursuant to U.S. Const. amend. 1, Fed. R. Civ. P. 24, and binding Ninth

23 Circuit precedent, Phoenix Newspapers, Inc. (“PNI”), which publishes The Arizona

24 Republic and azcentral.com, respectfully moves to intervene for the limited purpose of

25 opposing Defendants’ Motion to Seal Documents (ECF 101) and securing an order to

26 unseal basic court records in this certified class action – more specifically, Plaintiffs’

27

28

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Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1 Motion for Preliminary Injunction and its accompanying Declarations and Exhibits (the

2 “Records”).
Preliminary Statement 3
PNI seeks leave to intervene in this case to protect the public’s right to 4
inspect court filings at the heart of an ongoing civil dispute of acute public concern. That 5
dispute involves serious allegations of inhumane and punitive conditions at U.S. Customs 6
and Border Protection facilities within the Tucson Sector of the Border Patrol. By this 7
Motion, PNI, as the largest-circulation daily newspaper in Arizona, submits that its 8
intervention will shed light on the substantial public interest in unsealing these Records. 9
Both in print and online, PNI has extensively covered and published news relating to 10
immigration and detention issues at the Arizona-Mexico border.1 Its ability not only to 11
monitor these court proceedings but also to cover the underlying issues of legitimate 12
concern is impaired by Defendants’ attempts to seal these Records from public view. 13
The public has a strong First Amendment and common-law right to inspect 14
civil court records and attend courtroom proceedings. See, e.g., NBC Subsidiary (KNBC15
TV) v. Superior Court, 980 P.2d 337 (Cal. 1999) (recognizing First Amendment right of 16
access to civil proceedings); San Jose Mercury News v. U.S. Dist. Court, 187 F.3d 1096 17
(9th Cir. 1999) (recognizing public’s common-law right of access to civil court records). 18
Here, the public has an undeniable interest in monitoring a civil case concerning (1) the 19
allegedly inhumane conditions experienced by civil border detainees lodged in 20
government facilities, and (2) whether such persons have the right to injunctive relief for 21

22 1 See, e.g., Daniel Gonzalez, Judge: Border Patrol destroyed videos of migrant detention
23 centers, azcentral.com (Sept. 30, 2015),

24 http://www.azcentral.com/story/news/politics/immigration/2015/09/30/judge-borderpatrol-destroyed-video-recordings-detention-migrants/73057752/ ; Bob Ortega, Border

25 Patrol sued over migrant detention conditions, azcentral.com (June 10, 2015),

26

http://www.azcentral.com/story/news/politics/immigration/2015/06/10/border-patrolsued-migrant-detention-conditions/71019826/ ; Michael Kiefer, First Peek: Immigrant

27 children flood detention center,

http://www.azcentral.com/story/news/politics/immigration/2014/06/18/arizona28 immigrant-children-holding-area-tour/10780449/

2
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Case 4:15-cv-00250-DCB Document 124 Filed 01/28/16 Page 3 of 8

Ballard Spahr LLP 1 East Washington Street, Suite 2300
Phoenix, AZ 85004-2555 Telephone: 602.798.5400

1 remediation of those conditions. Cf. Richmond Newspapers, Inc. v. Virginia, 448 U.S.

2 555, 572 (1980) (“People in an open society do not demand infallibility from their

3 institutions, but it is difficult for them to accept what they are prohibited from

4 observing.”). By contrast, Defendants provide no compelling reason why they should be

5 allowed to continue to litigate this action in secret, immune from public scrutiny. Cf.

6 Craig v. Harney, 331 U.S. 367, 374 (1947) (“A trial is a public event. What transpires in

7 the courtroom is public property.”). Accordingly, and for the reasons explained below,

8 PNI should be allowed to intervene for the limited purpose of opposing Defendants’

9 Motion to Seal Documents and secure an order unsealing the court records at issue as

10 promptly as possible.

11 I.

Argument PNI SHOULD BE PERMITTED TO INTERVENE FOR THE LIMITED

12

PURPOSE OF SECURING PUBLIC ACCESS TO THE RECORDS.

13

Rule 24(b) of the Federal Rules of Civil Procedure permits intervention to

14 anyone “who has a claim or defense that shares with the main action a common question

15 of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). News organizations are routinely permitted

16 to intervene in federal matters where a sealing order would restrict public access to court

17 proceedings and records. See, e.g., San Jose Mercury News, 187 F.3d at 1100–01

18 (reversing denial of newspaper’s motion to intervene to challenge protective order under

19 Rule 24); see also Press Enter. Co. v. Superior Court, 478, U.S. 1 (1986) (recognizing

20 newspaper’s standing to challenge sealing of criminal hearing transcript); Phoenix

21 Newspapers, Inc. v. U.S. Dist. Court, 156 F.3d 940 (9th Cir. 1998) (recognizing standing

22 for press to challenge closure).

23

Here, a sealing order undermines the public’s ability to monitor this case,

24 which addresses the issues of border security and humane governmental treatment of civil

25 border detainees, both of which are topics of public concern. See, e.g., Godbehere v.

26 Phoenix Newspapers, Inc., 783 P.2d 781, 789 (Ariz. 1989). Given PNI’s abiding interest

27 in reporting news to the public in general, and its demonstrable interest in reporting

28 information about these issues in particular, intervention should be permitted. See San

3
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Ballard Spahr LLP 1 East Washington Street, Suite 2300
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Case 4:15-cv-00250-DCB Document 124 Filed 01/28/16 Page 4 of 8
1 Jose Mercury News, 187 F.3d at 1103; cf. United States v. Loughner, 769 F. Supp. 2d
2 1188, 1189 (D. Ariz. 2011) (allowing intervention by media to advocate unsealing of
3 search warrants).
4 II. PNI AND THE PUBLIC HAVE A FIRST AMENDMENT AND COMMONLAW RIGHT OF ACCESS TO THESE RECORDS AND PROCEEDINGS.
5 The press and public have a general right to inspect and copy judicial
6 records and documents, including in civil cases. Kamakana v. City & Cnty. of Honolulu,
7 447 F.3d 1172, 1178 (9th Cir. 2006). That right, which has origins in both common law
8 and the First Amendment, “is ‘necessary to the enjoyment’ of the right to free speech.”
9 Courthouse News Serv. v. Planet, 750 F.3d 776, 786–87 (9th Cir. 2014) (quoting Globe
10 Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982)). Where a case does not
11 concern “traditionally secret” materials, such as grand-jury transcripts, “a strong
12 presumption in favor of access is the starting point.” Kamakana, 447 F.3d at 1178
13 (quotation marks and citations omitted); see also Mendez v. City of Gardena, No. 13-cv-
14 9042 (C.D. Cal. July 14, 2015) (granting request to unseal video depicting police
15 shooting during traffic stop).
16 The Ninth Circuit has recently clarified that where motions and
17 accompanying materials are “more than tangentially related to the underlying cause of
18 action,” a party must demonstrate “compelling reasons,” rather than merely “good
19 cause,” to seal the documents at issue. The Center for Auto Safety v. Chrysler Group,
20 LLC, No. 15-55084, at 20, filed Jan. 11, 2016, http://cdn.ca9.uscourts.gov/
21 datastore/opinions/2016/01/11/15-55084.pdf (reversing order applying “good cause”
22 standard to motion to unseal documents accompanying motion for preliminary
23 injunction). Even once a party has identified such reasons, the court must
24 “conscientiously balance[] the competing interests of the public and the party who seeks
25 to keep certain judicial records secret.” Kamakana, 447 F.3d at 1179 (quotation marks
26 and citations omitted). In general, ‘compelling reasons’ that could outweigh the public's
27
28
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Ballard Spahr LLP 1 East Washington Street, Suite 2300
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1 interest in disclosure and justify sealing court records are rare, found only when the files 2 could be used for some palpably improper purpose. Id.2

3

Here, Plaintiffs’ Motion for a Preliminary Injunction is “more than

4 tangentially related to the underlying cause of action,” because it directly touches upon

5 the ultimate merits of whether Plaintiffs will be entitled to final relief. Based on the

6 limited description of the declarations and exhibits at issue in the court file, PNI expects

7 that those documents will be used as prima facie evidence of the constitutional and

8 statutory violations alleged by Plaintiffs. Indeed, they seem directly related to the

9 underlying cause of action against these governmental Defendants. As a result,

10 Defendants must demonstrate “compelling reasons” to seal the documents at issue. No

11 such reasons exist.

12

Defendants have identified three purported justifications for sealing the

13 records at issue: (1) release of the photographs and videos would violate the privacy

14 rights of the depicted detainees; (2) release of certain documents would allow unsavory

15 individuals to escape from, gain access to, or otherwise manipulate Border Patrol

16 facilities; and (3) release of certain documents would impact the privacy rights of

17 identified Border Patrol agents. In Plaintiffs’ Opposition to Defendants’ Motion to Seal

18 (ECF No. 109), they represent that all identifying information that could implicate the

19 privacy rights of individual detainees, along with all data that could pose an imminent

20 threat to security conditions at the Border Facility and much of the data pertaining to

21 individual Border Patrol officers, has been redacted. See Dkt. No. 109, filed Jan. 4, 2016,

22 at 6–13. Because PNI does not yet have access to the redacted or unredacted versions of

23

24 2 In addition to recently clarifying the Kamikana standard, the Ninth Circuit has issued a Standing Order, effective February 1, 2016, that further reflects the Court’s concern for

25 judicial transparency. See Notice of the Court’s Adoption of the Following Standing

Order, Office of the Clerk, available at http://cdn.ca9.uscourts.gov/datastore

26 /general/2016/01/27/standing_order_re_sealed_excerpts.pdf. The new standing order

provides that excerpts of record may no longer be filed under seal in their entirety, and 27 that parties must instead file items they wish to designate as sealed in a separate volume.

28

The standing order also “clarifies its presumption that all hearings will be open to the public absent an express order from this Court to the contrary.” Id.

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Ballard Spahr LLP 1 East Washington Street, Suite 2300
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1 the documents at issue, it is not positioned to evaluate the relative merits of those claims.

2 Nonetheless, Plaintiffs appear to have made strong arguments that whatever concerns

3 Defendants have raised are mitigated if not satisfied entirely by way of redaction.

4

What Defendants cannot dispute is that this case presents a matter of public

5 concern in Arizona and indeed nationally because it involves the allegedly inhumane

6 conditions experienced by numerous civil border detainees who are or will be housed at a

7 Tucson Border Patrol Station. Ample case law documents the public’s strong interest in

8 monitoring civil cases that implicate the conduct of law enforcement. See, e.g.,

9 Godbehere, 162 Ariz. at 343, 783 P.2d at 789 (“It is difficult to conceive of an area of

10 greater public interest than law enforcement. Certainly the public has a legitimate

11 interest in the manner in which law enforcement officers perform their duties.”); Lissner

12 v. U.S. Customs Serv., 241 F.3d 1220, 1223 (9th Cir. 2001) (recognizing public interest in

13 Customs Service’s performance of official duties); Gregory v. City of Vallejo, No. 13-cv-

14 00320, 2014 WL 4187365, at *3–4 (E.D. Cal. Aug. 21, 2014) (denying motion to seal

15 police personnel records); Welsh v. City & Cty. of San Francisco, 887 F. Supp. 1293,

16 1302 (N.D. Cal. 1995) (disclosure proper because “[t]he public has a strong interest in

17 assessing the truthfulness of allegations of official misconduct” and “[m]isconduct by

18 individual officers, incompetent internal investigations, or questionable supervisory

19 practices must be exposed”); Soto v. City of Concord, 162 F.R.D. 603, 621 (N.D. Cal.

20 1995) (disclosure proper due to “strong public interest in uncovering civil rights

21 violations and enhancing public confidence in the justice system”). The public interest is

22 heightened here given the ongoing public debate about immigration and border security

23 in a presidential election year, and any redaction of these Records should err on the side

24 of openness and transparency.

25

The United States Supreme Court has long recognized that swift judicial

26 action is required when restriction of First Amendment rights is at issue. See Elrod v.

27 Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even

28 minimal periods of time, unquestionably constitutes irreparable injury.”) (citing New

6
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Ballard Spahr LLP 1 East Washington Street, Suite 2300
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1 York Times Co. v. United States, 403 U.S. 713 (1971)) (emphasis added); In re Charlotte 2 Observer, 882 F.2d 850, 856 (4th Cir. 1989) (holding that even “minimal delay” is

3 fundamentally at odds with First Amendment right of access); In re Cont’l Ill. Sec. Litig., 4 732 F. 2d 1302, 1310 (7th Cir. 1984) (the presumption of access normally involves “a

5 right of contemporaneous access”) (emphasis added). Based on the public record, it

6 seems these Defendants have gone to great lengths to conceal these Records, or at least to

7 delay and frustrate the public’s right of access to them, for as long as possible. The law

8 does not countenance such conduct, especially by government officials acting in their

9 official capacities.

10

Because Defendants fail to cite “compelling reasons” to justify sealing of

11 the materials at issue, Center for Auto Safety, at 20, and because the balancing of interests

12 favors PNI’s presumptive right to access materials of legitimate public concern, the Court

13 should grant PNI’s Motion, deny Defendants’ Motion to Seal Documents and unseal

14 these Records as expeditiously as possible.

15

Conclusion

16

For the foregoing reasons, PNI’s Motion for Leave to Intervene for the

17 Limited Purpose of Opposing Defendants’ Motion to Seal Documents and Securing an

18 Order to Unseal the Records should be granted, and Defendants’ Motion to Seal

19 Documents should be denied.

20

RESPECTFULLY SUBMITTED this 28th day of January, 2016.

21 BALLARD SPAHR LLP
22

23

By: s/ David J. Bodney

24

David J. Bodney

1 East Washington Street, Suite 2300

25

Phoenix, AZ 85004-2555

26 Attorney for Intervenor Phoenix Newspapers,

27

Inc.

28

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Ballard Spahr LLP 1 East Washington Street, Suite 2300
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1

CERTIFICATE OF SERVICE

2

I hereby certify that I electronically transmitted the attached document to

3

the clerk's office using the CM/ECF system for filing and transmittal of a notice of electronic filing to all CM/ECF registrants, and mailed a copy of same to any parties, if

4 non-registrants, this 28th day of January, 2016.

5

6

s/ Dawn Archambo

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Ballard Spahr LLP 1 East Washington Street, Suite 2300
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1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

DISTRICT OF ARIZONA

9 JANE DOE #1; JANE DOE #2; NORLAN ) NO. CV-15-00250-TUC-DCB

10 FLORES, on behalf of themselves and all

)

others similarly situated,

) ORDER

11

)

Plaintiffs,

)

12

)

vs.

)

13

)

14

Jeh Johnson, Secretary, United States Department of Homeland Security, in his

) )

15

official capacity; R. Gil Kerlikowske, Commissioner, United States Customs &

) )

16 Border Protection, in his official capacity;

)

Michael J. Fisher, Chief of the United States )

17 Border Patrol, in his official capacity; Jeffrey )

Self, Commander, Arizona Joint Field

)

18 Command, in his official capacity; Manuel )

Padilla, Jr., Chief Patrol Agent-Tucson Sector, )

19 in his official capacity,

)

20

Defendants.

) )

21

)

22

Phoenix Newspapers, Inc., (“PNI”) has filed a Motion to Intervene for the

23 Limited Purpose of Opposing Defendants’ Motion to Seal and Securing an Order to

24 Unseal Court Records (the “Motion”). Having considered PNI’s Motion, and good cause

25 appearing, therefor:

26

IT IS HEREBY ORDERED

27 1. PNI’s Motion is GRANTED;
28

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Ballard Spahr LLP 1 East Washington Street, Suite 2300
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1

2. This Court will issue a further Order lifting the seal on the

2 documents at issue and more specifically detailing the release of redacted records as

3 expeditiously as possible.

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2
DMWEST #13704831 v1

 
 Case 4:15-cv-00250-DCB Document 127 Filed 02/04/16 Page 1 of 3

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10

Plaintiffs,

ORDER

11 v.

12 Jeh Johnson, et al.,

13

Defendants.

14

15

On January 11, 2016, the Court certified Plaintiffs’ class as follows:

16

All individuals who are now or in the future will be detained for one or more

nights at a CBP facility within the Border Patrol’s Tucson Sector.

17 The Court also ordered Plaintiffs to “file an amended class definition more exactly

18 describing what ‘one or more nights’ means in the context of the operative class

19 definition.” (Order (Doc. 117) at 23:4-6) (emphasis added).

20 Pursuant to the Court’s Order, Plaintiffs submitted an amended class definition as

21 follows:

22 All individuals who are now or in the future will be detained in a Tucson Sector

23

Border Patrol facility except those released from Customs and Border Protection

custody within eight hours and on the same calendar day of admission into the

24

facility.

25

Plaintiffs submit this amended class definition addresses the Court’s concerns as

26 to the ambiguity of the term “one or more nights” because “it 1) eliminates the need to

27 determine when, exactly, a night begins and ends, 2) sets precisely the number of hours

28 an individual would have to be held to become a member of the class entitled to relief,

Case 4:15-cv-00250-DCB Document 127 Filed 02/04/16 Page 2 of 3

1 and 3) reasonably ties the temporal parameters of confinement to the various forms of

2 relief sought, including the provision of beds, bedding and various hygiene supplies.”

3 (Ps’ Amended Class Definition (Doc. 122) at 3.)

4

The Court did not intend to amend the class definition it approved on January 11,

5 2016, but only to define the term “one or more nights” as used in the class definition it

6 was approving. Defendants filed an Objection, which among other arguments, includes

7 an objection to this reworking of the class definition. The Court agrees and reaffirms its

8 previously approved class definition. The Court understands Plaintiffs’ proposed

9 amendment to define “one or more nights” as being more than 8 hours within the same

10 calendar day. With this clarification, the Court will afford Defendants an opportunity to

11 withdraw its Objection and refile it or, alternatively, rely on it. The Plaintiffs shall file a

12 Reply.

13

Accordingly,

14

IT IS ORDERED that the Plaintiffs’ proposed definition of “one or more nights”

15 is understood to mean “more than 8 hours within the same calendar day.”

16

IT IS FURTHER ORDERED that given this clarification of the class definition

17 being considered by the Court, the Defendants may withdraw the Objection (Doc. 125)

18 and refile an Objection, or alternatively rely on the already filed Objection (Doc. 125).

19

IT IS FURTHER ORDERED that within 7 days of the filing date of this Order,

20 the Defendants shall either withdraw and refile their Objection or not, and following

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27

28

- 2 -

Case 4:15-cv-00250-DCB Document 127 Filed 02/04/16 Page 3 of 3

1 Defendants’ action or inaction regarding their Objection, Plaintiffs shall have 7 days to

2 file a Reply.

3

Dated this 4th day of February, 2016.

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- 3 -

 
 Case 4:15-cv-00250-DCB Document 145 Filed 03/10/16 Page 1 of 26

1 Harold J. McElhinny* Kevin M. Coles*
2 Elizabeth Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105-2482
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: HMcElhinny@mofo.com Email: KColes@mofo.com
6 Email: EBalassone@mofo.com
7 Attorneys for Plaintiffs
8 *Admitted pursuant to Ariz. Sup. Ct. R. 38(a)
9 Additional counsel listed on signature page
10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13 Jane Doe # 1; Jane Doe # 2; and Norlan Flores, on behalf of themselves and all others
14 similarly situated

15

Plaintiffs,

Case No. 4:15-cv-00250-TUC-DCB
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

16

v.

CLASS ACTION

17 Jeh Johnson, Secretary, United States Department of Homeland Security, in his
18 official capacity; R. Gil Kerlikowske, Commissioner, United States Customs &
19 Border Protection, in his official capacity; Michael J. Fisher, Chief of the United States
20 Border Patrol, in his official capacity; Jeffrey Self, Commander, Arizona Joint Field
21 Command, in his official capacity; and Manuel Padilla, Jr., Chief Patrol Agent–
22 Tucson Sector, in his official capacity,

23

Defendants.

(Assigned to the Honorable David C. Bury)
Action Filed: June 8, 2015

24

25

26

27

28
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ. Case No. 4:15-cv-00250-TUC-DCB sf-3632337

Case 4:15-cv-00250-DCB Document 145 Filed 03/10/16 Page 2 of 26

1 Colette Reiner Mayer* MORRISON & FOERSTER LLP
2 755 Page Mill Road Palo Alto, CA 94304-1018
3 Telephone: (650) 813-5600 Facsimile: (650) 494-0792
4 Email: CRMayer@mofo.com
5

Travis Silva* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: TSilva@lccr.com

6 Louise C. Stoupe*

Pieter S. de Ganon*

Victoria Lopez (Bar No. 330042)**

7 MORRISON & FOERSTER LLP

Daniel J. Pochoda (Bar No. 021979)

Shin-Marunouchi Building, 29th Floor

James Duff Lyall (Bar No. 330045)**

8 5-1, Marunouchi 1-Chome

ACLU FOUNDATION OF ARIZONA

Tokyo, Chiyoda-ku 100-6529, Japan

3707 North 7th Street, Suite 235

9 Telephone: +81-3-3214-6522

Phoenix, AZ 85014

Facsimile: +81-3-3214-6512

Telephone: (602) 650-1854

10 Email: LStoupe@mofo.com

Facsimile: (602) 650-1376

Email: PdeGanon@mofo.com

Email: VLopez@acluaz.org

11

Email: DPochoda@acluaz.org

Email: JLyall@acluaz.org

12 Linton Joaquin*

Karen C. Tumlin*

13 Nora A. Preciado*

NATIONAL IMMIGRATION LAW

14 CENTER

3435 Wilshire Boulevard, Suite 2850

15 Los Angeles, CA 90010

Telephone: (213) 639-3900

16 Facsimile: (213) 639-3911

Email: Joaquin@nilc.org

17 Email: Tumlin@nilc.org

Email: Preciado@nilc.org

18

Mary Kenney*

19 Melissa Crow*

AMERICAN IMMIGRATION COUNCIL

20 1331 G Street NW, Suite 200

Washington, D.C. 20005

21 Telephone: (202) 507-7512

Facsimile: (202) 742-5619

22 Email: MKenney@immcouncil.org

Email: MCrow@immcouncil.org

23

24

25

26

27

28
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ. Case No. 4:15-cv-00250-TUC-DCB sf-3632337

Case 4:15-cv-00250-DCB Document 145 Filed 03/10/16 Page 3 of 26

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES ................................................................................................. ii

4 I. INTRODUCTION ...................................................................................................... 1

5 II. LEGAL STANDARD................................................................................................. 2

6

A. The Injunction Plaintiffs Seek is Prohibitory, Not Mandatory.........................2

7

B. Defendants Misstate The Fifth Amendment Due Process

Standard. ...........................................................................................................3

8

C. Defendants Are Legally Obligated To Provide Sleep, Warmth,

9

Sanitation, Medical Care, Food And Water......................................................4

10 III. ARGUMENT .............................................................................................................. 5

11

A. Defendants Fail To Rebut What They Do Not Already Concede. ...................5

12

1. Sleep.......................................................................................................6

13

2. Overcrowding ........................................................................................6

14

3. Hygiene ..................................................................................................7

15

4. Food .......................................................................................................9

16

5. Water....................................................................................................10

17

6. Medical Care........................................................................................10

18

7. Warmth ................................................................................................11

19

B. Defendants “Legitimate Operational Interests” Argument Fails. ...................12

20

C. Plaintiffs Are Likely To Suffer Irreparable Harm In The Absence

Of An Injunction. ............................................................................................14

21

D. The Public Interest And Balance of Hardships Supports An

22

Injunction To Ensure Constitutional Conditions Of Detention. .....................14

23

E. 8 U.S.C. § 1252(f)(1) Is Inapplicable And Does Not Preclude The

Relief Plaintiffs Seek. .....................................................................................15

24

IV. EVIDENTIARY OBJECTIONS .............................................................................. 16

25

V. CONCLUSION ......................................................................................................... 17

26

27

28

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

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1 2 3 CASES

TABLE OF AUTHORITIES

Page(s)

4 Am. Trucking Ass’ns, Inc. v. City of L.A.,

5

559 F.3d 1046 (9th Cir. 2009)............................................................................................. 14

6 Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001)............................................................................................... 15

7

Ariz. Dream Act Coal. v. Brewer,

8

757 F.3d 1053 (9th Cir. 2014)............................................................................................... 3

9 Bowers v. City of Phila.,

10

No. 06-Civ-3229, 2007 WL 219651 (E.D. Pa. Jan. 25, 2007)........................................ 15

11 DeShaney v. Winnebag Cty. Dep’t of Soc. Servs.,

12

489 U.S. 189 (1989) ............................................................................................................... 8

13 Golden Gate Rest. Ass’n v. City & Cty. of S.F., 512 F.3d 1112 (9th Cir. 2008), rev’d on other grounds,

14

546 F.3d 639 (9th Cir. 2008)................................................................................................. 2

15 Graves v. Arpaio,

16

48 F. Supp. 3d 1318 (D. Ariz. 2014).................................................................................... 4

17 Green v. Baron, 879 F.2d 305 (8th Cir. 1989)............................................................................................... 12
18

19

Hernandez v. Cty. of Monterey, 110 F. Supp. 3d 929.............................................................................................................. 15

20 Johnson v. Couturier,

21

572 F.3d 1067 (9th Cir. 2009)............................................................................................. 14

22 Jones v. Blanas,

23

393 F.3d 918 (9th Cir. 2004)................................................................................................. 1

24 Katie A., ex rel. Ludin v. L.A. Cty., 481 F.3d 1150 (9th Cir. 2007)............................................................................................... 3
25

26

Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) ........................................................................................................... 3

27 Lareau v. Manson,

28

651 F.2d 96 (2d Cir. 1981) .............................................................................................. 6, 12

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

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1 Madrid v. Gomez,

2

889 F. Supp. 1146 (N.D. Cal. 1995) .................................................................................... 4

3 McMahon v. Beard,

583 F.2d 172 (5th Cir. 1978)............................................................................................... 12

4

Melendres v. Arpaio,

5

695 F.3d 990 (9th Cir. 2012)............................................................................................... 14

6 Peralta v. Dillard,

7

744 F.3d 1076 (9th Cir. 2014),

cert. denied, 135 S. Ct. 946 (2015)..................................................................................... 12 8

9

Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) (en banc) ........................................................................... 16

10 Rodriguez v. Robbins,

11

715 F.3d 1127 (9th Cir. 2013)....................................................................................... 13, 15

12 Sierra OnLine, Inc. v. Phoenix Software, Inc.,

13

739 F.2d 1415 (9th Cir. 1984)............................................................................................... 3

14 Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979)............................................................................................... 13
15

16

Thompson v. City of L.A., 885 F.2d 1439 (9th Cir. 1989), overruled on other grounds by

17

Bull v. City & Cty. of S.F., 595 F.3d 964 (9th Cir. 2010) .................................................. 6

18 United States v. Martinez-Fuerte,

19

428 U.S. 543 (1976) ....................................................................................................... 14, 15

20 Vivid Entm’t, LLC v. Fielding, 965 F. Supp. 2d 1113 (C.D. Cal. 2013), aff’d, 774 F.3d 566 (9th Cir. 2014) ............... 14

21 STATUTES
22

23

8 U.S.C. §§ 1221-1231......................................................................................................................... 15

24

§ 1225 ..................................................................................................................................... 16

§ 1226 ..................................................................................................................................... 16

25

§ 1231 ..................................................................................................................................... 16

26

§ 1252(f)(1) ..................................................................................................................... 15, 16

27

28

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1 RULES

2 Fed. R. Evid.

3

Rule 602.................................................................................................................................. 16

Rule 701 ................................................................................................................................. 16

4

Rule 702(a), (b) ..................................................................................................................... 16

5

Rule 703 ................................................................................................................................. 16 Rule 802 ................................................................................................................................. 16

6 OTHER AUTHORITIES

7

Illegal Immigration Reform & Immigrant Responsibility Act of 1996 (IIRIRA),

8

Pub. L. No. 104–208, 110 Stat. 3009 (1996) .......................................................................... 15

9 U.S. Const. art. VI, cl. 3............................................................................................................... 7 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

I. INTRODUCTION

2

Defendants do not dispute that the Fifth Amendment prohibits them from depriving

3 detainees of sleep, warmth, sanitation, medical care, food, and water. They do not dispute,

4 nor can they, that the Fifth Amendment obligates them “to do more than provide the ‘minimal

5 civilized measure of life’s necessities.’” Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004)

6 (citation omitted). Defendants nonetheless argue that their “mission,” their so-called 7 “operational reality,” gives them a free pass. Defendants are mistaken. Government entities

8 tasked with difficult and unpredictable missions—prisons, jails, police precincts—must abide

9 by the Constitution, and so must Defendants.

10

Plaintiffs’ evidence in support of their motion for a preliminary injunction

11 unequivocally demonstrates that Defendants routinely and systematically mistreat those in

12 their care. Defendants and their experts do not, because they cannot, refute or rebut any of

13 Plaintiffs’ photographs depicting overcrowded and filthy cells, ubiquitous floor sleeping, and

14 detainees wrapped in flimsy Mylar sheets, huddled together for warmth. Confronted with

15 their own documented failure to provide adequate and regular food, Defendants disavow the

16 accuracy and integrity of their own e3DM data. (Declaration of Justin Bristow (“Bristow 17 Decl.”) ¶¶ 11-12, ECF No. 142-7.) This is an astonishing representation coming from

18 Defendants, who not long ago argued to this very Court that their e3DM data was

19 comprehensive and could adequately substitute for the video footage they destroyed. (Opp’n

20 to Mot. for Sanctions at 8 & n.4, 16, ECF No. 60.)

21

Faced with irrefutable evidence of degrading, punitive, and unconstitutional

22 conditions, Defendants contend that the remedy Plaintiffs seek will have a “substantial impact

23 on the ability of Border Patrol to continue its twenty-four hour operations.” (Opp’n to Mot. 24 for Prelim. Inj. at 3, ECF No. 133.) But aside from beds, lighting, and showers, Defendants

25 do not even argue, much less demonstrate, that an injunction will have any impact whatsoever

26

27

28

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1 on their operations.1 To the contrary, Defendants claim that they already provide, or can

2 provide, most of the relief Plaintiffs seek.

3

Defendants’ “operational interests” argument is, ultimately, a chimera. Scratch the

4 surface and it is apparent that Defendants’ concern is predominantly fiscal. It is the

5 purportedly “permanent and expensive changes” and “sunk costs” that Defendants bemoan.

6 (Id. at 1-2.) These concerns do not carry the day: As the Ninth Circuit has held on a motion

7 for preliminary injunction, deprivation of constitutional rights cannot be justified by cries of

8 fiscal necessity. Golden Gate Rest. Ass’n v. City & Cty. of S.F., 512 F.3d 1112, 1126 (9th

9 Cir. 2008) (citation omitted), rev’d on other grounds, 546 F.3d 639 (9th Cir. 2008).

10

Plaintiffs are not impinging in any way on how Defendants perform their statutory

11 mandate. Defendants may continue to detain and process immigrant detainees. But what

12 Defendants may not do is punish them. If Defendants detain an immigrant for over eight

13 hours in a calendar day, they are obligated to provide minimum, constitutional care while that

14 immigrant is in their custody. This Court should grant the preliminary injunction to ensure

15 that Defendants comply with this obligation.

16

II. LEGAL STANDARD

17

A. The Injunction Plaintiffs Seek is Prohibitory, Not Mandatory.

18

Defendants claim that the injunction Plaintiffs seek is mandatory. (Opp’n to Mot. for

19 Prelim. Inj. at 4-5.) They claim that Plaintiffs ask “the Court to rule on the ultimate factual

20 and legal issue in this case.” (Id. at 4.) This mischaracterizes the injunction and the relief

21 sought.

22

23

1 Moreover, with respect to beds, neither of Defendants’ Border Patrol witnesses—

Assistant Chief George Allen and Justin Bristow—even mentions beds, much less discusses

24 the impact that providing them would have on operations. (See Declaration of George Allen

(“Allen Decl.”), ECF No. 133-2; Bristow Decl.) Without some evidentiary support,

25 Defendants’ arguments carry no weight. With respect to lighting and showers, Assistant

Chief Allen makes the conclusory statement that dimming the lights and providing showers

26 would slow down processing—although he provides no details in support of this view.

(Allen Decl. ¶¶ 33, 47.) But this in itself is not a reasonable objection. Providing food to

27 detainees surely interferes with operations and slows down processing, but Defendants do not

claim that meals are unnecessary.

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1

While the parties litigate, real people suffer in Border Patrol stations. Plaintiffs seek

2 only to enjoin Defendants from depriving detainees of their constitutional due process rights

3 during the pendency of this action. Defendants concede that under their own policies and

4 procedures, they have an obligation as well as the ability to provide detainees with adequate

5 sleep, food, water, warmth, medical care, and sanitation. (See infra Section III.) This is the

6 status quo that a prohibitory preliminary injunction is meant to preserve while the parties

7 litigate. Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1060-61 (9th Cir. 2014) (“[T]he

8 ‘status quo’ refers to the legally relevant relationship between the parties before the

9 controversy arose.”). Thus the preliminary injunction that Plaintiffs seek is properly intended

10 to “prevent[] the irreparable loss of rights before judgment,” not to litigate the merits. Sierra

11 OnLine, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) (emphasis

12 added). But even if this Court finds that the injunction is mandatory, because Plaintiffs have

13 shown a “strong likelihood” of success on the merits, they have met “the heightened burden

14 required for issuance of a mandatory preliminary injunction.” Katie A., ex rel. Ludin v. L.A.

15 Cty., 481 F.3d 1150, 1157 (9th Cir. 2007).

16

B. Defendants Misstate the Fifth Amendment Due Process Standard.

17

Defendants claim that Plaintiffs “must establish” that the conditions in the Tucson

18 Sector stations “are punitive, and bear no reasonable relationship to the legitimate operational

19 interests of Border Patrol.” (Opp’n to Mot. for Prelim. Inj. at 5.) This mischaracterizes

20 applicable law. In order to establish a due process violation, a civil detainee can prevail by

21 providing “proof of intent (or motive) to punish” or “objective evidence that the challenged

22 governmental action is not rationally related to a legitimate governmental objective or that it

23 is excessive in relation to that purpose.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74

24 (2015) (emphasis added). Defendants erroneously attempt to run from the disjunctive and fail

25 altogether to mention the third prong.

26

27

28

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1

C. Defendants Are Legally Obligated to Provide Sleep, Warmth,

Sanitation, Medical Care, Food and Water.

2

3

Defendants do not dispute that detainees have a substantive due process right to

4 warmth (Opp’n to Mot. for Prelim. Inj. at 10), sanitation (id. at 17), as well as food and water

5 (id. at 21). Nor do Defendants dispute their obligation to conduct medical screening on

6 intake; but they take issue with Plaintiffs’ request that medically-trained personnel conduct

7 the screening. (Id. at 14.) Defendants argue that Graves v. Arpaio, 48 F. Supp. 3d 1318 (D.

8 Ariz. 2014) and Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), on which Plaintiffs

9 rely, are inapplicable because they address screening in long-term facilities, not short-term

10 facilities. (Opp’n to Mot. for Prelim. Inj. at 13-14.) As Plaintiffs’ expert Eldon Vail stresses,

11 however, the Tucson Sector facilities are not, in fact, “short-term”: because detainees are held

12 for 72 hours or more, these facilities are more akin to jails than other holding or processing

13 facilities. (Declaration of Eldon Vail in Support of Reply Mot. for Prelim. Inj. (“Vail Reply

14 Decl.”) ¶¶ 3-7.) Moreover, Defendants’ argument ignores a fundamental purpose of medical

15 screening—protecting other detainees (not to mention Border Patrol agents) from

16 communicable disease, which can spread regardless of the duration of confinement.

17 (Declaration of Joe Goldenson, M.D. in Support of Reply Mot. for Prelim. Inj. (“Goldenson

18 Reply Decl.”) ¶ 6.) See Madrid, 889 F. Supp. at 1257 (“The facility should screen newly

19 arrived inmates . . . [in a manner] sufficient to protect other inmates from infectious 20 diseases.”).2 Finally, Defendants are resoundingly silent about sleep (id. at 24-25), but the

21 cases are clear that floor sleeping, ubiquitous in Border Patrol stations, violates due process

22 (Mot. for Prelim. Inj. at 10, ECF No. 76 [Sealed Lodged] (citing cases).)

23

24

2 The danger of communicable disease was highlighted in the Office of Inspector

General’s July 30, 2014 report entitled “Oversight of Unaccompanied Alien Children

25 [UAC].” This report concludes: “Many UAC and family units require treatment for

communicable diseases, including respiratory illnesses, tuberculosis, chicken pox, and

26 scabies.” (Declaration of Kevin Coles in Support of Mot. for Expedited Discovery, Ex. O

at 2, ECF No. 26-1.) The report further states that “DHS employees reported exposure to

27 communicable diseases and becoming sick on duty.” (Id. at 3.) Nogales was one of the

stations inspected. (Id. at Attachment 1.)

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1

III. ARGUMENT

2

A. Defendants Fail to Rebut What They Do Not Already Concede.

3

Plaintiffs’ evidence—over 50 declarations from former detainees,3 over 75 inspection

4 photographs, over 70 still images selected from many hundreds of hours of video

5 surveillance, and Defendants’ own e3DM data—demonstrates beyond the shadow of a doubt

6 that due process violations abound. Defendants fail to refute any of it.

7

They fail to refute photographs of overcrowded, filthy hold rooms; of detainees

8 huddled under Mylar sheets shielding their eyes from the constant light and their bodies from

9 the constant cold; of piles of trash, feces-soiled paper, and diapers. They fail to refute their

10 own e3DM data, which substantiates the statements by numerous former detainees that they

11 were provided sporadic and inadequate meals. They do not even try to refute the fact that

12 detainees are forced to sleep, for days at a time, on packed concrete floors and concrete

13 benches.

14

Instead, Defendants mechanically recite their TEDS standards,4 as if policy

15 demonstrated practice; they claim Plaintiffs’ declarations are hearsay, while conceding that

16 written declarations are permissible on a motion for a preliminary injunction (Opp’n to Mot.

17 for Prelim. Inj. at 11 n.9); and they otherwise take pot shots at Plaintiffs’ evidence, at

18 detainees’ culture, and—remarkably—at their own e3DM data. After telling this Court that

19 they “themselves fully intend to use all available footage to show that conditions . . . fully

20 comply with the requirements of the Constitution” (Opp’n to Mot. for Sanctions at 7 n.3),

21

22

3 These declarations, which testify to “the widespread and deplorable conditions in the

23 holding cells at Border Patrol stations,” easily outweigh the testimony of two Border Patrol agents and their paid experts “regarding CBP’s policies.” (See Order re Plaintiffs’ Mot. to

24 Enforce Settlement of Class Action & Defendants’ Mot. to Amend Settlement Agreement, Flores v. Johnson, No. 2:85-cv-04544-DMG-AGR (E.D. Cal. July 24, 2015), ECF No. 177.)

25

4 Defendants admit that Border Patrol hold rooms are “unique” (Declaration of Diane

Skipworth (“Skipworth Decl.”) ¶ 40, ECF No. 133-4), while elsewhere claiming that they are

26 just like “intake, hold room, and booking areas of jails and detention centers around the

nation” (Declaration of Richard Bryce (“Bryce Decl.”) ¶¶ 31, 34-35, ECF No. 140-5). The

27 crucial difference is that police stations and booking facilities hold people for a few hours, not

overnight or even for a few days. (Vail Reply Decl. ¶¶ 3-7.)

28

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1 Defendants use none of it—presumably because it undermines the inspections they staged for 2 “experts” on their payroll.5

3

1. Sleep

4

Defendants concede that they provide no beds; or, to use their euphemism, “traditional

5 sleeping accommodations.” (Opp’n to Mot. for Prelim. Inj. at 2, 24; Answer to Complaint

6 (“Answer”) ¶¶ 4, 98, ECF No. 143.) They concede that hold rooms are only “equipped with

7 benches to sit on until they are transported to another facility or processed” (Bryce Decl.

8 ¶ 104 (emphasis added)), which can take 72 hours or more (Allen Decl. ¶ 10). They concede

9 that lights are on twenty-four hours a day, seven days a week (Opp’n to Mot. for Prelim. Inj.

10 at 25; Answer ¶ 4), and that detainees are disturbed throughout the night because of detainee

11 intake, processing, and the inexplicable 4 a.m. meal (Allen Decl. ¶¶ 38, 45). Defendants do

12 not dispute that, as a result of these practices, floor-sleeping is ubiquitous. Defendants, in 13 other words, do not dispute that Plaintiffs are deprived of sleep—sometimes for days on end.6

14 Yet somehow, Defendants conclude that “Border Patrol does not deprive detainees of any due

15 process right to sleep.” (Opp’n to Mot. for Prelim. Inj. at 24.) This conclusion should be

16 given no credence: the Constitution requires beds and mattresses “without regard to the

17 number of days a prisoner is so confined.” Lareau v. Manson, 651 F.2d 96, 105 (2d Cir.

18 1981); accord Thompson v. City of L.A., 885 F.2d 1439, 1448 (9th Cir. 1989), overruled on

19 other grounds by Bull v. City & Cty. of S.F. (9th Cir. 2010).

20

2. Overcrowding

21

Despite video stills depicting detainees packed head to toe, Defendants rely on

22 Mr. Bryce’s opinion to deny that hold rooms are “regularly overcrowded.” (Opp’n to Mot.

23

5 Ms. Skipworth admits that she is currently on the Department of Homeland

24 Security’s payroll, and has been since 2011. (Skipworth Decl. ¶ 5.)

6 Defendants’ medical expert opines that “any lack of full alertness” due to lack of 25 sleep does not harm detainees because they are not “driv[ing], operat[ing] machinery, etc.”

(Declaration of Philip Harber (“Harber Decl.”) ¶ 65, ECF No. 140-9.) But as Defendants 26 concede, detainees are questioned about their criminal and immigration history (Opp’n to

Mot. For Prelim. Inj. at 1, 7)—the answers to which can determine conclusively whether they 27 will be removed, imprisoned, or granted asylum. The government appears to have no qualms

about questioning sleep-deprived detainees if doing so assists its efforts to deport them. 28

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1 for Prelim. Inj. at 17-18.) But this is only a defense if the government may violate

2 constitutional due process rights sometimes. It may not. See U.S. Const. art. VI, cl. 3 (“[A]ll

3 executive . . . Officers . . . of the United States . . . shall be bound by Oath or Affirmation, to

4 support this Constitution.”). Moreover, the factual basis for Mr. Bryce’s opinion is unsound.

5 Mr. Bryce relies on “data, interviews of Border Patrol leadership, and inspection of Tucson

6 Sector facilities.” (Bryce Decl. ¶ 37.) But Mr. Bryce fails to explain what this data is and

7 why it’s reliable. He fails to explain how a one-day inspection would allow him to conclude

8 that hold rooms are not “regularly overcrowded.” (Vail Reply Decl. ¶¶ 13, 15.) And he fails

9 to explain how statements by Border Patrol leadership refute Plaintiffs’ photographic

10 evidence of detainees sitting or lying on every inch of bench and floor (Declaration of Kevin

11 M. Coles in Support of Mot. for Prelim. Inj. (“Coles Decl.”) ¶¶ 35–36, ECF No. 76 [Sealed

12 Lodged]—a level of demonstrably severe overcrowding that Defendants attempt, absurdly, to

13 characterize as de minimis (Opp’n to Mot. for Prelim. Inj. at 17). Finally, Defendants fail

14 entirely to address Plaintiffs’ argument that overcrowding has negative spillover effects on

15 sleep, hygiene, and temperature. (Vail Decl. ¶¶ 47–51.) In fact, they concede it. (Skipworth

16 Decl. ¶ 73 (noting that detainee to toilet ratios could exceed ACA standards if hold rooms

17 filled to capacity).)

18

3. Hygiene

19

To explain away Plaintiffs’ footage depicting filthy, trash-strewn cells, Defendants’

20 experts respond with service contracts, statements by Border Patrol agents, and attacks on

21 detainees’ “culture.” None of it helps Defendants’ case.

22

Service contracts—which were not presented to the Court or even produced to

23 Plaintiffs despite this Court’s Order (Declaration of Kevin M. Coles in Support of Reply Mot.

24 for Prelim. Inj. (“Coles Reply Decl.”) ¶¶ 2-3.)—are evidence of policy, not practice. And it is

25 certainly not the case, logically or factually, that “the statements of work found in these

26 contracts are sufficient to ensure adequate sanitation of the hold rooms in Tucson Sector.”

27 (Skipworth Decl. ¶ 27.) For neither expert observed anyone cleaning, or observed what hold

28 rooms looked like in the days before and after they inspected. (Skipworth Decl. ¶¶ 36-60;

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1 Harber Decl. ¶¶ 60-62.) In contrast, Plaintiffs did observe hold rooms that went uncleaned

2 for 48 hours. (Coles Decl. ¶ 41.) Without evidence that the service contracts are actually

3 implemented, entirely missing here, the contracts prove nothing. (Declaration of Robert W.

4 Powitz in Support of Reply Mot. for Prelim. Inj. (“Powitz Reply Decl.”) ¶ 10.)

5

Having failed to observe any cleaning, both experts assure this Court that Border

6 Patrol agents “confirmed that hold rooms are cleaned” regularly. (Skipworth Decl. ¶ 48;

7 accord Harber Decl. ¶ 62.) But such self-serving hearsay from unidentified agents does

8 nothing to controvert Plaintiffs’ photographs depicting accumulated trash and filth in hold

9 cells throughout the Tucson Sector.

10

Lacking evidence that hold rooms are clean (or cleaned), Defendants blame the

11 victims. According to Assistant Chief Allen, while “Border Patrol has a cleaning contract 12 and trash receptacles7 in the hold room, some social challenges among detainees have to be

13 overcome daily.” (Allen Decl. ¶ 32.) These “social challenges,” he later makes clear, are

14 detainees’ “countries/cultures.” (Id.) Likewise, Ms. Skipworth blames filthy hold rooms on

15 detainees’ “cultural problem[s],” which, she continues condescendingly, “can be remedied

16 through educating detainees on proper hygiene practices in the United States.” (Skipworth

17 Decl. ¶ 53.) Putting aside that neither Assistant Chief Allen nor Ms. Skipworth has

18 demonstrated any expertise in the cultures about which they opine, detainees’ purportedly

19 improper hygiene practices do not absolve Defendants of their duty to ensure that cells are

20 clean, safe, and hygienic. See DeShaney v. Winnebag Cty. Dep’t of Soc. Servs., 489 U.S. 189,

21 200 (1989) (the obligation to provide for basic human needs falls on the jailer, not the jailed).

22

23

24

25

7 Flatly contradicting Assistant Chief Allen, Chief Patrol Agent Padilla states that

“[t]here are no trashcans in the hold rooms for safety reasons.” (Declaration of Manuel

26 Padilla, Jr., Opp’n to Mot. for Expedited Discovery ¶ 14, ECF No. 39-1.) Defendants’

inability to keep their story straight suggests their willingness to bend the facts to their

27 defense or to change what is “operationally feasible” when it is expedient for them to do so.

(Allen Decl. ¶ 31.)

28

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1

4. Food

2

Plaintiffs argue, based on analyzing several months of Defendants’ e3DM data, that

3 Defendants fail to feed detainees, sometimes for over 24 hours at a time, and what they do

4 feed them—burritos, crackers, and juice three times a day for days—is not nutritionally

5 adequate. (Mot. for Prelim. Inj. at 17.) In response, Defendants first assert that they spent

6 $387,000 on food in 2015. (Opp’n to Mot. for Prelim. Inj. at 23.) So what? Defendants’

7 contextually unmoored food budget is not proof that they feed detainees regularly or that the

8 food they provide is nutritionally adequate.

9

Defendants’ second response is simply astonishing. Unable to explain their own

10 e3DM data, Defendants are compelled to impeach it: “E3DM . . . was not designed to show

11 or provide a comprehensive historical analysis of an alien’s detention history [and] was not

12 designed to capture every single action that may correspond to an alien [and] was not

13 designed to capture an aggregate picture of food-related statistics.” (Bristow Decl. ¶¶ 11-12,

14 17.)

15

But this is the very same data Defendants told this Court was comprehensive and could

16 adequately substitute for the video footage Defendants destroyed: “[O]ther evidence also

17 exists to support or dispute Plaintiffs[’] claims. This includes records such as the e3DM

18 system, in which agents log actions taken concerning particular aliens in custody such as

19 meal times, medical care, and whether showers were provided.” (Opp’n to Mot. for Sanctions

20 at 8 (emphasis added); see also id. n.4 (citing additional information logged in the e3DM).) It

21 is also the very same data on which Defendants themselves rely to establish the length of time

22 class members spend in custody. (Bristow Decl. ¶¶ 19-21.) Defendants cannot have it both

23 ways. If Defendants use e3DM data to support their case, so too may Plaintiffs.

24

Defendants’ strategic attempt to impeach their e3DM data backfires for another

25 reason. While confirming that “[a]ll meal service must be documented in the appropriate

26 electronic system(s) of record” (Skipworth Decl. ¶ 92), Defendants confess that their agents

27 routinely fail to do so (Bristow Decl. ¶¶ 11–12, 17). This confession calls into question much

28 of Defendants’ evidentiary submission. Throughout their brief, Defendants cite their

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1 policies—the TEDS standards in particular—as evidence that their agents undertake certain

2 actions. But as the e3DM example shows, Defendants are aware that agents regularly deviate

3 from policy requirements.

4

5. Water

5

Defendants argue that Plaintiffs’ evidence of malfunctioning bubblers, of hold rooms

6 with water but no clean cups, and of detainees forced to share a water jug should be

7 discounted “in the face of significant evidence to the contrary.” (Opp’n to Mot. for Prelim.

8 Inj. at 24.) But the only evidence Defendants offer is conclusory statements by their experts

9 that when they inspected Tucson Sector stations, potable water was available. (Id.) And

10 aside from Mr. Bryce’s statement that he “found no issues” with the bubblers (Bryce Decl.

11 ¶ 46), Defendants offer nothing—no photos, no video, nothing—that demonstrates this

12 statement is true. The best that Defendants can do is to present a transparently contrived

13 photo entitled “Hold room in Nogales,” which depicts a five-gallon jug, paper cups, juice

14 boxes, and mats, neatly arranged on a wooden bench in a clean hold room. (Bryce Decl.,

15 Attachment C at 1.) Defendants’ response falls flat.

16

6. Medical Care

17

Defendants proffer no evidence that they medically screen; that they are able to

18 respond to medical emergencies; or that they provide detainees with a substitute for the

19 medicine they routinely confiscate from detainees. (Opp’n to Mot. for. Prelim. Inj. at 13-17.)

20 Instead, here, as elsewhere, Defendants cite their TEDS standards as if they establish a

21 constitutional baseline for minimally acceptable conditions in their detention facilities (they

22 do not), and as if the mere existence of those standards demonstrated that Defendants operate

23 their facilities in a constitutional manner. (Id. at 14-15.) Defendants rely on their TEDS

24 standards despite their steadfast denial that the TEDS standards constitute a mandatory policy

25 that their agents must follow. (Mot. to Dismiss at 6, ECF No. 52.) And they do so without

26 presenting any evidence that the TEDS standards are, in fact, implemented.

27

For example, Defendants claim that “Border Patrol provides detainees with access to

28 medical care . . . in a manner that is constitutionally sufficient.” (Opp’n to Mot. for Prelim.

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1 Inj. at 14.) As proof, Defendants cite the TEDS standards and Dr. Harber’s declaration. (See

2 id. at 14-15.) But Dr. Harber doesn’t actually know whether the TEDS standards are

3 implemented; during his inspection of but two stations, he saw no one being treated. (Harber

4 Decl. ¶¶ 29-37; see also Declaration of Joe Goldenson, M.D., in Support of Reply Mot. for

5 Prelim. Inj. (“Goldenson Reply Decl.”) ¶¶ 4-5.) No wonder, then, that Dr. Harber does little

6 more than say that the policies are adequate. (Harber Decl. ¶ 55.) No wonder, then, that he

7 bases his “knowledge” on unsworn, hearsay statements made by Border Patrol officials. (Id.

8 ¶ 34.)

9

7. Warmth

10

Defendants concede that they strip people of outer clothing. (Skipworth Decl. ¶ 142.)

11 They concede that detainees “may sometimes find that [hold room] temperatures feel cooler

12 than they are accustomed to.” (Opp’n to Mot. for Prelim. Inj. at 10 n.8.) They concede that

13 temperatures in hold rooms can reach a bone-chilling 58.8 degrees Fahrenheit, but blame it on

14 an anomalous cooling system malfunction. (Id. at 12 n.11; Allen Decl. ¶ 17.)

15

Defendants focus almost exclusively on temperature logs and measurements to suggest

16 that detainees are provided with adequate warmth. (Opp’n to Motion for Prelim. Inj. at 10-

17 12.) Nowhere do they acknowledge that detainees are often kept for days in hold rooms so

18 crowded that physical activity is virtually impossible. Defendants effectively force detainees

19 to remain sedentary on concrete benches and floors—without extra layers of clothing, or

20 proper blankets or adequate nutrition—leaving them with little ability to generate or conserve

21 body heat. (Vail Reply Decl. ¶ 9.) Defendants entirely ignore ample video evidence of

22 detainees huddled together through the night to stave off the cold; and they ignore the fact

23 that nearly every detainee who has provided a sworn declaration in this case has complained

24 of cold.

25

Defendants throw up their hands and claim that they are incapable of changing the

26 temperature. (Opp’n to Mot. for Prelim. Inj. at 12 n.12; Skipworth Decl. ¶¶ 135, 145.)

27 Defendants then blame detainees for not reporting when they are cold (Skipworth Decl.

28 ¶ 144), as if it were not clearly apparent from the way they huddle together under thin Mylar

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1 sheets. Despite the overwhelming evidence that these sheets do little to keep detainees warm,

2 Defendants stand by this as an acceptable solution. Notably, Defendants previously provided

3 blankets, but discontinued doing so only because of problems with one vendor. (Allen Decl.

4 ¶ 19.) They could again provide blankets, in addition to remedying the temperature issues.

5 (Vail Reply Decl. ¶ 9.) They simply choose not to.

6

B. Defendants “Legitimate Operational Interests” Argument Fails.

7

Defendants attempt to justify the punitive, unconstitutional conditions in Tucson

8 Sector stations by claiming that these are in some unspecified way connected to government

9 interests of security, “effective management,” and cost. (Opp.’n to Mot. for Prelim. Inj. at 6,

10 26-27.) This argument fails.

11

First, Plaintiffs are aware of no case that supports the proposition that it is

12 constitutionally acceptable to detain pretrial detainees or prisoners without providing them

13 with a bed and mattress, except for the specific purpose of “behavior modification” or where

14 a prisoner is demonstrably suicidal. Thus, limited bedding may be acceptable for mentally ill

15 patients who are “argumentative, defiant, and basically ungovernable.” Green v. Baron, 16 879 F.2d 305, 307, 309–310 (8th Cir. 1989).8 No bedding, or limited bedding, may also be

17 acceptable where the prisoner has previously tried to commit suicide using bedsheets.

18 McMahon v. Beard, 583 F.2d 172, 175 (5th Cir. 1978). In all other instances, regardless of

19 the proffered governmental interest, a bed or a mattress is always required—a point that

20 Defendants do not even try to contest. Lareau, 651 F.2d at 105.

21

Second, when constitutional rights are at issue, cost is not a legitimate government

22 interest. Plaintiffs made this point in their moving brief (Mot. for Prelim. Inj. at 23), and

23 Defendants have cited no case—not one—in rebuttal. Here, the law is clear: “Lack of

24 resources is not a defense to a claim for prospective relief because prison officials may be

25 compelled to expand the pool of existing resources in order to remedy continuing Eighth

26
8 Even here, however, staff provided the committed individual with “bedding when 27 they believed he was cold”—a consideration Defendants have not shown Plaintiffs. Green,
879 F.2d at 310. 28

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

12

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1 Amendment violations.” Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014), cert.

2 denied, 135 S. Ct. 946 (2015); Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979) (“The

3 cost or inconvenience of providing adequate facilities is not a defense to the imposition of a

4 cruel punishment.”). Thus, the cost of installing showers or providing beds is not a legitimate

5 reason for Defendants to subject Plaintiffs to unconstitutional conditions of confinement.

6

Third, while it is not entirely clear what, exactly, Defendants mean by “effective

7 management,” they appear to mean delay. (Opp’n to Mot. for Prelim. Inj. at 21, 24-25

8 (providing showers, beds, and dimmed lights will slow detainee processing).) If so, they have

9 articulated no reason why providing soap, toilet paper, clean cells, toothbrushes, toothpaste,

10 feminine hygiene products, diapers, baby wipes, formula, baby food, potable water, paper

11 cups, warmth (or clothing), nutritionally adequate meals, or medical screening will interfere

12 with “effective management.”

13

As to showers, beds, and dimmed lights, Defendants misstate Plaintiffs’ remedy.

14 Defendants argue that providing showers, beds, and dimmed lights will “slow the processing

15 of every individual.” (Id. at 21 (emphasis added).) No it won’t, because Plaintiffs do not ask

16 that every detainee be given a shower, a bed, or dimmed lights to sleep, but only those

17 detained for more than eight hours in a calendar day. Even if this minimal burden were to

18 cause the government “severe logistical difficulties,” which it would not, these difficulties

19 “would merely represent the burdens of complying with . . . the Constitution.” Rodriguez v.

20 Robbins, 715 F.3d 1127, 1146 (9th Cir. 2013).

21

Fourth and last, Defendants’ appeals to “security” are without merit. Beds and

22 showers bear no reasonable relationship to security—or, if they do, Defendants have failed

23 either to articulate what that relationship might be or provide any evidence in support. (See

24 note 1, supra.) As to lighting, Defendants merely declare that darkened hold cells would

25 create safety risks. They do not explain why, nor are they entitled to rely on fear-mongering

26 or on images of detainees as “criminals” in darkened cells. (See Opp’n to Mot. for Prelim.

27 Inj. at 5 n.5 (falsely tarring all detainees as criminals).)

28

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

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1

C. Plaintiffs Are Likely to Suffer Irreparable Harm in the Absence of

an Injunction.

2 Defendants’ evidentiary argument—that Plaintiffs’ case is founded on hearsay

3 statements alone—is utterly without merit. (Id. at 26.) Not only does it ignore the experts’

4 inspections, photographs, video footage, and e3DM data produced by Plaintiffs, but as

5 Defendants concede, hearsay evidence is admissible. (Id. at 11 n.9.) See also Johnson v.

6 Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (“[Defendants] object in particular to the

7 district court's reliance on the interested declaration of Plaintiffs' counsel and unverified client

8 complaints. A district court may, however, consider hearsay in deciding whether to issue a

9 preliminary injunction.”). There can be no question that individuals are harmed when they

10 are deprived of sleep, adequate food and water, and warmth—even for a few days.

11 Defendants, moreover, cite no cases to rebut established Ninth Circuit law holding that “the

12 deprivation of constitutional rights unquestionably constitutes irreparable injury.”

13 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012); Am. Trucking Ass’ns, Inc. v. City of

14 L.A., 559 F.3d 1046, 1059 (9th Cir. 2009) (citations omitted) (“[C]onstitutional violations

15 cannot be adequately remedied through damages and therefore generally constitute

16 irreparable harm.”). By depriving Plaintiffs of life’s basic necessities—sleep, warmth, access

17 to sufficient and adequate food and water, medical screening and care, and a sanitary

18 environment—Defendants violate Plaintiffs’ constitutional rights and cause irreparable harm.

19

D. The Public Interest and Balance of Hardships Support an Injunction

20

to Ensure Constitutional Conditions of Detention

21

Public interest considerations also weigh in favor of Plaintiffs. Indeed, “[o]nce a

22 Plaintiff shows that a constitutional rights claim is likely to succeed, the remaining

23 preliminary injunction factors weigh in favor of granting an injunction.” Vivid Entm’t,

24 LLC v. Fielding, 965 F. Supp. 2d 1113, 1136 (C.D. Cal. 2013), aff’d, 774 F.3d 566 (9th Cir.

25 2014). The Ninth Circuit has held that “‘it is always in the public interest to prevent the

26 violation of a party’s constitutional rights.’” Melendres, 695 F.3d at 1002 (quoting

27 Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002)) (emphasis added).

28 Defendants’ citation to United States v. Martinez-Fuerte, 428 U.S. 543 (1976)—a Fourth

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

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1 Amendment case—for the proposition that the Court must “balanc[e] the interests at stake” in

2 an entirely different context is thus inapplicable. Id. at 556.

3

The balance of hardships also favors Plaintiffs. The government “cannot suffer harm

4 from an injunction that merely ends an unlawful practice or reads a statute as required to

5 avoid constitutional concerns.” Rodriguez, 715 F.3d at 1145. Defendants, moreover, cite no

6 cases supporting their statement that the relief that Plaintiffs seek is too burdensome to be

7 permissible on a preliminary injunction motion—especially since most of the remedies

8 Plaintiffs seek Defendants say they already provide. (Opp.’n to Mot. for Prelim. Inj. at 28,

9 passim.) In fact, courts have granted injunctive relief in similar contexts. See Bowers v. City

10 of Phila., No. 06-Civ-3229, 2007 WL 219651, at *28 (E.D. Pa. Jan. 25, 2007) (holding

11 “denial of constitutional rights” to be a “far greater” cost than “the cost associated with

12 providing conditions of detentions that pass constitutional muster”); Hernandez v. Cty. of

13 Monterey, 110 F. Supp. 3d 929, 959 (N.D. Cal. 2015) (ordering defendants to implement an

14 adequate “tuberculosis identification, control and treatment program” despite cost concerns).

15

E. 8 U.S.C. § 1252(f)(1) Is Inapplicable and Does Not Preclude the

Relief Plaintiffs Seek.

16

17

Defendants argue that 8 U.S.C. § 1252(f)(1) precludes class-wide injunctive relief.

18 (Opp.’n to Mot. for Prelim. Inj. at 28.) Enacted as part of the Illegal Immigration Reform and

19 Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104–208, 110 Stat. 3009 (1996),

20 8 U.S.C. § 1252(f)(1) prohibits courts from enjoining sections 231 to 241 of the Immigration

21 and Nationality Act (INA), 8 U.S.C. §§ 1221-1231. Defendants misconstrue the nature of the

22 relief that Plaintiffs seek, arguing that §1252(f)(i) “precludes this Court from ordering Border

23 Patrol to release individuals held in its custody on a class-wide basis.” (Opp’n to Mot. for

24 Prelim. Inj. at 27.) Plaintiffs do not seek to have detainees released prior to the completion of

25 the immigration process, either as set forth in the INA or as required by Defendants.

26 Plaintiffs only ask that detainees be provided with minimum, constitutional care.

27

Courts have made clear that IIRIRA’s jurisdictional restrictions must be narrowly

28 interpreted and limited to their express language. See, e.g., Andreiu v. Ashcroft, 253 F.3d

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

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1 477, 481 (9th Cir. 2001); Rodriguez v. Hayes, 591 F.3d 1105, 1118-120 (9th Cir. 2010) (en

2 banc). Plaintiffs do not seek to restrain any provisions of the INA. Instead, they allege

3 violations of their constitutional rights and seek injunctive relief to ensure that Defendants

4 comply with constitutional requirements in enforcing the nation’s immigration laws.

5

Courts routinely allow class actions seeking injunctive relief when the class seeks to

6 enjoin unlawful conduct not authorized by the INA sections specified in section 1252(f)(1).

7 See, e.g., Rodriguez, 591 F.3d at 1121 (finding section1252(f)(1) did not bar class-wide

8 injunctive relief where members did “not seek to enjoin the operation of Part IV provisions”

9 but rather “to enjoin conduct alleged not to be authorized by the proper operation of Part IV

10 provisions”). The unlawful conduct at issue here—unconstitutional conditions of

11 confinement—is not authorized by any relevant section of the INA. See 8 U.S.C. §§ 1225,

12 1226, 1231. Accordingly, section 1252(f)(1) is inapplicable.

13

IV. EVIDENTIARY OBJECTIONS

14

Plaintiffs object to certain of Defendants’ expert testimony. The following opinions

15 are based on vague references to documents, data, or interviews with unidentified individuals

16 that were never produced to Plaintiffs and never presented as evidence to the Court. This

17 testimony should be excluded because it lacks foundation (Federal Rule of Evidence (“FRE”)

18 702(b)), is not based on facts or data reasonably relied upon by experts in their fields (FRE

19 703), and constitutes hearsay (FRE 802): Bryce Decl. ¶¶ 52, 57-60, 78, 79, 92, 107, 114-119;

20 Harber Decl. ¶¶ 21, 25, 31, 35-37, 48, 57-58, 63, 64; Skipworth Decl. ¶¶ 46-48, 67, 77, 85,

21 90, 95-100, 122, 131, 158-162; Bristow Decl. ¶¶ 19, 20, 21.

22

Additionally, the following statements include broad conclusions about Border

23 Patrol’s actual practices based on text from policy documents or one-time station inspections.

24 The testimony should be excluded because it is not based on personal knowledge (FRE 602),

25 not rationally based on the witness’s perception (FRE 701), and is neither based on sufficient

26 facts or data nor helpful to the trier of fact (FRE 702(a), (b)): Bryce Decl. ¶¶ 57-60, 92, 107,

27 114-119; Harber Decl. ¶¶ 21, 25, 31, 36, 48, 63; Skipworth Decl. ¶¶ 46-48, 85, 96-100, 122,

28 159, 161, 162; Bristow Decl. ¶¶ 19, 20, 21.

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

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1

V. CONCLUSION

2

For the foregoing reasons, this Court should grant a preliminary injunction.

3 Dated: March 10, 2016
4

By: /s/ Harold J. McElhinny

5

Harold J. McElhinny*

Kevin M. Coles*

6

Elizabeth Balassone*

7

MORRISON & FOERSTER LLP

425 Market Street

8

San Francisco, CA 94105-2482

Telephone: (415) 268-7000

9

Facsimile: (415) 268-7522

10

Email: HMcElhinny@mofo.com

Email: KColes@mofo.com

11

12

Colette Reiner Mayer*

MORRISON & FOERSTER LLP

13

755 Page Mill Road

Palo Alto, CA 94304-1018

14

Telephone: (650) 813-5600

15

Facsimile: (650) 494-0792

Email: CRMayer@mofo.com

16

17

Louise C. Stoupe*

Pieter S. de Ganon*

18

MORRISON & FOERSTER LLP

Shin-Marunouchi Building, 29th Floor

19

5-1, Marunouchi 1-Chome

20

Tokyo, Chiyoda-ku 100-6529, Japan

Telephone: +81-3-3214-6522

21

Facsimile: +81-3-3214-6512

22

Email: LStoupe@mofo.com Email: PdeGanon@mofo.com

23

24

25

26

27

28

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

17

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1

Linton Joaquin*

2

Karen C. Tumlin* Nora A. Preciado*

3

NATIONAL IMMIGRATION LAW CENTER

3435 Wilshire Boulevard, Suite 2850

4

Los Angeles, CA 90010

5

Telephone: (213) 639-3900

Facsimile: (213) 639-3911

6

Email: Joaquin@nilc.org

7

Email: Tumlin@nilc.org Email: Preciado@nilc.org

8

Mary Kenney*

9

Melissa Crow*

10

AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200

11

Washington, DC 20005

12

Telephone: (202) 507-7512 Facsimile: (202) 742-5619

13

Email: MKenney@immcouncil.org

Email: MCrow@immcouncil.org 14

15

Victoria Lopez (Bar No. 330042)**

Daniel J. Pochoda (Bar No. 021979)

16

James Duff Lyall (Bar No. 330045)**

17

ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235

18

Phoenix, AZ 85014

Telephone: (602) 650-1854

19

Facsimile: (602) 650-1376

20

Email: VLopez@acluaz.org

Email: DPochoda@acluaz.org

21

Email: JLyall@acluaz.org

22

23

24

25

26

27

28

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

18

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1

Travis Silva*

2

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

3

OF THE SAN FRANCISCO BAY AREA

131 Steuart Street, Suite 400

4

San Francisco, CA 94105

5

Telephone: (415) 543-9444 Facsimile: (415) 543-0296

6

Email: TSilva@lccr.com

7 Attorneys for Plaintiffs
8

9

*Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

**Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIM. INJ.

19

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 10th day of March, 2016, I caused a PDF version of the

3 documents listed below to be electronically transmitted to the Clerk of the Court, using the CM/ECF System for filing and for transmittal of a Notice of Electronic Filing to all CM/ECF

4 registrants and non-registered parties.

5 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY 6 INJUNCTION

7 DECLARATION OF KEVIN M. COLES IN SUPPORT OF PLAINTIFFS’ REPLY IN 8 SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (with exhibits)

9 DECLARATION OF JOE GOLDENSON, M.D. IN SUPPORT OF PLAINTIFFS’ 10 REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

11 DECLARATION OF ROBERT W. POWITZ IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
12
13 DECLARATION OF ELDON VAIL IN SUPPORT OF PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (with exhibits)
14

15

16

17

Harold J. McElhinny

(typed)

18

/s/ Harold J. McElhinny (signature)

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

1

Case No. 4:15-cv-00250-TUC-DCB

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 Case 4:15-cv-00250-DCB Document 173 Filed 06/27/16 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Unknown Parties, et al.,
Plaintiffs, v.
Jeh Johnson, et al.,
Defendants.

Case No. 4:15-cv-00250-TUC-DCB ORDER AMENDING CLASS DEFINITION
CLASS ACTION
(Assigned to the Honorable David C. Bury) Action Filed: June 8, 2015

The Court, having considered the parties’ Joint Stipulation Regarding Class Definition, and finding good cause appears,
IT IS ORDERED that pursuant to the Joint Stipulation (Doc. 163) and the authority under Federal Rule of Civil Procedure 23(c)(1)(C), as follows:
The Court’s January 11, 2016 Order certifying a plaintiff class in Jane Doe #1, et a ///// ///// /////

Case 4:15-cv-00250-DCB Document 173 Filed 06/27/16 Page 2 of 2
al. v. Johnson, et al., case no. 4:15-cv-00250-DCB (ECF No. 117), IS HEREBY AMENDED to re-define the certified class under Rule 23(b)(2) as:
All individuals who are now or in the future will be detained at a CBP facility within the Border Patrol’s Tucson Sector.
Dated this 27th day of June, 2016.

 
 Case 4:15-cv-00250-DCB Document 186 Filed 07/21/16 Page 1 of 8

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10

Plaintiffs,

ORDER

11 v.

12 Jeh Johnson, et al.,

13

Defendants.

14

15

On June 21, 2016, Defendants filed a Motion for a Protective Order pursuant to

16 Federal Rule of Civil Procedure, Rule 26(b)(2)(C) and (c)(1). Defendants claim privilege 17 in respect to three of the 33 topics noticed by Plaintiffs for deposition inquiries. 18 Defendants object, pursuant to the deliberative process privilege, to the following topics

19 of inquiry:

20

1. The U.S. Border Patrol’s “Consequence Delivery System,” or “CDS,”

Including but not limited to the factors considered, rationales behind,

21

purposes of, policy-making process, and oral and written communications

regarding this system.

22

2. The factors considered, rationales behind, purposes of, and policymaking

23

process for the determination of “Duration of Detention: Whenever

possible, a detainee should not be held for more than 12 hours” as stated in

24

Section 6.2 of the “Hold Rooms and Short Term Custody,” in Defendants’

production of documents, Bates number USA000325, including but not

25

limited to the oral and written communications regarding this

determination.

26

3. The factors considered, rationales behind, purposes of, and policymaking

27

process for the determination of “Duration of Detention: Detainees

should generally not be held for longer than 72 hours in CBP hold rooms or

28

holding facilities” as stated in Section 4.1 of the “U.S. Customs and Border

Protection National Standards on Transport, Escort, Detention, and

Case 4:15-cv-00250-DCB Document 186 Filed 07/21/16 Page 2 of 8

1

Search,” in Defendants’ production of documents, Bates number

USA000631, including but not limited to the oral and written

2

communications regarding this determination.

3 (Motion for Protective Order (Doc. 162) at 2-3.)

4 Defendants argue that each topic of inquiry requires a different witness, which
5 places an undue burden on the Defendants given the subject matter is not discoverable
6 because it is covered by the deliberative process privilege. And, part of topic one is
7 simply not relevant to the parties’ claims and defenses. Fed. R. Civ. P. 26(b)(1)
8 (describing scope of discovery to allow inquiry into any nonprivileged matter that is
9 relevant to any party’s claim or defense and is proportional to the needs of the case). In
10 other words, Defendants should not have to produce witnesses only to discuss privileged
11 material, especially if it is not relevant.
12 Federal Rule of Civil Procedure, Rule 26(b) was amended in 2015 to clarify that
13 the scope of discovery is confined by relevancy to the “parties’ claims and defenses” by
14 deleting the often incorrectly used phrase, “reasonably calculated to lead to the discovery
15 of admissible evidence” and the unnecessary provision allowing a court, for good cause,
16 to authorize “discovery of any matter relevant to the subject matter involved in the
17 action.” The former phrase was never meant to define the scope of discovery because it
18 would swallow any other limitation. The latter phrase is not necessary to allow the courts
19 to authorize discovery of inadmissible evidence which is relevant to the parties’ claims
20 and defenses. Fed. R. Civ. P. 26(b)(1), Advisory Committee Notes: 2015 Amendment.
21 The first inquiry must be relevancy, which Defendants concede in respect to
22 Topics 2 and 3. (Motion for Protective Order (Doc. 162)). In the Reply, Defendants
23 expressly admit they concede to the relevancy of Topics 2 and 3, but for the first time
24 frame the concession as “could be” relevant and suggest as to Topics 2 and 3 the
25 potentially relevant information would be post-decisional application of the policies.
26 Post-decisional information is not covered by the deliberative process privilege.
27 Defendants’ suggestion that Topic 2 and 3 deposition questions should be limited to “this
28 potentially relevant and non-privileged material” was raised for the first time in the

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Case 4:15-cv-00250-DCB Document 186 Filed 07/21/16 Page 3 of 8

1 Reply. (Reply (Doc. 175) at 4-5.) Plaintiffs have had no opportunity to respond. The

2 Court rejects an argument raised for the first time in a Reply.

3

Topic 1: Relevancy of the CDS

4

The Plaintiffs explain that the CDS is an overarching system used by Border

5 Patrol “to apply consequences to [keep] subjects from attempting further illegal entries or

6 participating in a smuggling enterprise. . . .” The consequences appear to be either

7 criminal or administrative immigration proceedings, whichever will be the most effective

8 and efficient way to achieve the desired border security results. Defendants contend:

9 “CDS thus relates purely to the immigration and criminal processing of individuals who

10 illegally enter the United States, and has no effect or impact on the conditions any

11 individual may experience at Tucson Sector Border Patrol facilities.” (Motion for

12 Protective Order (Doc. 162) at 8.)

13

Plaintiffs have alleged the following:

14

CBP policies and practices, including the agency’s “Consequence Delivery

System” (“CDS”), guarantee that large numbers of detainees will be forced

15

to spend multiple nights in inhumane and degrading conditions. For

example, consistent with the agency’s CDS policy, Border Patrol screens

16

Tucson Sector detainees for referral to “Operation Streamline” proceedings,

in which dozens of individuals enter guilty pleas on federal unauthorized

17

entry charges in a single hearing. In Tucson, these proceedings are held

every weekday afternoon. Thus, any individual who is apprehended on a

18

Friday and referred for Operation Streamline proceedings will spend a

minimum of three nights in Border Patrol custody, while individuals

19

detained during a weekend will spend at least one and often two nights in

custody, prior to referral for a Monday hearing. In Tucson, thousands of

20

individuals are referred for these proceedings annually.

21 (Complaint (Doc. 1) ¶ 96.)

22

Plaintiffs have alleged a link between Topic 1, the CDS, and the 72 hour minimum

23 stay in place in 2015, which is the subject of Topic 3 as compared to the 12 hour

24 maximum stay in place in 2008 which is the subject of Topic 2. Plaintiffs assure the

25 Court they will not inquire into matters “completely unrelated to detention conditions.”

26 (Response (Doc. 174) at 8.) They propose legitimate questions would ask whether the

27 consequences applied by CDS relate to or affect the length of detention, whether the

28

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Case 4:15-cv-00250-DCB Document 186 Filed 07/21/16 Page 4 of 8

1 amount of time and number of individuals being detained were considered in establishing

2 the CDS, and what were the reasons for establishing the CDS. Id. at 9.

3

Plaintiffs argue these inquiries are relevant to disprove the defense raised by

4 Defendant that for the Plaintiffs to prevail, they must establish that the conditions in the

5 BP facilities are punitive and bear no reasonable relationship to the legitimate operational

6 interests of BP. Defendants argue that conditions of confinement are based on various

7 legitimate operational reasons or operational interests, and Plaintiffs respond that they,

8 therefore, need discovery related to what those operational reasons or interests are to

9 show that the conditions of confinement are inflicted with the intent to punish and are

10 excessively harsh in relation to any legitimate purpose. These questions will allow

11 Plaintiffs to determine whether legitimate operational purposes could be accomplished

12 through alternative methods consistent with the Constitution. Id. at 9.

13

In reply, the Defendants argue that Plaintiffs merely proffer a hypothetical theory

14 of BP polices that have no effect or impact on the conditions of confinement and fail to

15 explain, even if CDS as a policy had an effect on the length of detention, how that would

16 be anything other than incidental to immigration processing or whether conditions are

17 punitive relative to the amount of time the individual is subjected to those conditions.

18 (Reply (Doc. 175) at 3.)

19

The Court agrees with the Defendants that Plaintiffs have not challenged the CDS

20 policy, but the questions the Plaintiffs propose inquire into how the CDS policy affects or

21 impacts the conditions of detention experienced by Plaintiffs because the harshness of the

22 conditions depends on the duration of the detention. This is not a fishing expedition as

23 long as the inquiry is so limited. Topics 1 through 3 are relevant as proposed.

24 Topics 2 and 3, and the Majority of Topic 1, Are Exempt From Discovery Because The Information Sought is Protected By The Deliberative Process Privilege.
25

26

Federal common law recognizes a deliberative process privilege on the ground

27 that officials will not communicate candidly among themselves if each remark could be

28 subject to discovery. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S.

- 4 -

Case 4:15-cv-00250-DCB Document 186 Filed 07/21/16 Page 5 of 8

1 1, 8 (2001). It shields disclosure of inter and intra-governmental communications relating

2 to decision-making matters of law or policy. Then, the privilege applies to information if

3 it meets two threshold requirements: 1) the document must be predecisional and 2) it

4 must be deliberative in nature, containing opinions, recommendations, or advice about

5 agency policies.” F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).

6

The Court begins with the threshold determination that the CDS and the 12/72

7 hour-maximum durations for detention implicate agency policymaking. Neither side

8 asserts otherwise.

9

The privilege protects “documents ‘reflecting advisory opinions, recommendations

10 and deliberations comprising part of a process by which governmental decisions and

11 polices are formulated.’” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)

12 (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.

13 1966)). Generally, factual information is not privileged, but in the Ninth Circuit, even

14 factual material can be protected by the privilege where revealing it would be tantamount

15 to publishing the agency’s evaluation and analysis. Nat’l Wildlife Fed’n v. U.S. Forest

16 Serv., 861 F.2d 1114, 1119 (9th Cir. 1988) (discussing deliberative process privilege and

17 adopting test that is “process-oriented” or “functional” and noting that even factual

18 materials are exempt from disclosure to the extent that they reveal the mental processes

19 of decision-makers).

20

The rationale for the privilege is to protect frank and open discussions within

21 governmental agencies, which might be “chilled” if the personal opinions and ideas of

22 government personnel involved in the decision-making process were subject to public

23 scrutiny. Greenpeace v. National Marine Fisheries Service, 198 F.R.D. 540, 543 (Wash.

24 2000) (citations omitted). It is narrowly construed, meaning it protects information

25 actually related to the process by which policy-makers formulated a policy—only those

26 materials which bear on the formulation or exercise of agency policy-oriented judgment.

27 Id.

28

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Case 4:15-cv-00250-DCB Document 186 Filed 07/21/16 Page 6 of 8

1

The privilege is not absolute; therefore, the Court must determine whether the

2 need for the evidence overrides the government’s interest in non-disclosure, including

3 cases where the agency’s decision-making process is itself at issue. Id. at 543 (citations

4 omitted). To decide whether the qualified deliberative process privilege should be

5 overcome, a court may consider the relevancy of the evidence, the availability of other

6 evidence, the government's role in the litigation, and the extent to which disclosure would

7 hinder frank and independent discussion regarding contemplated policies and decisions. 8 F.T.C. v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The Court

9 may also consider the interest of the litigant, and ultimately society, in accurate judicial

10 fact finding, the seriousness of the issues involved in the litigation, the presence of issues

11 involving alleged governmental misconduct, and the federal interest in the enforcement

12 of federal law. United States v. Irvin, 127 F.R.D. 169, 173 (Calif. 1989).

13

The burden of establishing the applicability of the privilege is on the government,

14 which requires it to show that documents fall within the claim of privilege, and that it has

15 complied with formal procedures necessary to invoke the privilege. Procedurally, the

16 deliberative process must be invoked by an agency head, or his delegate, having control

17 over the requested document, after having personally reviewed the documents for which

18 the privilege is asserted. (Response (Doc. 174) at 3) (citations omitted); Alpha I , ex rel.

19 Sands v. United States, 83 Fed. Cl. 279, 289 (Fed. Cl. 2008). The party seeking the

20 protection must state with particularity the information that is subject to the privilege. Id.

21 at 5; In ex rel. Sands, 83 Fed. Cl. at 289. Therefore, “[b]lanket assertions of privilege are

22 insufficient.” Greenpeace, 198 F.R.D. at 545 (quoting Exon Corp. v. Dept. of Energy,

23 91 F.R.D. 26, 43 (Texas 1981)). Finally, the agency must give precise and certain

24 reasons for maintaining the confidentiality of the requested documents. In ex. Rel. Sands,

25 83 Fed. Cl. at 289 (citations omitted). Therefore, “without indicating any specific,

26 policy-oriented communication nor proffering any cogent reason for protecting it,” bare

27 assertions that internal agency discussions will be “chilled” is nothing but a legal

28 platitude asserted in the abstract. Greenpeace, 198 F.R.D. at 545.

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Case 4:15-cv-00250-DCB Document 186 Filed 07/21/16 Page 7 of 8

1

Generally the privilege is invoked to protect documents, but courts have applied it

2 to testimony as well and have made no distinction between the two. North Pacifica LLC

3 v. City of Pacifica, 274 F. Supp.2d 1118, 1121 n. 1 (Calif. 2003).

4

In the context of deposition questions, the deliberative process privilege will attach

5 to communications containing opinions, recommendations, or advice that were part of the

6 deliberative process preceding the adoption and promulgation of three specific policies:

7 the CDS, the 12 and 72 hour maximum duration for detention. The Government admits

8 it’s motion fails procedurally, “[b]ut this is, in large part, due to the fact that Plaintiffs

9 have declined to clarify or provide any examples of question they might ask under these

10 Topics. Thus, Defendants are left with the broadly stated Topics in Plaintiffs’ Notice

11 which, as written, seek discovery of the pre-decisional deliberative process that led to the

12 polices at issue in those topics.” (Reply (Doc. 175) at 4.) Defendants complain that

13 Plaintiffs failed to “‘describe with reasonable particularity the matters for examination.’”

14 Id. at 2 (quoting Fed. R. Civ. P. 30(b)(6)). This argument suggests the Plaintiffs’ Notice

15 fails the Rule 30(b) requirement “to provide enough information for Defendants to ensure

16 that the right witnesses, with the right knowledge, are present and prepared to testify.”

17 Id.

18

In part, the Defendants’ assertion that Plaintiffs’ Rule 30(b)(6) Notice is overly

19 broad is linked to Defendants’ blanket assertion of the deliberative process privilege.

20 Plaintiffs’ Notice identifies each policy topic with particularity: CDS; 12 hour maximum

21 duration for detention; 72 hour maximum duration for detention. Identifying the agency

22 head(s) having knowledge of the deliberative processes related to each of these identified

23 policies will go a long way in satisfying Defendants’ obligations under Rule 30(b) to

24 identify the right witnesses to testify and at the same time begins to address the

25 procedural requirements necessary to invoke the deliberative process privilege.

26

To the extent the Plaintiffs seek written documents, the Defendants have no

27 excuse for procedural non-compliance or for failing to prepare a privilege log with the

28 specificity necessary prevail on the merits of its assertions of privilege.

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Case 4:15-cv-00250-DCB Document 186 Filed 07/21/16 Page 8 of 8

1

In the context of the un-asked deposition questions: “No determination can be

2 made about the applicability of the privilege until the privilege is asserted in response to

3 specific questions at the deposition.” E.E.O.C v. Burlington Northern & Santa Fe Ry.

4 Co., 621 F. Supp.2d 603, 608 n. 3 (Tenn. 2009). The Motion for a Protective Order is

5 premature. Alpha IL.P. ex rel. Sands v. United States, 83 Fed. Cl. 279, 290 (Fed Cl

6 2008).

7

The rationale for requiring an agency head or official to whom authority has been

8 carefully delegated to invoke the privilege is to allow those officials with expertise in the

9 nature of the subject matter of the privilege claim and the information requested, rather

10 than counsel, to make the determination whether the public interest in confidentiality

11 outweighs the public interest in disclosure. Id. at 288-289. Simply put, Defendants must

12 identify someone who is capable of establishing what deliberative process was involved

13 in the adoption of each of the three policies and the role played by the contested evidence

14 in the course of that process. Subsequent to the depositions, Defendants must satisfy the

15 procedural and substantive requirements for asserting the privilege, and should provide

16 for the Court’s en camera review of any questions that elicit the privilege assertion and

17 the proposed responses the witnesses would have provided if the privilege had not been

18 asserted.

19

Accordingly,

20

IT IS ORDERED that the Motion for Protective Order (Doc. 162) is DENIED,

21 without prejudice to reurging it subsequent to the depositions.

22

Dated this 21st day of July, 2016.

23

24

25

26

27

28

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 Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 1 of 13

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10

Plaintiffs,

ORDER

11 v.

12 Jeh Johnson, et al.,

13

Defendants.

14

15

16

On June 27, 2016, the Court ruled in part on two motions to partially seal

17 documents and briefs related to Plaintiffs’ Motion for Preliminary Injunction. The Court

18 called for supplemental briefing on Defendants’ assertion that exhibits should be sealed

19 or redacted for security and law enforcement reasons. That briefing has now been

20 completed. Defendants withdraw several of their previously requested redactions of

21 Declarations filed by Plaintiffs in support of the Motion for Preliminary Injunction. As

22 for the remainder of exhibits, Defendants offer four security reasons to seal or partially

23 redact them, which include that the exhibits: 1) deal with physical security of Border

24 Patrol facilities; 2) deal with holding capacity of facilities; 3) concern Border Patrol’s 25 e3DM1 system, and 4) pertain to Border Patrol’s internal medical, booking, and

26 detention, processing procedures and standards. Plaintiffs respond that the supplemental

27 explanations remain too generalized to establish compelling reasons for sealing this

28 1 Detention Module 3e.

Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 2 of 13

1 information, apart from two: 1) Border Patrol blueprints/schematics (Ex. 117) and 2)

2 release of camera numbers and locations (Exs. 79, 80, and 88). Plaintiffs withdraw their

3 objection to sealing these documents. Below the Court considers the remainder of the

4 exhibits pursuant to each of the four asserted reasons for sealing or redacting them.

5

1. Physical Security of Border Patrol Facilities

6

First, Defendants argue that unsealing documents that deal with the physical

7 security of Border Patrol facilities, including building blueprints, construction

8 schematics, and security camera angles will compromise the operational security of the

9 facilities by providing criminal elements with critical information regarding optimal

10 means for exploiting potential site vulnerabilities which can be used to facilitate the

11 escape of detained individuals, to harm agents, or harm detainees who intend to cooperate

12 with law enforcement authorities, and to also reveal access to station armories and seized

13 contraband, rendering security and enforcement interests vulnerable to criminal elements

14 wishing to recover contraband or harm agents. The Defendants provide the Declaration

15 of George Allen, the Assistant Chief Patrol Agent, Tucson Sector, who oversees the

16 Prosecution Program, including asset forfeiture and seized property, and the Processing

17 and Transportation Programs.

18

Exhibit 6 is a picture of a janitor’s closet, which includes a schematic drawing

19 posted on one of the walls. In the hard-copy picture the details in the schematic are

20 undiscernible but because these pictures will be filed electronically, the Court cannot say

21 that with computer software the schematic might be made clear-enough to actually

22 discern specific details regarding the layout of the Border Patrol facility. The Court finds

23 the redaction, which omits the schematic, is not of significant public concern to offset the

24 possible security risk. The Court approves the Defendants’ proposed redaction of Exhibit

25 6.

26

Exhibit 17 is a picture of a toilet. The Court finds no compelling reason for

27 sealing this document.

28

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 3 of 13

1

Exhibit 48 is a picture of four thermostats on the wall, with part of a security panel

2 showing a security feed. The Court finds that there is no sensitive security information

3 revealed in the hard-copy picture because the picture’s screens are so small that the

4 subject matter of the screens is obscured. But, the Court cannot say that with computer

5 software the security feed pictures might be enlarged and depending on what they reveal,

6 security might be compromised. The Court finds the redaction, to omit the security

7 screen, is not of significant public concern to offset the possibility of a security risk. The

8 Court approves the Defendants’ proposed redaction of Exhibit 48.

9

Exhibit 81 is Appendix 8.10: Hold Rooms to the CBP Security, Policy, and

10 Procedures Handbook. A contraband copy has been posted online by a public right to

11 access advocacy group. The Court agrees with Valerie Lee-Lloyd’s assessment that

12 disclosures in this Appendix of standards for wall and roof construction methods and for

13 security barrier placement and emergency power systems pose a security risk if criminal

14 elements sought to exploit physical vulnerabilities to stage a breakout or access a facility

15 to rob it of guns or contraband. (D’s Supplemental Brief, Lee-Lloyd Decl. (Doc. 183-1)

16 ¶¶ 8-20). While this information is already in the public domain so the horse may already

17 be out of the barn, the Court does not intend to compound the problem by opening the

18 yard gate—it will not publish this information in its record, especially, since the

19 information is neither a public concern nor central to this case. Cell dimensions and other

20 relevant details which can be gleaned from exhibit 81 are readily available from other

21 exhibits. The Court will grant Defendants’ motion to seal exhibit 81.

22

Exhibit 98 is “simply a set of instructions for how to view security camera

23 footage,” but the instructions reflect how many cameras are being used, where cameras

24 are mounted, and the breadth of their coverage. The Court finds the redactions of this

25 limited information is not of significant public concern to offset the security risk which

26 exists if criminal elements obtained information of where security dead-zones or

27 weaknesses might exist in the facility. The Court approves the Defendants’ proposed

28

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 4 of 13

1 redaction of Exhibit 98. The Court intends that declarations which reveal camera

2 numbers and locations also be redacted. See below Coles Decl.

3

Exhibits 147, 167, 170-72, 186-87 are pictures from security cameras, which are

4 primarily of the holding cells and a few are of storage rooms and interview rooms. The

5 Defendants assert that taken together they could reveal staffing patterns, dead-zones in

6 surveillance, and where guns and contraband are located in the facility. The Court does

7 not see how that is true, but in an abundance of caution the Court will allow Defendants

8 to redact the pictures of storage areas, hallways, etc., which are not holding areas and to

9 which detainees do not have access. The Court questions their relevancy; these pictures

10 are not central to the case or of a public concern. The Court will not order these

11 documents sealed, but will allow Defendants to redact the individual security pictures

12 from this footage that are not relevant to the issues which are central to this case.

13

Plaintiffs’ Motion for Preliminary Injunction includes pictures of overcrowded

14 holding area which, as Plaintiffs argue, go to the heart of this case. Because the

15 Defendants fail to identify any compelling security reasons to redact these pictures, the

16 Court denies these redactions with the exception of the security footage on page 13 of the

17 Plaintiffs’ Memorandum supporting the Motion for Preliminary Injunction. This picture,

18 which is a reproduction of document 170, discussed above, may be redacted accordingly.

19

Vail Declaration includes various paragraphs opining that the holding cells are

20 overcrowded. Defendants do not offer any compelling reason to redact the Vail

21 Declaration of these paragraphs. The Court finds none, and the Court notes that four of

22 the five proposed redactions are new (¶¶ 29, 33, 36, 46) —they were not even proposed

23 in the Defendants’ Motion to Partially Seal the Plaintiffs’ Motion for Preliminary

24 Injunction. The Vail Declaration goes to the heart of this case because it addresses the

25 public concern that detainees be treated humanely. The Court denies the redactions.

26

Coles Declaration includes numbers of cameras and camera locations. The Court

27 finds the redactions of this limited information is not of significant public concern to

28 offset the security risk which exists if criminal elements obtained information as to how

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 5 of 13

1 many security cameras exist at a station and where they are located in the event of a

2 criminal attack on a station. The Court approves the Defendants’ proposed redaction to

3 the Coles Declaration.

4

2. Holding Capacity

5

Second, Defendants seek to redact holding capacity at the facilities because this

6 information would enable criminal elements to target and overwhelm specific Border

7 Patrol stations, thereby, impeding the Tucson Sector to carry out its enforcement and

8 protection responsibilities. The Court rejects this assertion outright, but it does not take it

9 lightly. “Chief Trindade explained the raw data, if analyzed, allows a person to identify

10 apprehension trends, showing what percentage of people Tucson Sector is apprehending

11 versus what the organization is sending. Furthermore, the raw data would also allow

12 people to predict staffing levels and coordinate an attempt to overwhelm the station’s

13 capabilities, thus leaving other areas open for ongoing smuggling or other criminal

14 activity. Planned smuggling attempts in mass numbers may result once the threshold of

15 facilities capacity is reached.” (Reply (Doc. 188) at 4 (quoting Supplement, Trindade

16 Decl. (Doc. 183-1) ¶ 10).

17

The Court has reviewed the “raw data” contained in Exhibits 83, 94, and 99,

18 which simply duplicates holding cell capacity numbers which Defendants currently post

19 at the doors of the holding cells. The information in these exhibits (holding cell capacity

20 numbers) are routinely seen by all detainees, with the exception of exhibit 83 which

21 includes instructions for how to obtain permission to exceed the cell limits. This

22 disclosure should dampen any enthusiasm by the criminal element to rely on the cell

23 limits contained in the exhibits as they can clearly be exceeded. Additionally, border

24 arrests and number of agents is data that is readily available to the public. See

25 www.cbp.gov/newsroom at Stats and Summaries. Defendants’ own conduct is contrary

26 to their asserted security concern, and the capacity of the holding cells and alleged

27 overcrowding is at the heart of this case and is a public concern. The Court finds the

28 Defendants do not offer a compelling reason for sealing Exhibits 83, 94, 99 or for

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 6 of 13

1 redactions in the Declarations by Bristow,2 Gaston, Vail, Goldenson, and Powitz, and the

2 Plaintiffs’ Memorandum in Support of the Motion for Preliminary Injunction and

3 Defendants’ Opposition.

4

3. Border Patrol’s e3DM System

5

Third, the Defendants seek to seal and redact documents concerning Border

6 Patrol’s e3DM system because unsealing these documents would enable hackers and

7 other criminal elements to exploit Border Patrol databases, computer systems, data

8 collection methods and categories to manipulate and/or delete, records which would

9 further trafficking, escape, and other criminal activities, and impede the Tucson Sector in

10 carrying out its law enforcement and protection responsibilities.

11

The Defendants provide the Declaration of Antonio J. Trindade, the Associate

12 Chief, Enforcement Division, U.S. Border Patrol, who is in charge of the Division

13 responsible for the e3 Processing Module and the e3 Detention Module. The Court notes

14 that the existence of the e3 Detention Module (e3DM) is not a secret. It is a data system

15 to “collect and transmit biographic, encounter, and biometric data for individuals

16 apprehended at the border for CBP’s law enforcement and immigration mission.” (Ds’

17 Supplement, Trindale Decl. ¶ 6.) The Court rejects assertions to seal or for redactions in

18 policy statements that speak only to generalized “capabilities and capacities of the e3DM

19 system.” Id. ¶ 8. Likewise, the Court rejects the assertion to seal or redact what type of

20 information goes into the system. Id. The Court is, however, persuaded that there is a

21 security risk if information is disclosed that could be used by a hacker to access or

22 navigate the system or to manipulate or delete its data. Likewise, the Court is persuaded

23 to redact information related to how and where to locate an individual being held by

24 Border Patrol.

25

26

27

2 This is the only reference in the Supplement Brief of a reason for the proposed

28

redactions related to the Defendant’s Response to the Motion for Preliminary Injunction. The Court will, therefore, deny the Motion to Partially Seal the Response to the Motion

for Preliminary Injunction and Exhibit 5, the Bristow Declaration.

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 7 of 13

1

Exhibits 96, 103, and 119 are index pages which define the various action codes,

2 like “LANG” for language service provided and other abbreviations like “SECTOR” for

3 Border Patrol Sector. The Defendants explain that knowing these codes would allow a

4 hacker to manipulate data contained in the e3DM system. The redactions in the Gaston

5 Declaration, however, reflect workflow actions that are discernable through common

6 sense: processing detainees reflects action events beginning with “Arrest;” “In BP

7 Station” for arriving in BP station; “In Transit”- if detainee is transported from one

8 station to another; “In BP station”—following any “In Transit;” followed by various in-

9 custody codes reflecting MLACC for “served meal, accepted,” MLREF for “served meal, 10 accepted”3 (sic); SHWRP for “shower provided.” The Court finds that neither these

11 codes nor the generalized workflow information contained in this paragraph poses a

12 security risk. They identify the services being provided to the detainees which are at

13 issue in this case. This is not the type of information which could be used to understand

14 law enforcement investigative techniques and procedures.

15

The Court, however, finds that knowing the comprehensive list of e3DM data

16 codes and definitions would assist a hacker in manipulating data contained in the e3DM

17 system. The Court finds this is a compelling reason to seal these documents especially

18 given that this evidence is not a public concern or central to the Plaintiffs’ case. Exhibits

19 96, 103, and 119 shall be sealed, but there shall be no redactions to the Gaston

20 Declaration. The information contained in Exhibit 96 which warrants sealing-- it is not

21 disclosed in paragraph 91 of Gaston’s Declaration.

22

4. Internal Processing Procedures

23

Fourth, Defendants seek to seal and redact documents involving internal medical,

24 booking, and detention, processing procedures and standards because knowing this

25 information would enable criminals to use fraudulent age, medical injuries, and other

26 process-related claims to exploit internal procedures to further criminal trafficking and

27 other criminal activities and to escape. Criminals could create fraudulent family units to

28 3 The Court assumes this should be “served meal, refused.”

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 8 of 13

1 traffic kidnapped children; circumvent video monitoring; conceal contraband; falsify age

2 to avoid adult processing, and escape. This would jeopardize the safety of Border Patrol

3 personnel and detainees and allow criminals to target victims of human trafficking and

4 detainees with mental or physical abuse to ensure they are unable to assist law

5 enforcement authorities. The Court has reviewed both the Allen and Trindade

6 declarations.

7

Exhibit 82 is a series of policy memoranda to Command Staff regarding updated

8 use directives for the e3DM system. Neither declarant, Allen or Trindade, expressly

9 addresses this exhibit. Of its own accord, the Court has reviewed the April 28, 2015,

10 memo and finds that it tells staff that all custodial actions must be properly logged into

11 the system to ensure proper use of the system pursuant to the Self-Inspect Program,

12 Prison Rape Elimination Act and to provide accurate historical records of detainee care

13 and movement while in Border Patrol custody. Without explanation from Defendants,

14 the Court finds nothing here to suggest a security risk exists if this document is not

15 sealed. The Court concludes similarly regarding the October 8, 2013, memo, with the

16 exception of the in-house reference to the website for obtaining training materials. This

17 website reference might be of use to hackers and may be redacted. Otherwise, the Court

18 finds nothing in the memoranda that reveals details not commonly known regarding the

19 e3DM system.

20

Exhibit 84 is a procedural directive regarding medical responsibilities, which

21 Allen describes as containing specific information regarding how agents handle sick or

22 injured detainees which could compromise law enforcement because knowing this would

23 allow criminal elements to manipulate the processing system to delay their processing to

24 effectuate escape or prevent monitoring. The flaw with this reason is that the risk of

25 manipulation exists without the information contained in Exhibit 84. The Court assumes

26 that the criminal element knows that medical care will be rendered should they feign a

27 need for it. Therefore, the risk of manipulating the system likely exists through the

28 criminal elements’ use of common sense.

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 9 of 13

1

The Court does, however, find other information that fits within the concerns for

2 hackers such as various internal login data system information. The Court is also

3 persuaded that special routing or isolation information for sick or pregnant detainees,

4 which includes identifying specific detention and medical facilities, would be helpful to a

5 criminal element seeking to facilitate an escape. The Court will allow redactions,

6 accordingly, of this information which is not central to the case nor is it a public concern,

7 as follows: USA000164 redact bullets 3, 6, 8, 10-12; USA000165 redact bullets 1-4, and

8 number 4; USA 000166 redact specified housing for pregnant detainees. The Court finds

9 that the policy and procedures for processing detainees with chiggers vs. scabies does not

10 need to be sealed or redacted.

11

The references to Exhibit 84 contained in the Goldenson declaration do not need

12 to be redacted because information contained in Exhibit 84 which warrants redaction is

13 not disclosed in paragraphs 30 and 41 of the declaration.

14

Exhibits 85 and 87 are memoranda to command staff to announce and transmit the

15 “2008 Hold Rooms and Short Term Custody” policy, and both include a copy of the 2008

16 policy. Neither memo contains any information which in any conceivable way could

17 pose a security risk.

18

As for the “2008 Hold Rooms and Short Term Custody” policy, the Government

19 has posted it in its Freedom of Information (FOI) Library in redacted form, which

20 includes redactions under the FOI exception to disclosures for techniques and procedures

21 for law enforcement investigations or prosecutions. 5 U.S.C. § 552b(c)(7)(E). The

22 parties were guided to some extent by the FOI exemptions, but it serves a different

23 purpose and exempt disclosures under the FOI are not automatically privileged in civil

24 discovery. (Motion to Partially Seal (Doc. 101) at 10): Objection (Doc. 109) at 10 (citing

25 Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C. Cir. 1984)).

26 The Court agrees with Defendants that the 2008 policy should be redacted as posted for

27 FOIA purposes, with the exception of the references in the policy to duration of detention

28 time which is information central to the question raised in this case. The Defendants fail,

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 10 of 13

1 however, to explain how knowing the specific length of the short term stay would aid the

2 criminal element in either escaping or manipulating law enforcement procedures.

3

Any document not expressly addressed by the Court contained in this Exhibit is

4 admissible as proposed by the Plaintiffs. The Court finds there is no compelling security

5 reason to redact this information which is central to this case and of a public concern.

6

Exhibit 87, “Encounters with Injured Subjects” is the policy for encounters with

7 injured subjects. The reason given for sealing the policy for encounters with injured

8 detainees is the same as the reason given for sealing the medical procedures and policy

9 information, Exhibit 84. However, the reasoning is more persuasive here because injured

10 detainees are likely to require more immediate emergency type care which could impede

11 the ability to make the initial identification of the detainee and initial determination as to

12 whether the detaining has a criminal record or in some other way poses a threat to the

13 United States. Thus the criminal element could take more advantage of the information

14 contained in this policy and procedure memorandum. The Court finds the “Encounters

15 with Injured Subjects” should be redacted of § § 2.1 through 2.3, and § 2.4 should be

16 redacted as proposed by the Plaintiffs.

17

Exhibit 86 is another memorandum to command staff regarding the use of the

18 updated, 2013, e3DM system. For the same reasons this Court found the other

19 memorandum did not need to be sealed, there is no compelling reason to seal this

20 memoranda. The Court, however, finds it should be redacted of its reference to the

21 Border Patrol’s secured internet training website.

22 Conclusion

23

Given the standard of review for a protective order, (Order (Doc. 164), the Court

24 only reviewed the reasons provided in the Defendants’ Supplemental Brief, properly

25 supported by affidavits. Burden, delay and expense are born of each side’s unnecessary

26 zeal. For example, Defendants argued to seal rather than redact exhibits and offered a

27 weak reason for nondisclosure of information on overcrowding which is clearly central to

28 the issues raised in this case and which addresses the public concern that detainees be

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 11 of 13

1 treated humanely in the United States. On the other hand, Plaintiffs appeared unwilling

2 to make redactions of information posing potential security risks to our country when that

3 information was not relevant to the issues central to the case and of public concern.

4 Given the voluminous exhibits accompanying the Plaintiffs Motion for Preliminary

5 Injunction, the Court will order the parties to meet and confer before making the filings

6 which are the subject of this Order. With the guiding principles in mind that the Court

7 has provided in this Order, the parities are invited to agree to any further redactions

8 which the Court may not have addressed expressly in this Order.

9

Accordingly,

10

IT IS ORDERED that the Motion to Partially Seal the Plaintiffs’ Motion for

11 Preliminary Injunction (Doc. 101) is GRANTED IN PART AND DENIED IN PART and

12 the Motion to Partially Seal the Defendants Response to the Motion for a Preliminary

13 Injunction (Doc. 139) is DENIED.

14

IT IS FURTHER ORDERED that the Motion to Partially Seal the Plaintiffs’

15 Motion for Preliminary Injunction (Doc. 101) is GRANTED IN PART as follows:

16

Doc. 76: Plaintiffs’ Motion for Preliminary Injunction at 13 redacted to coincide

17 with redactions to Exhibit 170;

18

Doc. 76-6: Coles Decl. redacted as requested by Defendants;

19

Doc. 77: Exhibit 6 schematic redacted;

20

Doc. 83: Exhibit 48 security panel redacted;

21

Doc. 86: Exhibits 79-80 sealed;

22

Doc. 87: Exhibit 81 sealed; Exhibit 82, October 8, 2013 Memo redacted for

23 reference to Border Patrol’s internet training site; Exhibit 84, Medical Responsibilities

24 redacted at USA000164 bullets 3, 6, 8, 10-12, USA000165 bullets 1-4, and USA 000166

25 specified housing placement for pregnant detainees; Exhibit 85, 2008 Hold Rooms and

26 Short Term Custody Policy, as redacted for purposes of the FOI, except references to

27 duration of detention time limits shall not be redacted; Exhibit 86 redacted for reference

28 to Border Patrol internet training site; Exhibit 87, 2008 Hold Rooms and Short Term

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Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 12 of 13

1 Custody Policy, as redacted for purposes of the FOI, except references to duration of

2 detention time limits shall not be redacted, and Encounters with Injured Subjects redacted

3 at §§ 2.1-2.3 entirely and § 2.4 as redacted by Plaintiffs;

4

Doc. 88: Exhibits 88, 96, 98, and 103 sealed;

5

Doc. 91: Exhibits 117 and 119 sealed;

6

Doc. 92: Exhibits 147, 167, 170-171 redacted for pictures which show storage

7 areas, hallways, etc. that are not holding areas and to which detainees do not have access;

8

Doc. 93: Exhibits 172, 186-187 redacted the same as above.

9

IT IS FURTHER ORDERED that within 20 days of the filing date of this Order

10 the parties shall meet and confer regarding the redactions ordered by the Court, and if

11 possible, to agree to the appropriate redactions to Exhibits 147, 167, 170-172, and 186-

12 187.

13

IT IS FURTHER ORDERED that the Plaintiffs shall thereafter file the Redacted

14 Motion for Preliminary Injunction, with the declarations, including the redacted Coles

15 Declaration, and the Clerk of the Court shall reflect on the docket the nunc pro tunc filing

16 date of the original motion (Doc. 76).

17

IT IS FURTHER ORDERED that the Clerk of the Court shall file the following

18 lodged documents under seal: Documents 77, 83, 86, 87, 88, 91, 92, and 93. The exhibits

19 contained therein shall remain sealed only as follows: Exhibits 79-80, 81, 88, 96, 98, 103,

20 117, and 119.

21

IT IS FURTHER ORDERED that because the electronic filing system cannot

22 pick and choose between exhibits contained in one document the Plaintiffs must refile all

23 the redacted, un-redacted and unsealed exhibits contained in Docs. 77, 83, 86, 87, 88, 91,

24 92, and 93.

25

IT IS FURTHER ORDERED that the Clerk of the Court shall unseal Document

26 84.

27

IT IS FURTHER ORDERED that the remaining sealed lodged documents filed

28 by the parties shall remain lodged only.

- 12 -

Case 4:15-cv-00250-DCB Document 189 Filed 08/03/16 Page 13 of 13

1

IT IS FURTHER ORDERED that the Motion to Partially Seal the Plaintiffs’

2 Motion for Preliminary Injunction (Doc. 101) is DENIED IN ALL OTHER PARTS.

3

4

IT IS FURTHER ORDERED that the Defendants’ Motion to Partially Seal

5 Opposition to Motion for Preliminary Injunction (Doc. 139) is DENIED. The Clerk of

6 the Court shall unseal Document 141.

7

Dated this 2nd day of August, 2016.

8

9

10

Honorable David C. Bury

11

United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 13 -

 
 Case 4:15-cv-00250-DCB Document 206 Filed 08/17/16 Page 1 of 35

1 Harold J. McElhinny* Kevin M. Coles*
2 Elizabeth G. Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: HMcElhinny@mofo.com Email: KColes@mofo.com
6 Email: EBalassone@mofo.com

7 Attorneys for Plaintiffs

8 * Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

9 Additional counsel listed on next page

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

14 Jane Doe # 1; Jane Doe # 2; Norlan Flores, Case No. 4:15-cv-00250-TUC-DCB

on behalf of themselves and all others

15 similarly situated,

BRIEF IN SUPPORT OF

16

Plaintiffs,

PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION

17

v.

CLASS ACTION

18 Jeh Johnson, Secretary, United States

Department of Homeland Security, in his

Oral Argument Requested

19 official capacity; R. Gil Kerlikowske,

Commissioner, United States Customs &

(Assigned to the

20 Border Protection, in his official capacity;

Honorable David C. Bury)

Michael J. Fisher, Chief of the United States

21 Border Patrol, in his official capacity; Jeffrey Self, Commander, Arizona Joint

Action Filed: June 8, 2015

22 Field Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent-

PARTIALLY REDACTED

23 Tucson Sector, in his official capacity,

24

Defendants.

25

26

27

28

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Case 4:15-cv-00250-DCB Document 206 Filed 08/17/16 Page 2 of 35

1 Colette Reiner Mayer* MORRISON & FOERSTER LLP
2 755 Page Mill Road Palo Alto, CA 94304-1018
3 Telephone: (650) 813-5600 Facsimile: (650) 494-0792
4 Email: CRMayer@mofo.com
5

Travis Silva* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: tsilva@lccr.com

6 Louise C. Stoupe* Pieter S. de Ganon*

Victoria Lopez (Bar No. 330042)**

7 MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor

Daniel J. Pochoda (Bar No. 021979) James Duff Lyall (Bar No. 330045)**

8 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan

ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235

9 Telephone: +81-3-3214-6522

Phoenix, AZ 85014

Facsimile: +81-3-3214-6512

Telephone: (602) 650-1854

10 Email: LStoupe@mofo.com

Facsimile: (602) 650-1376

Email: PdeGanon@mofo.com

Email: vlopez@acluaz.org

11

Email: dpochoda@acluaz.org

Email: jlyall@acluaz.org

12 Linton Joaquin*

Karen C. Tumlin*

13 Nora A. Preciado*

NATIONAL IMMIGRATION LAW

14 CENTER

3435 Wilshire Boulevard, Suite 2850

15 Los Angeles, CA 90010

Telephone: (213) 639-3900

16 Facsimile: (213) 639-3911

Email: joaquin@nilc.org

17 Email: tumlin@nilc.org

Email: preciado@nilc.org

18

Mary Kenney*

19 Emily Creighton*

Melissa Crow*

20 AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200 21 Washington, D.C. 20005
Telephone: (202) 507-7512 22 Facsimile: (202) 742-5619
Email: mkenney@immcouncil.org 23 Email: ecreighton@immcouncil.org
Email: mcrow@immcouncil.org 24
Attorneys for Plaintiffs 25
* Admitted pursuant to Ariz. Sup. Ct. R. 38(a) 26
** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

27

28

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Case 4:15-cv-00250-DCB Document 206 Filed 08/17/16 Page 3 of 35

1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES..............................................................................................ii

4 I. II.
5
6
7

INTRODUCTION ................................................................................................... 2
BACKGROUND ..................................................................................................... 3
A. The Conditions of Confinement in Tucson Sector Stations are Inhumane and Punitive. ................................................................................ 3
B. Defendants’ Policies and Procedures, Recently Amended, Formalize and Systematize the Harm...........................................................7

8 III. LEGAL STANDARD ............................................................................................. 8

IV. ARGUMENT .......................................................................................................... 9

9

A. Plaintiffs are Likely to Succeed On Their Claim That

10

Defendants Violate Their Fifth Amendment Due Process Rights............................................................................................................ 9

11

1. Governing Law..................................................................................9

12

2. Failure to Provide Beds and Deprivation of Sleep..........................10

3. Failure to Provide Warmth .............................................................. 13

13

4. Failure to Provide a Safe and Sanitary Environment ......................14

14

5. Failure to Provide Adequate and Sufficient Food...........................16

15

6. Failure to Provide Potable Water .................................................... 17

7. Failure to Provide Adequate Medical Screening and

16

Care ................................................................................................. 18

17

B. Plaintiffs are Likely to Succeed on Their Claim That Defendants Have Failed to Enforce Mandatory Statements of

18

Policy. ......................................................................................................... 20

1. Governing Law................................................................................20

19

2. Defendants Fail to Abide by the TEDS Standards..........................21

20

C. Plaintiffs Will Suffer Irreparable Harm If This Court Does Not

Grant An Injunction.................................................................................... 22

21

D. The Balance of Equities Tips Sharply in Plaintiffs’ Favor. .......................23

22

E. A Preliminary Injunction Serves the Public Interest..................................23

23 V. CONCLUSION ..................................................................................................... 24

24

25

26

27

28

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1 2 3 CASES

TABLE OF AUTHORITIES

Page(s)

4 Albright v. Oliver, 510 U.S. 266 (1994) ............................................................................................................. 21
5

6 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)............................................................................................... 9

7

Anela v. City of Wildwood,

8

790 F.2d 1063 (3d Cir. 1986).............................................................................................. 10

9 Angov v. Lynch,

10

788 F.3d 893 (9th Cir. 2015)................................................................................................. 4

11 Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996)............................................................................................... 12
12

13 Atkins v. County of Orange, 372 F. Supp. 2d 377 (S.D.N.Y. 2005)................................................................................ 14

14

Board v. Farnham,

15

394 F.3d 469 (7th Cir. 2005)............................................................................................... 15

16 Bowers v. City of Philadelphia,

17

No. 06-CV-3229, 2007 WL 219651 (E.D. Pa. Jan. 25, 2007) .................................. 11, 15

18 Campbell v. Cauthron, 623 F.2d 503 (8th Cir. 1980)............................................................................................... 17
19

20 Dawson v. Kendrick, 527 F. Supp. 1252 (S.D. W.Va. 1981) ............................................................................... 14

21

Defenders of Wildlife v. Tuggle,

22

607 F. Supp. 2d 1095 (D. Ariz. 2009)................................................................................ 20

23 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,

24

489 U.S. 189 (1989) ............................................................................................................... 9

25 Estate of Prasad ex rel. Prasad v. County of Sutter, 958 F. Supp. 2d 1101 (E.D. Cal. 2013).............................................................................. 19
26
27 Farris v. Seabrook, 677 F.3d 858 (9th Cir. 2012) ................................................................................................. 9
28

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1 Fischer v. Winter,

2

564 F. Supp. 281 (N.D. Cal. 1983)..................................................................................... 16

3 Flynt Distributing Co., Inc. v. Harvey, 734 F.2d 1389 (9th Cir. 1984)............................................................................................... 9

4

Foster v. Runnels,

5

554 F.3d 807 (9th Cir. 2009)............................................................................................... 16

6 Friendly House v. Whiting,

7

846 F. Supp. 2d 1053 (D. Ariz. 2012)................................................................................ 23

8 Gates v. Cook,

9

376 F.3d 323 (5th Cir. 2004)............................................................................................... 16

10 Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175 (9th Cir. 2002)............................................................................................. 18

11

Graves v. Arpaio,

12

48 F. Supp. 3d 1318 ............................................................................................... 18, 19

13 Harris v. Bd. of Supervisors, L.A. Cty.,

14

366 F.3d 754 (9th Cir. 2004) ................................................................................. 22, 23

15 Helling v. McKinney,

16

509 U.S. 25 (1993) ................................................................................................. 15, 18

17 Henderson v. DeRobertis, 940 F.2d 1055 (7th Cir. 1991), cert. denied, 503 U.S. 966 (1992).............................. 14

18

Hernandez v. County of Monterey,

19

-- F. Supp. 3d. --, No. 5:13-CV-2354-PSG,

20

2015 WL 3868036 (N.D. Cal. Apr. 14, 2015) ....................................................... 19, 22

21 Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995) .................................................................. 19
22

23

Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ........................................................................... 10, 14, 17

24 Jordan v. Gardner,

25

986 F.2d 1521 (9th Cir. 1993) ..................................................................................... 24

26 Keenan v. Hall,

27

83 F.3d 1083 (9th Cir. 1996), amended on other grounds,

135 F.3d 1318 (9th Cir. 1998)................................................................................. 12, 14, 17

28

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1 King v. Frank,

2

328 F. Supp. 2d 940 (W.D. Wis. 2004) ............................................................................. 12

3 Klein v. City of Laguna Beach, 381 F. App’x 723 (9th Cir. 2010) ......................................................................................... 9

4

Knop v. Johnson,

5

667 F. Supp. 467 (W.D. Mich. 1987),

6

aff’d in pertinent part, 977 F.2d 996 (6th Cir. 1992) ....................................................... 14

7 Lareau v. Manson,

651 F.2d 96 (2d Cir. 1981) ...................................................................................... 10, 15, 18 8

9

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) .................................................................................. 18

10 Majors v. Jeanes,

11

48 F. Supp. 3d 1310 (D. Ariz. 2014) ........................................................................... 22

12 Melendres v. Arpaio,

13

695 F.3d 990 (9th Cir. 2012)......................................................................................... 22, 24

14 Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) ............................................................................................................... 20
15

16

Pure Wafer, Inc. v. City of Prescott, 14 F. Supp. 3d 1279.............................................................................................................. 22

17 Rhodes v. Chapman,

18

452 U.S. 337 (1981) ............................................................................................................... 8

19 River Runners for Wilderness v. Martin,

20

593 F.3d 1064 (9th Cir. 2010)............................................................................................. 20

21 Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)................................................................................. 22, 23, 24
22

Rosado v. Alameida,

23

349 F. Supp. 2d 1340 (S.D. Cal. 2004)........................................................................ 23, 24

24 Sandlin v. Conner,

25

515 U.S. 1237 (1974) ........................................................................................................... 19

26 Shorter v. Baca,

27

-- F. Supp. 3d. --, No. 12-cv-7337-DOC,

2015 WL 1809282 (C.D. Cal. Apr. 21, 2015) .................................................................. 19

28

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1 Sierra Forest Legacy v. Rey,

2

577 F.3d 1015 (9th Cir. 2009)............................................................................................... 8

3 Smith v. Sullivan, 553 F.2d 373 (5th Cir. 1977)............................................................................................... 17

4

Thompson v. City of Los Angeles,

5

885 F.2d 1439 (9th Cir. 1989)............................................................................................. 10

6 Toussaint v. McCarthy,

7

597 F. Supp. 1388 (N.D. Cal. 1984), aff’d in part, rev’d in part on other

grounds, 801 F.2d 1080 (9th Cir. 1986) .......................................................... 12, 13, 14, 15 8

9

U.S. v. Raines, 362 U.S. 17 (1960) ............................................................................................................... 24

10 United States v. Wilson,

11

344 F. App’x 134 (6th Cir. 2009) ....................................................................................... 14

12 University of Texas v. Camenisch,

13

451 U.S. 390 (1981) ............................................................................................................... 9

14 V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009) ............................................................................. 22
15

16

Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999)............................................................................................. 19

17 Winter v. Nat. Res. Def. Counsel,

18

555 U.S. 7 (2008).................................................................................................................. 23

19 Wong Wing v. United States,

20

163 U.S. 228 (1896) ............................................................................................................. 10

21 Young v. Quinlan, 960 F.2d 351 (3rd Cir. 1992)............................................................................................... 16
22

Zadvydas v. Davis,

23

533 U.S. 678 (2001) ............................................................................................................. 10

24 Zepeda v. U.S. INS,

25

753 F.2d 719 (9th Cir. 1984)......................................................................................... 22, 23

26

27

28

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1 CONSTITUTION

2 U.S. CONST. amend. V ............................................................................................... 9, 10, 12, 24

3 U.S. CONST. amend. VIII .................................................................................................... passim

4 STATUTES

5

5 U.S.C.

6

§ 551(4) .................................................................................................................................. 20

7

§ 706(1) .............................................................................................................................. 2, 20

8 RULES Fed. R. Civ. P. 65.................................................................................................................... 1

9

OTHER AUTHORITIES 10

Nina Bernstein, U.S. to Reform Policy on Detention for Immigrants, N.Y. Times,

11

August 5, 2009, available at http://www.nytimes.com/2009/08/06/

12

us/politics/06detain.html?pagewanted=all&_r=1 ................................................................... 1

13 Pope Francis, Address to the Joint Session of the United States Congress, Sept. 24, 2015, available at https://w2.vatican.va/content/francesco/en/speeches/2015/september/

14

documents/papa-francesco_20150924_usa-us-congress.html. ................................................. 1

15 Tucson Sector Arizona, U.S. Customs & Border Protection, available at

http://1.usa.gov/1vuFTNw ....................................................................................................... 4 16

17

U.S. President Barack Obama, Remarks by the President in Address to the Nation on Immigration, Nov. 20, 2014, available at https://www.whitehouse.gov/the-press-

18

office/2014/11/20/ remarks-president-address-nation-immigration ........................................ 1

19 U.S. Dep’t of State, Report on Int’l Prison Conditions, May 22, 2013, available at http://www.state.gov/j/drl/rls/209944.htm. ......................................................................... 3, 11
20

21

22

23

24

25

26

27

28

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1

In his recent address to Congress, Pope Francis appealed to Americans’ shared

2 history. “We, the people of this continent, are not fearful of foreigners, because most of

3 us were once foreigners. I say this to you as the son of immigrants, knowing that so many 4 of you are also descended from immigrants.” 1 Pope Francis called on the United States to

5 treat the “thousands of persons [that] are led to travel north in search of a better life for 6 themselves and for their loved ones” in a way that is “humane, just and fraternal.”2

7 Publicly, at least, the government concurs. “Scripture tells us,” President Obama said in

8 his much-touted speech on immigration, “that we shall not oppress a stranger, for we 9 know the heart of the stranger—we were strangers once, too.”3

10

Yet oppress is not too strong a word for what the federal government does, day in

11 and day out, to immigrants detained at short-term civil detention facilities along the

12 southern border. In U.S. Border Patrol “stations” in Arizona, the government—which

13 years ago pledged to transform immigration detention into a “truly civil detention 14 system”4—routinely and systematically denies immigrants the minimal civilized measure

15 of life’s necessities. It forces immigrants to sleep on cold, trash-strewn concrete floors; it

16 detains immigrants for days in crowded cells without soap, showers, or hot water; it

17 punishes immigrants who complain by lowering cell temperatures and threatening to

18 confiscate food. These actions are as shameful as they are unconstitutional.

19

Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs Jane Doe #1, Jane Doe

20 #2, and Norlan Flores and putative Class Members (together “Plaintiffs”) hereby move for

21 a preliminary injunction (1) enjoining Defendants and their agents and employees from

22

1 Pope Francis, Address to the Joint Session of the United States Congress, Sept. 24, 2015, 23 available at https://w2.vatican.va/content/francesco/en/speeches/2015/september/

documents/papa-francesco_20150924_usa-us-congress.html.

24

2 Id.

25

3 U.S. President Barack Obama, Remarks by the President in Address to the Nation on

Immigration, Nov. 20, 2014, available at https://www.whitehouse.gov/the-press26 office/2014/11/20/ remarks-president-address-nation-immigration.

27

4 See, e.g., Nina Bernstein, U.S. to Reform Policy on Detention for Immigrants, N.Y.

Times, August 5, 2009, available at http://www.nytimes.com/2009/08/06/

28 us/politics/06detain.html?pagewanted=all&_r=1.

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1 subjecting Plaintiffs to conditions of confinement in Tucson Sector stations that violate

2 Plaintiffs’ Due Process rights by depriving Plaintiffs of sleep, warmth, a safe and sanitary

3 environment, and medical screening and care; and (2) compelling Defendants, pursuant to

4 5 U.S.C. § 706(1), to enforce certain minimal standards related to Plaintiffs’ detention.

5 I. 6

INTRODUCTION Tucson Sector stations are designed for the short-term civil detention and

7 processing of immigrant detainees, “not . . . for long-term care and detention.” (ECF No.

8 39-1, Ex. 1 ¶ 11.) Because they were not intended to be long-term detention centers—

9 and, specifically, because they were “not intended for sleeping” (Ex. 81 at USA00091)—

10 detention that exceeds 12 hours inevitably creates harsh and punitive conditions that 11 violate the constitutional rights of the detained individuals.5 Yet detention for days on end

12 is the norm. Between June 10, 2015, and September 28, 2015, over 1000 people were

13 detained for longer than 48 hours. (Declaration of Joseph Gaston (“Gaston Decl.”) ¶ 20.)

14 Defendants’ repeated statements that these stations are “short-term facilities” for the

15 purpose of “brief initial processing,” portray what stations are supposed to be, not what

16 they are. (ECF No. 52 at 2, 8-9.)

17

This gap between purpose and practice creates the harm. Detained individuals are

18 deprived of sleep, warmth, sanitation, food and water because Tucson Sector stations are

19 neither meant nor equipped to keep detained individuals for more than a few hours, let

20 alone for days. Aside from a steel door, cement benches, and a metal “sink/toilet unit,”

21 Tucson Sector “hold rooms” are bare, concrete cells. (Declaration of Eldon Vail (“Vail

22 Decl.”) ¶ 208.) There are no beds; there is no bedding. Bright overhead lights are kept on

23 day and night. There are no kitchens to prepare meals, no showers, no recreational

24 spaces. Designed to be temporary “waiting rooms,” they are being used as makeshift

25 dormitories—only without the most fundamental component of a dormitory: beds.

26

27

5 Twelve hours is not arbitrary. Chief Padilla himself testified that “border patrol seeks to

process and transfer all aliens out of their custody within 12 hours from apprehension.” (ECF No.

28 39-1, Ex. 1 ¶ 11.)

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1

The harm is compounded because Border Patrol agents were never supposed to be,

2 nor were they trained to be, jailers. Their job, as they themselves note, is the

3 “apprehension, processing, and temporary custody of aliens.” (ECF No. 39-1, Ex. 1 ¶ 3.)

4 The reality, however, is that Tucson Sector stations have become jails and Tucson Sector

5 agents have become jailers. The result is a national embarrassment.

6

The fix is clear: Defendants should process and transfer detained individuals

7 promptly or hold them in facilities that are designed for detention. What Defendants may

8 not do is continue to detain Plaintiffs under conditions of confinement that are degrading,

9 punitive, and unconstitutional—conditions that the U.S. government routinely condemns 10 when they occur elsewhere in the world.6

11

Plaintiffs will continue to suffer irreparable injury if preliminary relief is not

12 granted. The evidence—which includes video stills, photos, station logs, detainee

13 declarations, and expert opinion—demonstrates that Plaintiffs are likely to succeed on the

14 merits of their claims. Defendants’ mistreatment of Plaintiffs is profoundly inequitable

15 and serves no conceivable public interest. The relief Plaintiffs respectfully seek from this

16 Court is appropriate and urgent.

17 II. BACKGROUND

18

A. The Conditions of Confinement in Tucson Sector Stations are

Inhumane and Punitive.

19

20

Detained individuals are apprehended following lengthy, grueling, and perilous

21 journeys across the Sonoran Desert. (Vail Decl. ¶ 122.) They are, overwhelmingly,

22 exhausted, hungry, and thirsty. (Id. ¶ 140.) Many are sick or injured and in need of

23 immediate medical care. (Id.) Some fled their native land out of fear for their safety or

24 the safety of their loved ones. (Id. ¶ 152.) Others have U.S. citizen children and spouses.

25 (Id. ¶ 152.) Those detained include parents with young children (Declaration of Kevin

26 Coles (“Coles Decl.”) ¶ 37; Vail Decl. ¶ 61) and pregnant women (Vail Decl. ¶ 61).

27

6 See, e.g., Dep’t of State, Report on Int’l Prison Conditions, May 22, 2013, available at

28 http://www.state.gov/j/drl/rls/209944.htm.

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1

They are “question[ed] in the field” (ECF No. 39-1, Ex. 1 ¶ 7) before being brought

2 to one of eight Tucson Sector stations: the Brian A. Terry Station (formerly Naco Station),

3 Casa Grande Station, Douglas Station, Nogales Station, Sonoita Station, Tucson Station, 4 Ajo Station, and Willcox Station.7 If these stations functioned as designed, CBP agents

5 would “expeditiously process individuals before they are either [sic] transferred, removed,

6 or released.” (ECF No. 39-1, Ex. 1 ¶ 18.) Instead, these “tired, poor, huddled masses,”

7 Angov v. Lynch, 788 F.3d 893, 909 (9th Cir. 2015), are imprisoned for days in bare

8 concrete cells, often for many days (Gaston Decl. ¶ 20).

9

Detained individuals are not medically screened on arrival (Vail Decl. ¶ 138;

10 Declaration of Joe Goldenson M.D. (“Goldenson Decl.”) ¶¶ 18-23), their medication is

11 confiscated (Vail Decl. ¶ 139; Goldenson Decl. ¶¶ 47-52), and those who ask for medical

12 assistance are ignored or rebuffed (Vail Decl. ¶ 139; Goldenson Decl. ¶¶ 43-46). As a

13 matter of policy, they are stripped of all outer layers of clothing, they are not permitted to

14 wash or change, and they are locked into cells—all of them, including pregnant women

15 and children. (Vail Decl. ¶¶ 104-105, 116, 123; ECF No. 39-1, Ex. 1 ¶ 12; Powitz Decl.

16 ¶ 92.)

17

They are usually, but not always (Vail Decl. ¶ 106), given “Mylar blankets” (ECF

18 No. 39-1, Ex.1 ¶ 15). These paper-thin sheets of plastic are demonstrably inadequate to

19 keep them warm in cells that, at times, drop to 58.8° Fahrenheit. (Vail Decl. ¶ 107.)

20 Surveillance video footage shows detainees huddled together, wrapped head-to-toe in

21 these flimsy plastic sheets, even during the hot Arizona summers:

22

23

24

25

26

27

7 See Tucson Sector Arizona, U.S. Customs & Border Protection, available at

28 http://1.usa.gov/1vuFTNw.

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13 (Ex. 173 (photograph dated September 22, 2015); Vail Decl. ¶ 106; Powitz Decl. ¶ 95.)

14 Detainees look cold, because, as they have testified, they are cold. (Vail Decl. ¶¶ 107-

15 108; Powitz Decl. ¶ 100.) This cold is exacerbated because cells are made of concrete and

16 metal. Unless they stand for 24 hours or more, they must sit or lie on heat-draining

17 concrete floors and benches. (Vail Decl. ¶¶ 47, 109.) When detainees request more heat,

18 guards refuse or, sometimes, make the cells colder. (Vail Decl. ¶ 108; Powitz Decl.

19 ¶ 100.)

20

Some spend days in cells so crowded that they must sit or lie on every inch of floor

21 space: next to toilets, wastebaskets, overlapping with one another. (Coles Decl. ¶ 109;

22 Vail Decl. ¶¶ 32, 33, 52.) Some are forced to try to sleep sitting upright. (Vail Decl.

23 ¶¶ 34, 35, 52.) They are given no beds, cots, or mattresses. (Vail Decl. ¶¶ 54, 56; Powitz

24 Decl. ¶ 46, 48.) Stations have mats, but not nearly enough for the number of detainees

25 regularly kept overnight. (Vail Decl. ¶ 57, 60, 62; Powitz Decl. ¶ 47, 48.) Moreover,

26 Defendants provide mats only to juveniles (Vail Decl. ¶ 58; see also Ex. 87 at

27 USA00634), which explains surveillance video footage showing detainees lying on

28

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1 concrete floors while mats go unused in adjacent cells. (Vail Decl. ¶ 59; Coles Decl.

2 ¶ 59.) Hold room lights are always on (Vail Decl. ¶ 63; ECF No. 39-1, Ex. 1 ¶ 8; Powitz

3 Decl. ¶ 49), and detainees can be seen shielding their faces under Mylar sheets (Vail Decl.

4 ¶ 64).

5

Hold rooms often lack potable water because none is provided or because the

6 drinking fountains (or “bubblers”) attached to the toilet/sink units do not work properly.

7 (Vail Decl. ¶¶ 80, 83, 85.) Detainees are often (and inexplicably) not given cups, despite

8 ample disposable cups on site. (Vail Decl. ¶¶ 77, 79; Powitz Decl. ¶ 75.) As a result,

9 detainees are forced to share drinking cups (Vail Decl. ¶ 77; Powitz Decl. ¶ 75) or recycle

10 used juiceboxes (Vail Decl. ¶ 80). Surveillance footage from Casa Grande Station shows

11 at least a dozen different detainees drinking from the same one-gallon plastic water jug

12 over the course of five days. (Id. ¶ 81.) Even though the cell in question was twice

13 cleaned by maintenance, no attempt was made to clean the jug. (Id. ¶ 82.)

14

Defendants regularly fail to feed detainees: between June 10, 2015, and

15 September 28, 2015, there were 1,400 instances in which someone was not fed for 24 or

16 more hours. (Gaston Decl. ¶ 45.) When they are fed, detainees are given some

17 combination of a microwavable burrito, crackers, and juice for every meal and every

18 snack. (Vail Decl. ¶ 90; Powitz Decl. ¶ 74.) Aside from baby food and formula, Tucson

19 Sector stations stock no other food. (Vail Decl. ¶ 91.) Despite providing irregular and

20 nutritionally inadequate “meals,” Border Patrol agents threaten to confiscate detainees’

21 food to keep detainees quiet. (Id. ¶ 100.)

22

Detainees are confined with perfect strangers, but are afforded no privacy. Toilets

23 are inadequately shielded from view by “low screening walls” and agents constantly

24 monitor detainees through surveillance cameras mounted in each cell (ECF No. 39-1,

25 Ex. 1 ¶ 14; Vail Decl. ¶ 50; Powitz Decl. ¶ 63). Because hold rooms are often

26 overcrowded, there are insufficient toilets, and these are often in disrepair. (Vail Decl.

27 ¶ 51; Powitz Decl. ¶¶ 51-52.)

28

Detainees are only sometimes provided with soap, but never towels, toothbrushes,

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1 or toothpaste, and only rarely hot water and showers. (Vail Decl. ¶¶ 116, 117, 119, 120,

2 122; Powitz Decl. ¶¶ 58-60.) As a result, detainees are unable to wash their hands at any

3 time, even after using the toilet or before eating. (Vail Decl. ¶ 115; Powitz Decl. ¶¶ 64,

4 73.) Hold rooms are cleaned infrequently. (Powitz Decl. ¶¶ 23, 27, 28, 29.) Surveillance

5 footage from Casa Grande station indicates that they are cleaned once every 48 hours, if

6 that (Vail Decl. ¶ 52), forcing mothers to care for their children on cell floors surrounded

7 by days of accumulated trash (Powitz Decl. ¶ 30):

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18 19 (Ex. 148.)

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B. Defendants’ Policies and Procedures, Recently Amended, Formalize

and Systematize the Harm.

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22

Until very recently, the conditions of confinement in CBP stations nationwide were

23 governed by CBP’s 2008 Hold Rooms and Short Term Custody Policy (“2008 Policy”).

24 (Ex. 87.) The 2008 Policy recognized that CBP stations were designed for short-term

25 detention. “Whenever possible,” it reads, “a detainee should not be held for more than 12

26 hours.” (Id. at USA000325.) Two months ago, however, Defendants issued new policies

27 and procedures. The newly minted National Standards on Transport, Escort, Detention,

28 and Search (“TEDS standards”) have all but abandoned the pretense that CBP stations are

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1 used for short-term detention. Now, Defendants have decided, “[d]etainees should

2 generally not be held for longer than 72 hours” in these same facilities. (Ex. 95 at

3 USA00631.)

4

While significantly lengthening the duration of permissible detention, the TEDS

5 standards permit even worse conditions for detainees. The 2008 Policy stated that

6 “[d]etainees requiring bedding will be given clean bedding.” (Ex. 87 at USA000330.)

7 Despite now endorsing overnight detention, the TEDS standards permit only juveniles to

8 have beds or bedding. (Ex. 95 at USA000634.) Adults are supposed get “clean blankets

9 . . . upon request,” but only “when available.” (Id.) The 2008 Policy guaranteed detainees

10 soap to wash their hands after using the toilet or before eating. (Ex. 87 at USA000330.)

11 But under the TEDS standards—and despite assurances from Chief Patrol Agent Padilla

12 that the Tucson Sector “takes the health and safety of aliens within [its] custody seriously

13 (ECF No. 39-1, Ex. 1 ¶ 15)—soap “may be made available” but only when “operationally

14 feasible.” (Ex. 95 at USA000634 (emphasis added).) The list goes on.

15

If there was ever any doubt that, as a matter of policy and practice, Defendants can

16 and will detain Plaintiffs under conditions that deny Plaintiffs “the minimal civilized

17 measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981), the TEDS

18 standard erases it. Defendants have given themselves permission to hold Plaintiffs for at

19 least three days and three nights in constantly illuminated cells that lack beds, blankets,

20 soap, adequate food, potable water, and hot running water; and Defendants have done so

21 despite scores of federal judicial opinions condemning these very conditions.

22 III. LEGAL STANDARD

23

A movant is entitled to a preliminary injunction if she shows that she is likely to

24 succeed on the merits; that she is likely to suffer irreparable harm in the absence of

25 preliminary relief; that the balance of equities tips in her favor; and that an injunction is in

26 the public interest. Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.

27 2009) (citation omitted). A movant also may rely upon an “alternate formulation” of this

28 standard under which “serious questions going to the merits and a balance of hardships

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1 that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so

2 long as the plaintiff also shows that there is a likelihood of irreparable injury and that the

3 injunction is in the public interest.” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012)

4 (citation omitted). Under this second “sliding scale” approach, “the elements of the

5 preliminary injunction test are balanced, so that a stronger showing of one element may

6 offset a weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d

7 1127, 1131 (9th Cir. 2011). “The same standard applies regardless of whether the movant

8 seeks to maintain the status quo or to halt an ongoing deprivation of rights.” Klein v. City

9 of Laguna Beach, 381 F. App’x 723, 725 (9th Cir. 2010) (citation omitted). In addition,

10 because a preliminary injunction is granted on less formal procedures than a full trial on

11 the merits, University of Texas v. Camenisch, 451 U.S. 390, 395 (1981), a court may

12 consider otherwise inadmissible evidence in making its ruling, Flynt Distributing Co.,

13 Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984).

14 IV. ARGUMENT

15

A. Plaintiffs are Likely to Succeed On Their Claim That Defendants

Violate Their Fifth Amendment Due Process Rights.

16

1. Governing Law 17
Defendants are constitutionally obligated to care for individuals whom, like 18
Plaintiffs, Defendants detain against their will: 19

[W]hen the State takes a person into its custody and holds him

20

there against his will, the Constitution imposes upon it a

corresponding duty to assume some responsibility for his

21

safety and general well-being. The rationale for this principle

is simple enough: when the State by the affirmative exercise

22

of its power so restrains an individual's liberty that it renders

him unable to care for himself, and at the same time fails to

23

provide for his basic human needs—e.g., food, clothing,

shelter, medical care, and reasonable safety—it transgresses

24

the substantive limits on state action set by the Eighth

Amendment and the Due Process Clause.

25

26 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989)

27 (citations omitted).

28

Because Plaintiffs are civil detainees held pursuant to civil immigration laws,

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1 Zadvydas v. Davis, 533 U.S. 678, 690 (2001), their protections derive from the Fifth

2 Amendment, which shields any person in the custody of the United States from conditions

3 that amount to punishment without due process of law. Wong Wing v. United States,

4 163 U.S. 228, 237 (1896).

5

Civil detainees “are entitled to conditions of confinement that are not punitive.”

6 Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). Several principles follow from this

7 assertion. First, if a particular condition of confinement violates the Eighth Amendment,

8 it necessarily violates the Fifth Amendment. Id. Conditions that do not violate the Eighth

9 Amendment, however, may nonetheless violate the Fifth. Second, civil detainees may not

10 be subjected to conditions “intended to punish” or “excessive in relation to [their non-

11 punitive] purpose” or “employed to achieve objectives that could be accomplished in so

12 many alternative and less harsh methods.” Id. at 932–34 (citations omitted). Third, if

13 civil detainees are confined under conditions inferior to pretrial detainees or the

14 involuntarily committed—and of course the criminally convicted—those conditions are

15 presumptively punitive and unconstitutional. Id. at 933. Fourth, “to prevail on a

16 Fourteenth [or Fifth] Amendment claim regarding conditions of confinement, the confined

17 individual need not prove ‘deliberate indifference’ on the part of government officials.”

18 Id. at 934.

19

2. Failure to Provide Beds and Deprivation of Sleep

20

Detention facilities (and prisons) must provide detainees held overnight with beds

21 and mattresses. The absence of either violates detainees’ due process rights.

22 Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989); accord Anela v.

23 City of Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986). Indeed, the use of floor

24 mattresses—i.e., mattresses without bed frames—is unconstitutional “without regard to

25 the number of days a prisoner is so confined.” Lareau v. Manson, 651 F.2d 96, 105 (2d

26 Cir. 1981). Photographs demonstrate that floor sleeping is ubiquitous in Tucson Sector

27 hold rooms (Vail Decl. ¶¶ 32, 33, 47, 52, 59, 73), despite Defendants’ policy that “hold

28 rooms are not designed for sleeping” (Ex. 81 at USA000091.) While Plaintiffs’ claim

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1 succeeds on this ground alone, other conditions compound the problem.

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First, hold rooms are overcrowded, forcing Plaintiffs to sleep next to toilets, sitting

3 upright, and packed together head to toe:

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16 (Ex. 188; Vail Decl. ¶¶ 32-33, 47, 52.) One detainee, who gave his spot on the floor to an

17 injured man, was one of fifteen people forced to stand all night. (Vail Decl. ¶ 35.)

18 Requiring detainees to sleep in shifts is not only inhumane and punitive, it has been

19 roundly condemned by the U.S. government when it occurs in Ukraine, Haiti, and other 20 countries.8 A strikingly analogous situation was condemned as unconstitutional by the

21 court in Bowers v. City of Philadelphia, No. 06-CV-3229, 2007 WL 219651 (E.D. Pa. Jan.

22 25, 2007). There, “[b]ecause of the overcrowded conditions . . . detainees were forced to

23 sleep overlapping one another and on every inch of the concrete floors [and] huddled with

24 their heads next to the toilets [and] on metal benches . . . if there was room.” Id. at *10,

25 *24; see also id. at *35 (issuing preliminary injunction). On this basis, too, Plaintiffs are

26 likely to succeed on the merits of their due process claims.

27

8Report on Int’l Prison Conditions, U.S. Dep’t of State, May 22, 2013, available at

28 http://www.state.gov/j/drl/rls/209944.htm.

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Second, there is constant noise throughout the night. (Vail Decl. ¶¶ 65-66.) Courts

2 have held that sleep-interrupting noise constitutes a due process violation. Toussaint v.

3 McCarthy, 597 F. Supp. 1388, 1409–10 (N.D. Cal. 1984), aff’d in part, rev’d in part on

4 other grounds, 801 F.2d 1080, 1110 (9th Cir. 1986); accord Antonelli v. Sheahan, 81 F.3d

5 1422, 1433 (7th Cir. 1996) (“noise [that] occur[s] every night, often all night, interrupting

6 or preventing . . . sleep” gives rise to due process claim). Third, hold cells are constantly

7 illuminated. (ECF No. 39-1, Ex. 1 ¶ 8.) This, too, violates due process—particularly

8 where, as here, the light interferes with sleep. Keenan v. Hall, 83 F.3d 1083, 1090 (9th

9 Cir. 1996), amended on other grounds, 135 F.3d 1318 (9th Cir. 1998) (“[T]here is no

10 legitimate penological justification for requiring [inmates] to suffer physical and

11 psychological harm by living in constant illumination. That practice is

12 unconstitutional.”); King v. Frank, 328 F. Supp. 2d 940, 946–47 (W.D. Wis. 2004)

13 (constant illumination leading to sleep deprivation may violate Eighth Amendment).

14

Together these and other conditions, including failure to provide adequate warmth,

15 infra, deprive Plaintiffs of sleep, in violation of their Fifth Amendment due process rights.

16 Such failures are not driven by necessity. In many instances, Defendants have unused

17 hold rooms that could be used to alleviate overcrowding in adjacent rooms, but which

18 Defendants choose not to use:

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14 15 (Ex. 170.)

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3. Failure to Provide Warmth

17

While temperatures in Tucson Sector hold rooms are supposed to range from 68 to

18 72 degrees Fahrenheit (e.g., Ex. 115 at USA01896 (“Cell temps checked [68-72

19 degrees]?”)), Defendants’ own logs indicate that hold room temperatures drop as low as

20 58.8 degrees (Ex. 111 at USA01461), while others register 62 degrees with “[m]ultiple

21 subjects complaining that it is cold” (Ex. 114 at USA01838-39).

22

58.8 degrees is cold even to the fully clothed, which detainees are not because

23 Defendants routinely and systematically confiscate their outer layers of clothing upon

24 intake. (Vail Decl. ¶ 104.) Despite their legal “obligation to ensure that [detainee]

25 clothing is adequate,” Defendants do not replace confiscated clothing. Toussaint, 597 F.

26 Supp. at 1411 (citation omitted). Instead, Defendants give—or at least are supposed to

27 give—detainees a single Mylar sheet (ECF No. 39-1, Ex. 1 ¶ 15), though in practice some

28 detainees get nothing (Vail Decl. ¶¶ 55, 106). Regardless, these Mylar sheets do little to

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1 protect detainees against the cold (Id. ¶¶ 55, 106, 107; Powitz Decl. ¶ 101), especially

2 since these paper-thin sheets are all that stands between detainees and a concrete bench,

3 floor, or wall. See United States v. Wilson, 344 F. App’x 134, 137, 143 (6th Cir. 2009)

4 (cell furnished with only concrete bench and concrete floors stated Eighth Amendment

5 claim for subjection to cold).

6

This combination of concrete and metal furnishings and Defendants’ failure to

7 provide proper blankets and “clothing that is at least minimally adequate for the

8 conditions under which [Plaintiffs] are confined,” Knop v. Johnson, 667 F. Supp. 467,

9 475–77 (W.D. Mich. 1987), aff’d in pertinent part, 977 F.2d 996, 1012 (6th Cir. 1992),

10 unconstitutionally deprives Plaintiffs of warmth, Henderson v. DeRobertis, 940 F.2d

11 1055, 1059 (7th Cir. 1991), cert. denied, 503 U.S. 966 (1992). Plaintiffs’ are likely to

12 succeed on their claim for deprivation of warmth.

13

Moreover, Defendants’ punitive use of hold room temperature—despite the clear

14 statement in the TEDS standard that “[u]nder no circumstances will officers/agents use

15 temperature controls in a punitive manner” (Ex. 95 at USA000633)—also violates

16 Plaintiffs’ due process rights. Specifically, agents lower hold room temperatures to

17 punish detainees who speak to one another or who request that cell temperatures be raised.

18 (Vail Decl. ¶ 108; Powitz ¶ 100.) Because civil detainees may not be punished, any

19 punishment is per se a due process violation. Jones, 393 F.3d at 934. Plaintiffs are also

20 likely to succeed on the merits of their constitutional claim on this alone.

21

4. Failure to Provide a Safe and Sanitary Environment

22

“A sanitary environment is a basic human need that a penal institution must

23 provide for all inmates.” Toussaint, 597 F. Supp. at 1411. This obligation attaches all the

24 more for institutions of civil confinement like Border Patrol’s Tucson Sector stations.

25

The right to a sanitary environment includes a “right to personal hygiene supplies

26 such as toothbrushes and soap,” Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), and

27 to “sanitary napkins for female prisoners,” Atkins v. County of Orange, 372 F. Supp. 2d

28 377, 406 (S.D.N.Y. 2005); see also Dawson v. Kendrick, 527 F. Supp. 1252, 1288–89

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1 (S.D. W.Va. 1981) (“The failure to regularly provide prisoners with clean bedding,

2 towels, clothing and sanitary mattresses, as well as toilet articles including soap, razors,

3 combs, toothpaste, toilet paper, access to a mirror and sanitary napkins for female

4 prisoners constitutes a denial of personal hygiene and sanitary living conditions.”).

5 Detainees, however, are routinely and systematically denied soap (Vail Decl. ¶¶ 117,

6 122)—a denial that is formalized in Defendants’ own policies and procedures (Ex. 95 at

7 USA000634). They also are routinely and systematically denied sanitary napkins and

8 diapers for babies and small children (Vail Decl. ¶ 125), both of which Defendants

9 concede they are obligated to provide (Ex. 95 at USA000634), as well as toothbrushes and

10 toothpaste. And they are routinely and systematically denied access to showers and hot

11 running water—deprivations that have been deemed unconstitutional for “the most

12 antisocial and violent of the inmates” in California’s prison system, Toussaint, 597 F.

13 Supp. at 1394, 1411, but which Defendants regularly impose on ill, pregnant, and juvenile

14 immigrants.

15

Lacking access to soap and warm water, detainees are unable to wash their hands

16 before eating or after using the toilet. (Powitz Decl. ¶ 64; Vail Decl. ¶ 122.) This

17 significantly increases the likelihood that infectious diseases common to prisons and other

18 custodial institutions will be transmitted among detainees. (Powitz Decl. ¶¶ 54, 64, 70,

19 71, 89; Vail Decl. ¶ 122); see also Bowers v. City of Philadelphia, 2007 WL 219651, at

20 *15 (describing likely spread of disease under conditions of confinement akin to those in

21 Tucson Sector hold rooms). Plaintiffs need not, of course, wait until they contract a

22 communicable disease to seek relief: the Eighth (and therefore Fifth) Amendment

23 “protects against future harm of inmates.” Helling v. McKinney, 509 U.S. 25, 33 (1993);

24 accord Lareau v. Manson, 651 F.2d at 109 (“it is unnecessary to require evidence that an

25 infectious disease has actually spread in an overcrowded jail before issuing a remedy.”).

26 Indeed, pretrial detainees have a constitutional right “to receive necessary and proper

27 personal hygiene items as preventative of future medical and physical harm.” Board v.

28 Farnham, 394 F.3d 469, 482 (7th Cir. 2005).

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1

The right to a sanitary environment also includes access to functioning toilets,

2 which must be made available in reasonable proportion to the total number of detainees.

3 In Fischer v. Winter, a ratio of 15 detainees to one toilet was deemed constitutionally

4 insufficient. 564 F. Supp. 281, 297, 302 (N.D. Cal. 1983). But that is precisely the ratio

5 mandated by Defendants’ policy, Exhibit 81 at USA000090 (noting requirement of “1

6 toilet per 15 detainees”), and, in practice, the situation is far worse: In some hold rooms,

7 over 40 detainees were forced to share one toilet (Vail Decl. ¶ 51; Powitz Decl. ¶ 52).

8

Although “[n]o one in civilized society should be forced to live under conditions

9 that force exposure to another person’s bodily wastes,” Gates v. Cook, 376 F.3d 323, 334

10 (5th Cir. 2004), such exposure is not uncommon in Tucson Sector hold rooms. (Vail

11 Decl. ¶¶ 32, 51, 52.) Cleaning is infrequent and irregular; hold rooms lack cleaning

12 supplies and often trash cans (Vail Decl. ¶ 52; Powitz Decl. ¶¶ 27-31, 90), which are

13 routinely removed from hold rooms for “safety reasons” (ECF No. 39-1, Ex. 1 ¶ 14).

14

The unsanitary conditions of confinement in Tucson Sector hold rooms are not

15 only inhumane, but also inimical to detainees’ physical health. (Powitz Decl. ¶ 31, 39, 40,

16 41, 50, 70, 71, 89.) Because such sanitary deprivations have been “found to be cruel and

17 unusual under contemporary standards of decency,” Young v. Quinlan, 960 F.2d 351, 364

18 (3rd Cir. 1992) (emphasis added), Plaintiffs are substantially likely to demonstrate that

19 these deprivations violate due process.

20

5. Failure to Provide Adequate and Sufficient Food

21

Prison officials are “obligat[ed] to provide inmates with nutritionally adequate

22 meals on a regular basis.” Foster v. Runnels, 554 F.3d 807, 816 (9th Cir. 2009).

23 Defendants’ own regulations formalize this and other requirements: adults must be given

24 food at mealtimes and snacks in between (Ex. 95 at USA000635); juveniles and pregnant

25 women must receive additional food and must receive it more often (id. at USA000639).

26 To ensure that Defendants adhere to these requirements, they are obligated to document

27 “[a]ll meal service . . . in the appropriate electronic system(s) of record.” (Ex. 95 at

28 USA000635.)

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Defendants’ electronic system of record—the so-called “e3DM” data—

2 demonstrates that Defendants fail not only to abide by their own regulations, but also by

3 minimal constitutional standards. Defendants regularly fail to feed detainees, sometimes

4 for over 24 hours at a time. (Gaston Decl. ¶¶ 44, 45, 49). When detainees are fed, they

5 receive for every meal and every snack some combination of a microwavable burrito,

6 juice, and crackers. (Id. ¶¶ 41, 46; Vail Decl. ¶¶ 90, 91, 92, 93, 101). This diet—sporadic

7 as it is—is neither nutritionally adequate nor “well-balanced,” Smith v. Sullivan, 553 F.2d

8 373, 379–380 (5th Cir. 1977) (articulating requirement); and is comparable to, if not

9 nutritionally worse than, diets that courts have found inadequate in prisons, Campbell v.

10 Cauthron, 623 F.2d 503, 508 (8th Cir. 1980) (finding inadequate “two sweet rolls and

11 coffee for breakfast, and frozen ‘TV’ dinners for the noon and evening meals”). No

12 wonder, then, that Plaintiffs testify to being constantly hungry. (Vail Decl. ¶ 94.)

13

As with hold-room temperature, Defendants use food punitively. (Id. ¶ 100-101.)

14 This violates Defendants’ own policies (Ex. 95 at USA00635 (“[f]ood and water should

15 never be used as a reward, or withheld as punishment”)), and it violates the Constitution,

16 Jones, 393 F.3d at 932–34. Plaintiffs are likely to succeed on the merits of their claim.

17

6. Failure to Provide Potable Water

18

Defendants own regulations require that “[f]unctioning drinking fountains or clean

19 drinking water along with clean drinking cups must always be available to detainees.”

20 (Ex. 95 at USA00635.) Access to adequate water is likewise protected by the

21 Constitution. Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996).

22

Detainees in Tucson Sector stations are regularly and systematically denied

23 adequate drinking water because hold room drinking fountains or “bubblers” do not

24 function properly (when they function at all) and detainees are given no substitute. (Vail

25 Decl. ¶¶ 76-85; Powitz Decl. ¶ 85.) Just as often, hold rooms have water, but detainees

26 are not given clean cups (Vail Decl. ¶¶ 77, 79, 81; Powitz Decl. ¶ 75), forcing them to

27 share drinking cups or other receptacles (Vail Decl. ¶¶ 77, 80-82). In other words,

28 detainees either receive insufficient potable water or they are presented with a “Hobson’s

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1 choice” between water contaminated with the bodily fluids of other detainees and no

2 water at all. Forcing detainees to share drinking cups threatens detainee health; this risk is

3 exacerbated by Defendants’ failure to medically screen incoming detainees ((Powitz Decl.

4 ¶ 78, 80); see infra IV.A.7). Helling v. McKinney, 509 U.S. at 33–34 (Eighth Amendment

5 protects against future harm posed by unsafe drinking water). The absence of potable

6 water and clean drinking cups violates the Constitution. Plaintiffs are likely to succeed on

7 this claim as well.

8

7. Failure to Provide Adequate Medical Screening and Care

9

Chief Padilla testified that “Tucson Sector takes the health and safety of aliens

10 within their custody seriously.” (ECF No. 39-1, Ex. ¶ 15.) Not true.

11

First, Defendants fail to medically screen incoming detainees, despite clear case

12 law in this and other Circuits that denying, delaying, or mismanaging intake screening

13 violates the Constitution. Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1188–90 (9th

14 Cir. 2002); Lareau v. Manson, 51 F.2d at 109. This affirmative duty to screen applies

15 both to short-term detention facilities housing civil detainees and to penitentiaries housing

16 convicts. Graves v. Arpaio, 48 F. Supp. 3d 1318, 1340–1344 (D. Ariz. 2014) (jail);

17 Madrid v. Gomez, 889 F. Supp. 1146, 1257 (N.D. Cal. 1995) (prison).

18

Yet in most cases “medical screening” in Tucson Sector stations is conducted—if

19 and when it is conducted—by border patrol agents “in the field,” not by a nurse, doctor, or

20 other qualified or specially trained personnel. (ECF No. 39-1, Ex. 1 ¶ 9; Vail Decl.

21 ¶¶ 138, 139.) Defendants’ own policies confirm this: “If an officer/agent suspects . . . that

22 a detainee may have a contagious disease, the detainee should be separated whenever

23 operationally feasible.” (Ex. 95 at USA00634 (emphasis added).) This contradicts both

24 commonly accepted standards in similar facilities throughout the nation (Goldenson Decl.

25 ¶¶ 12-17; 24-30), as well as the constitutional minimum courts have required court orders

26 in similar cases. See, e.g., Graves, 48 F. Supp. 3d at 1340. Beyond Defendants’ written

27 policies, numerous detainees have declared that their attempts to obtain medical attention

28 for injuries that occurred prior to apprehension were rebuffed by the agents executing

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1 Defendants’ medical screening “policy.”

2

Second, Defendants fail to maintain a medical treatment program capable of

3 “responding to emergencies” that arise after detainees are placed in the holding cells.

4 Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by

5 Sandin v. Conner, 515 U.S. 472 (1995); see also Shorter v. Baca, -- F. Supp. 3d. --, No.

6 12-cv-7337-DOC, 2015 WL 1809282, at *16 (C.D. Cal. Apr. 21, 2015) (jail officials

7 violated Eighth (and thus Fifth) Amendment by denying pretrial detainee emergency

8 dental care); cf. Estate of Prasad ex rel. Prasad v. County of Sutter, 958 F. Supp. 2d 1101,

9 1114 (E.D. Cal. 2013) (failure to maintain around-the-clock medical personnel in jail

10 constitutes deliberate indifference). By law, Defendants must permit detainees “to make

11 their medical problems known to the medical staff” in the detention facility and such staff

12 must be “competent to deal with the [detainees’] problems.” Hoptowit, 682 F.2d at 1253.

13 Such around-the-clock access to medical staff is standard throughout similar facilities.

14 (Goldenson Decl. ¶¶ 13, 16.)

15

Third, Defendants’ practice of confiscating incoming detainees’ medication,

16 creates an impermissible and heightened risk that detainees will experience a medical

17 emergency. Hernandez v. County of Monterey, -- F. Supp. 3d. --, No. 5:13-CV-2354-

18 PSG, 2015 WL 3868036, at *17 (N.D. Cal. Apr. 14, 2015). It is standard in similar

19 detention facilities through the United States to have in place a policy maximizing a

20 detainee’s ability to continue prescribed medication. (Goldenson Decl. ¶ 47.) Numerous

21 courts have held that such efforts are constitutionally required in the jail setting.

22 Hernandez, 2015 WL 3868036, at *12 (“It is critical for correctional facilities to maintain

23 continuity of treatment for newly admitted inmates.”); Graves, 48 F. Supp. 3d at 1341

24 (reviewing procedures implemented under court order to ensure that arriving detainees are

25 promptly continued on prescription medications); cf. Wakefield v. Thompson, 177 F.3d

26 1160, 1164–65 (9th Cir. 1999) (prison officials violate Eighth Amendment by failing to

27 supply, at time of release into the community, a prisoner with sufficient medication to

28 permit him to consult with community-based doctor). Accordingly, Plaintiffs are likely to

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1 succeed on their claim that Defendants’ denial of adequate medical screening and care

2 violates their due process rights.

3

B. Plaintiffs are Likely to Succeed on Their Claim That Defendants Have

Failed to Enforce Mandatory Statements of Policy. 4

1. Governing Law 5

6

A party can sue under the APA to compel an agency to abide by its own statement

7 of policy when such a statement constitutes “agency action.” 5 U.S.C. § 706(1) (requiring

8 court to “compel agency action unlawfully withheld or unreasonably delayed.”).

9 “‘[A]gency action’ is defined in [5 U.S.C.] § 551(13) to include ‘the whole or a part of an

10 agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure

11 to act.’” Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004). The APA defines the

12 term “rule” as “an agency statement of . . . future effect designed to implement, interpret,

13 or prescribe law or policy.” 5 U.S.C. § 551(4). An agency statement that meets this

14 definition constitutes agency action. See, e.g., Defenders of Wildlife v. Tuggle, 607 F.

15 Supp. 2d 1095, 1114 (D. Ariz. 2009) (Bury, J.) (agency’s “Standard Operating Procedure”

16 was a “rule” under APA).

17

Such a statement has the force and effect of law, and can be enforced under the

18 APA, when it (1) prescribe[s] substantive rules—not interpretive rules, general statements

19 of policy or rules of agency organization—and (2) conforms to certain procedural

20 requirements. River Runners for Wilderness v. Martin, 593 F.3d 1064, 1071 (9th Cir.

21 2010) (citation omitted). “To satisfy the first requirement, the rule must be legislative in

22 nature, affecting individual rights and obligations; to satisfy the second, it must have been

23 promulgated pursuant to a specific statutory grant of authority and in conformance with

24 the procedural requirements imposed by Congress.” Id.

25

The TEDS standard constitutes a “rule” and enforceable guidance under the River

26 Runners standard. It is “an agency-wide policy that sets forth the first nationwide

27 standard which govern CBP’s interaction with detained individuals. . . . In addition to

28 transport, escort, detention and search provisions, TEDS also includes requirements

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1 related to: sexual abuse and assault prevention and response; care of at-risk individuals in

2 custody; and personal property.” (Ex. 95 at USA00620.) Each and every one of these

3 “requirements” affects the individual rights of all detainees in Border Patrol stations,

4 including—but certainly not limited to—their right to “bodily integrity.” Albright v.

5 Oliver, 510 U.S. 266, 272 (1994). It also sets out agency and CBP agent obligations.

6 (Ex. 95 at USA00621, USA00626, USA00633 (CBP agents must, inter alia, “perform

7 their duties in a non-discriminatory manner,” “safeguard detainees during a search,” and

8 “grant detainees telephone access.”).) Finally, it states specifically the statutory,

9 regulatory and other authority under which it was promulgated. (Id. at USA000620.) It

10 clearly satisfies the River Runner standard.

11

2. Defendants Fail to Abide by the TEDS Standards.

12

Having formalized their inhumane and punitive practices, Defendants fail even to

13 meet the modest goals articulated in the TEDS standards, much less the preceding 2008

14 Policy. (Vail Decl. ¶ 72.) Defendants are obligated to provide “clean bedding . . . to

15 juveniles” (Ex. 95 at USA00634), “clean drinking cups” (id. at USA00635), and “toilet

16 paper and sanitary napkins” (id. at USA00634). But Defendants fail to do so. (Vail Decl.

17 ¶¶ 51, 77, 79, 80, 81, 125; Powitz Decl. ¶¶ 60, 75.) Defendants are obligated to an

18 “maintain hold room temperature within a reasonable and comfortable range.” (Ex. 95 at

19 USA00633.) But Defendants fail to do so. (Vail Decl. ¶¶ 107, 108; Powitz Decl. ¶¶ 91,

20 95, 96, 101, 102, 105.) Defendants are obligated to “regularly and professionally clean[]

21 and sanitize[]” hold cells. (Ex. 95 at USA00633.) But Defendants fail to do so. (Vail

22 Decl. ¶ 52, Powitz Decl. ¶¶ 18, 23, 29, 30, 32, 42, 90.) Defendants are obligated to make

23 drinking water “always . . . available” and provide meals regularly. (Ex. 95 at

24 USA00635.) But Defendants fail to do so. (Vail Decl. ¶ 152.) Finally, although

25 Defendants may not “use temperature controls in a punitive manner” (Ex. 95 at

26 USA00633), and use “[f]ood and water . . . as punishment” (id. at USA00635), this is

27 precisely what Defendants do (Vail Decl. ¶¶ 100, 108; Powitz Decl. ¶ 100).

28

Plaintiffs are likely to succeed on the merits of their claim that Defendants are

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1 obligated but fail to enforce certain minimal standards related to Plaintiffs’ detention.

2

C. Plaintiffs Will Suffer Irreparable Harm If This Court Does Not Grant

An Injunction. 3

4

“It is well established that the deprivation of constitutional rights ‘unquestionably

5 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)

6 (citation omitted); Majors v. Jeanes, 48 F. Supp. 3d 1310, 1317 (D. Ariz. 2014) (same).

7 Where, as here, a movant demonstrates a likelihood of success on a constitutional claim,

8 “it follows . . . ‘that irreparable harm is likely, not just possible’ in the absence of

9 preliminary injunctive relief.” Rodriguez v. Robbins, 715 F.3d 1127, 1144–45 (9th Cir.

10 2013) (citation omitted). Having shown a constitutional deprivation, Plaintiffs need

11 establish nothing else: “‘[W]hen an alleged deprivation of a constitutional right is

12 involved, most courts hold that no further showing of irreparable [harm] is necessary.’”

13 Pure Wafer, Inc. v. City of Prescott, 14 F. Supp. 3d 1279, 1302 (D. Ariz. 2014) (citation

14 omitted).

15

Lest there be any doubt, however, the harm to Plaintiffs—which includes suffering,

16 risk of exposure to disease, the denial of food, medicine, and other necessities—is

17 manifestly irreparable. Hernandez, 2015 WL 3868036, at *15 (holding that suffering, risk

18 of tuberculosis, and no medical access constitutes irreparable harm); Harris v. Bd. of

19 Supervisors, L.A. Cty., 366 F.3d 754, 766 (9th Cir. 2004) (same for pain, infection,

20 medical complications); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1121 (N.D. Cal. 2009)

21 (same for denial of food, medication, and other necessities).

22

Defendants’ apparent reluctance to acknowledge, much less remedy, the conditions

23 in Tucson Sector stations makes it not just likely but certain that the irreparable harm will

24 continue. Zepeda v. U.S. INS, 753 F.2d 719, 727 (9th Cir. 1984). Defendants’ statements

25 to this Court that Tucson Sector stations are “short-term facilities” ignores reality (ECF

26 No. 52 at 2), and demonstrates that Defendants do not intend to change their ways absent

27 an order from this Court. Indeed, all that Defendants have done is formalize their

28 policies—a transparent, but unsuccessful attempt at post hoc “legalization.”

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1

D. The Balance of Equities Tips Sharply in Plaintiffs’ Favor.

2

This Court “‘must balance the competing claims of injury and must consider the

3 effect on each party of the granting or withholding of the requested relief.’” Winter v.

4 Nat. Res. Def. Counsel, 555 U.S. 7, 24 (2008) (citation omitted). Here, the answer is

5 clear: the harm to Plaintiffs’ outweighs any conceivable hardship to Defendants.

6

Detained individuals continue to be harmed by the deprivation of sleep, warmth,

7 adequate food and water. The health risk posed by the lack of medical screening, soap,

8 and clean hold rooms alone tips against any administrative government hardship. On

9 Plaintiffs’ side is their physical well-being and human dignity; on Defendants’ is some 10 speculative and relatively minimal financial or administrative burden. “[F]aced with [ ] a 11 conflict between financial concerns and preventable human suffering, [the court has] little

12 difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” 13 Harris, 366 F.3d at 766 (alterations in original) (citation omitted); accord Rosado v. 14 Alameida, 349 F. Supp. 2d 1340, 1348 (S.D. Cal. 2004) (“When adjudicating a

15 preliminary injunction motion, the Ninth Circuit expects lower courts to protect physical

16 harm to an individual over monetary costs to government entities.”).

17

Defendants’ hardship, moreover, is really no hardship at all, because Defendants

18 are already required to follow the Constitution. “[The government] cannot suffer harm

19 from an injunction that merely ends an unlawful practice or reads a statute as required to 20 avoid constitutional concerns.” Rodriguez, 715 F.3d at 1145; see also Zepeda, 753 F.2d at 21 727 (“[T]he INS cannot reasonably assert that it is harmed in any legally cognizable sense

22 by being enjoined from constitutional violations.”). When the government’s so-called 23 burden is weighed against the “the major hardship posed by needless prolonged detention” 24 of immigrants, the balance tips toward an injunction. Rodriguez, 715 F.3d at 1145.

25

E. A Preliminary Injunction Serves the Public Interest.

26

“The public interest inquiry primarily focuses on the impact on non-parties, as

27 opposed to parties.” Friendly House v. Whiting, 846 F. Supp. 2d 1053, 1062 (D. Ariz.

28 2012) (citation omitted). How our own government treats immigrants concerns us all,

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1 including—if we are to believe what it has said publicly—the government itself.

2

The Supreme Court has articulated, and the Ninth Circuit has reaffirmed, “the

3 highest public interest in the due observance of all the constitutional guarantees.” U.S. v.

4 Raines, 362 U.S. 17, 27 (1960); Melendres, 695 F.3d at 1002 (“it is always in the public

5 interest to prevent the violation of a party's constitutional rights”). Stopping Defendants’

6 mistreatment of immigrants in government-operated detention facilities in Arizona serves

7 the public interest. And so does “a preliminary injunction that ensures that federal statutes

8 are construed and implemented in a manner that avoids serious constitutional questions.”

9 Rodriguez, 715 F.3d at 1146. The preliminary injunction sought here would merely

10 guarantee that Defendants cease to interpret and execute their authority to act under color

11 of federal law in ways that violate the Fifth Amendment.

12

Defendants, moreover, can claim no public interest in denying immigrants the

13 minimal civilized measure of life’s necessities—in denying them sleep, warmth, medical

14 care, food and water. While the public has an interest in “assuring that public funds are

15 appropriately expended,” there is nothing “inappropriate” about ensuring that detained

16 individuals are not mistreated. Rosado, 349 F. Supp. 2d at 1348–49. To the contrary,

17 where, as here, the fisc is balanced against preventable constitutional harm, the latter must

18 prevail, id. at 1349. Likewise for government claims of “security,” Jordan v. Gardner,

19 986 F.2d 1521, 1527 (9th Cir. 1993), and “logistical difficult[y],” Rodriguez, 715 F.3d at

20 1146.

21

An injunction is in the public interest.

22 V. 23

CONCLUSION For the foregoing reasons, Plaintiffs respectfully ask this Court to enjoin

24 Defendants, their agents and their employees from detaining Plaintiffs and putative class

25

26

27

28

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1 members under conditions that are punitive, inhumane, and unconstitutional pending final

2 resolution of this suit.

3

4 Dated: December 4, 2015 5 6 7 8 9 10 11

By: /s/ Harold J. McElhinny
Harold J. McElhinny* Kevin M. Coles* Elizabeth Balassone* MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Email: HMcElhinny@mofo.com Email: KColes@mofo.com

12 Colette Reiner Mayer*

13

MORRISON & FOERSTER LLP

755 Page Mill Road

14

Palo Alto, CA 94304-1018

15

Telephone: (650) 813-5600

Facsimile: (650) 494-0792

16

Email: CRMayer@mofo.com

17

Louise C. Stoupe*

18

Pieter S. de Ganon*

MORRISON & FOERSTER LLP

19

Shin-Marunouchi Building, 29th Floor

20

5-1, Marunouchi 1-Chome

Tokyo, Chiyoda-ku 100-6529, Japan

21

Telephone: +81-3-3214-6522

22

Facsimile: +81-3-3214-6512 Email: LStoupe@mofo.com

23

Email: PdeGanon@mofo.com

24

25

26

27

28

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1

Linton Joaquin*

2

Karen C. Tumlin* Nora A. Preciado*

3

NATIONAL IMMIGRATION LAW CENTER

3435 Wilshire Boulevard, Suite 2850

4

Los Angeles, CA 90010

5

Telephone: (213) 639-3900

Facsimile: (213) 639-3911

6

Email: joaquin@nilc.org

7

Email: tumlin@nilc.org Email: preciado@nilc.org

8

Mary Kenney*

9

Emily Creighton*

10

Melissa Crow*

AMERICAN IMMIGRATION COUNCIL

11

1331 G Street NW, Suite 200

12

Washington, DC 20005 Telephone: (202) 507-7512

13

Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org

14

Email: ecreighton@immcouncil.org

15

Email: mcrow@immcouncil.org

16

Victoria Lopez (Bar No. 330042)**

17

Daniel J. Pochoda (Bar No. 021979) James Duff Lyall (Bar No. 330045)**

18

ACLU FOUNDATION OF ARIZONA

3707 North 7th Street, Suite 235

19

Phoenix, AZ 85014

20

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

21

Email: vlopez@acluaz.org

Email: dpochoda@acluaz.org

22

Email: jlyall@acluaz.org

23

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25

26

27

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1

Travis Silva*

2

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA

3

131 Steuart Street, Suite 400

San Francisco, CA 94105

4

Telephone: (415) 543-9444

5

Facsimile: (415) 543-0296

Email: tsilva@lccr.com

6

7

Attorneys for Plaintiffs

8 * Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

9

** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

10

11

12

13

14

15

16

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18

19

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21

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1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10 Jane Doe #1; Jane Doe #2; Norlan Flores, on behalf of themselves and all others
11 similarly situated,

Case No. 4:15-cv-00250-TUC-DCB

12

Plaintiffs,

[PROPOSED] ORDER GRANTING

13

v.

PRELIMINARY INJUNCTION

14 Jeh Johnson, Secretary, United States Department of Homeland Security, in his

CLASS ACTION (Assigned to the

15 official capacity; R. Gil Kerlikowske, Commissioner, United States Customs &

Honorable David C. Bury)

16

Border Protection, in his official capacity; Michael J. Fisher, Chief of the United States

Action Filed: June 8, 2015

17 Border Patrol, in his official capacity; Jeffrey Self, Commander, Arizona Joint

18 Field Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent-

19 Tucson Sector, in his official capacity,

20

Defendants.

21

22

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1

The Court, having considered Plaintiffs’ Motion for Preliminary Injunction, and

2 finding that good cause appears, orders as follows:

3

1. Defendants, their agents and all persons acting in concert with them

4 (“Defendants”) shall not hold persons for longer than 12 hours (“Detainee(s)”) in

5 detention cells, search rooms or interview rooms (“Hold Rooms”) located in the Tucson

6 sector under any of the following conditions:

7

a) The Hold Rooms do not have a clean bed, mattress, blanket and

8

pillow for each Detainee;

9

b) The Hold Rooms are constantly illuminated;

10

c) The Hold Rooms fail to provide an environment enabling sleep due

11

to excessive noise;

12

d) The Hold Rooms fail to provide a minimum square footage of 35sq

13

ft. of unencumbered space per occupant (unencumbered is usable

14

space that is not encumbered by fixtures or furnishings).

15

e) The Hold Rooms fail to provide adequate toilets, specifically a

16

minimum of 1 toilet per 12 male Detainees and 1 toilet per 8 female

17

Detainees;

18

f) There is insufficient soap for daily use by every Detainee;

19

g) There is insufficient toilet paper for daily use by every Detainee;

20

h) There is not one clean towel for regular use by each Detainee;

21

i) The Hold Rooms are dirty or unsanitary;

22

j) There are not sufficient supplies of toothbrushes and toothpaste for

23

each Detainee for daily use;

24

k) There are not sufficient feminine hygiene products for every female

25

Detainee;

26

l) There are not sufficient diapers, wipes, formula or baby food for

27

daily use by Detainees under the age of four;

28

[PROPOSED] ORDER GRANTING PRELIMINARY INJUNCTION

1

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1

m) There are not sufficient facilities to enable every Detainee to shower

2

himself or herself in a hot shower with soap and a towel at least once

3

per day;

4

n) The Hold Rooms do not have sufficient and accessible potable water

5

for all Detainees, either in the form of a clean, working drinking

6

fountain or some other source that allows the water to be easily

7

collected in a cup;

8

o) There are not sufficient paper cups for daily use by every Detainee;

9

p) The Hold Rooms are uncomfortably cold: Defendants shall provide

10

sufficient clothing to ensure that Detainees are not unduly cold while

11

in the Hold Rooms;

12

q) Defendants do not provide every Detainee with nutritionally adequate

13

meals with a diversified and varying menu on a daily basis;

14

r) The Hold Rooms contain persons that have not been medically

15

screened upon entry into a facility by medically trained personnel or

16

an emergency medical technician, paramedic, physician, physician’s

17

assistant, or nurse practitioner (“medically qualified personnel”);

18

s) Detainees lack access to medically qualified personnel available to

19

examine all requesting or ill Detainees on a timely basis; or

20

t) Defendants do not permit or enable Detainees to continue to take

21

their prescription medications that have been approved by medically

22

qualified personnel in the United States or elsewhere, or that are

23

contained in a properly identified container with the specific dosage

24

indicated.

25

2. Named defendants shall file a comprehensive report with the Court

26 describing, for each Station in the Tucson Sector, Defendants’ compliance with each

27 paragraph of this order and any areas of less than full compliance with the reasons and

28 date of planned compliance (“Compliance Report”). The Compliance Report shall

[PROPOSED] ORDER GRANTING PRELIMINARY INJUNCTION

2

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1 contain sufficient information and detail to enable this Court to evaluate Defendants’

2 compliance with this order. A copy of the Compliance Report shall also be served on

3 Plaintiffs. The first Compliance Report is due one month from the date of this order and

4 shall be filed and served by Defendants every month thereafter.

5

6 IT IS SO ORDERED.
7

8

9 Dated: ____________________ 10

HON. DAVID C. BURY United States District Judge

11

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[PROPOSED] ORDER GRANTING PRELIMINARY INJUNCTION

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1 Harold J. McElhinny* Kevin M. Coles*
2 Elizabeth G. Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: HMcElhinny@mofo.com Email: KColes@mofo.com
6 Email: EBalassone@mofo.com

7 Attorneys for Plaintiffs

8 * Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

9 Additional counsel listed on next page

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

14 Jane Doe #1; Jane Doe #2; Norlan Flores,

Case No. 4:15-cv-00250-TUC-DCB

on behalf of themselves and all others

15 similarly situated,

Plaintiffs,

16

v.

DECLARATION OF ELDON VAIL IN SUPPORT OF PLAINTIFFS’

17 Jeh Johnson, Secretary, United States Department of Homeland Security, in his

MOTION FOR PRELIMINARY INJUNCTION

18 official capacity; R. Gil Kerlikowske,

Commissioner, United States Customs &

19 Border Protection, in his official capacity;

Michael J. Fisher, Chief of the United States 20 Border Patrol, in his official capacity;

Jeffrey Self, Commander, Arizona Joint 21 Field Command, in his official capacity;

Manuel Padilla, Jr., Chief Patrol Agent22 Tucson Sector, in his official capacity,

23

Defendants.

24

25

26

27

28

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1 Colette Reiner Mayer* MORRISON & FOERSTER LLP
2 755 Page Mill Road Palo Alto, CA 94304-1018
3 Telephone: (650) 813-5600 Facsimile: (650) 494-0792
4 Email: CRMayer@mofo.com
5

Travis Silva* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: tsilva@lccr.com

6 Louise C. Stoupe*

Pieter S. de Ganon*

Victoria Lopez (Bar No. 330042)**

7 MORRISON & FOERSTER LLP

Daniel J. Pochoda (Bar No. 021979)

Shin-Marunouchi Building, 29th Floor

James Duff Lyall (Bar No. 330045)**

8 5-1, Marunouchi 1-Chome

ACLU FOUNDATION OF ARIZONA

Tokyo, Chiyoda-ku 100-6529, Japan

3707 North 7th Street, Suite 235

9 Telephone: +81-3-3214-6522

Phoenix, AZ 85014

Facsimile: +81-3-3214-6512

Telephone: (602) 650-1854

10 Email: LStoupe@mofo.com

Facsimile: (602) 650-1376

Email: PdeGanon@mofo.com

Email: vlopez@acluaz.org

11

Email: dpochoda@acluaz.org

Email: jlyall@acluaz.org

12 Linton Joaquin*

Karen C. Tumlin*

13 Nora A. Preciado*

NATIONAL IMMIGRATION LAW

14 CENTER

3435 Wilshire Boulevard, Suite 2850

15 Los Angeles, CA 90010

Telephone: (213) 639-3900

16 Facsimile: (213) 639-3911

Email: joaquin@nilc.org

17 Email: tumlin@nilc.org

Email: preciado@nilc.org

18

Mary Kenney*

19 Emily Creighton*

Melissa Crow*

20 AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200

21 Washington, D.C. 20005

Telephone: (202) 507-7512

22 Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org

23 Email: ecreighton@immcouncil.org

Email: mcrow@immcouncil.org

24

Attorneys for Plaintiffs

25

* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

26 ** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

27

28

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1 I, ELDON VAIL, hereby declare:

2 I. 3

INTRODUCTION 1. I have personal knowledge of the facts stated herein and, if called as a

4 witness, could and would competently testify thereto.

5

2. I am a former corrections administrator with nearly thirty-five years of

6 experience working in and administering adult and juvenile institutions. Before becoming

7 a corrections administrator, I held various line and supervisory level positions in a number

8 of prisons and juvenile facilities in Washington State. I have served as the Superintendent

9 (Warden) of 3 adult institutions, including facilities that housed maximum, medium and

10 minimum-security inmates.

11

3. I served for seven years as the Deputy Secretary for the Washington State

12 Department of Corrections (WDOC), responsible for the operation of prisons and

13 community corrections. I briefly retired, but was asked by the former Governor of

14 Washington, Chris Gregoire, to come out of retirement to serve as the Secretary of the

15 Department of Corrections in the fall of 2007. I served as the Secretary for four years,

16 until I retired in 2011.

17

4. Since my retirement I have served as an expert witness and correctional

18 consultant for cases and disputes twenty-eight times in fourteen different states. A true

19 and correct copy of my current resume is attached as Attachment A to this report, which

20 lists my work experience, publications, and service as an expert witness and correctional

21 consultant.

22

5. As a Superintendent, Assistant Director of Prisons, Assistant Deputy

23 Secretary, Deputy Secretary and Secretary, I have been responsible for the safe and secure

24 operations of adult prisons in the State of Washington, a jurisdiction that saw and

25 continues to see a significant downward trend in prison violence with very little class

26 action litigation. As an expert witness and consultant I have been called upon to address

27 security issues and conditions of confinement in adult prisons and jails in other states. I

28 am experienced in sound correctional practice.

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1 II. ASSIGNMENT

2

6. I have been asked by Plaintiffs’ counsel to offer my opinions regarding the

3 conditions of confinement in Tucson Sector Border Patrol Station Hold Rooms (“Hold

4 Rooms”).

5 III. MATERIALS RELIED UPON

6

7. I personally inspected all four of the Border Patrol Stations made available

7 to Plaintiffs for inspection—Tucson, Casa Grande, Douglas and Nogales—on September

8 8 through September 11, 2015. At each station, I was accompanied by sanitarian expert

9 Robert W. Powitz and a photographer. I was also accompanied at each station by two of

10 Plaintiffs’ attorneys, including Colette Mayer and Nora Preciado at Tucson, Louise

11 Stoupe and Nora Preciado at Casa Grande, Kevin Coles and James Lyall at Douglas,

12 Nogales and an abbreviated second visit to Tucson.

13

8. I reviewed surveillance video screenshots from an additional 3 stations—

14 Sonoita, Brian A. Terry, and Willcox—which I did not personally inspect. The conditions

15 at these stations appear to be very similar to those at the four stations that I visited. 16 (Exs. 168-169, 154-157, 190-191.)1

17

9. I have read the declaration of Robert W. Powitz and believe his account of

18 our inspections and descriptions of the various facilities to be accurate.

19

10. I have read the declaration of Joseph Gaston and have based my opinion on

20 the reports prepared at the request of Plaintiffs’ counsel, which analyze “e3DM” data

21 produced by Defendants. I understand the e3DM data purports to reflect certain records

22 logged by Defendants with respect to the detention of individuals at each of the eight

23 Border Patrol Stations within the Tucson Sector.

24

11. I have been provided with all documents produced by Defendants in this

25 case to date, Bates numbers USA000001 through USA0002186.

26

27

1 All exhibits referenced in this declaration are to the Appendix of Exhibits In Support of

28 Plaintiffs’ Motion for Preliminary Injunction.

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1

12. I have also been provided with copies of photographs taken during our

2 Border Patrol station inspections.

3

13. I have reviewed approximately 50 of the declarations of former detainees

4 who were detained in U.S. Customs and Border Protection facilities within the Tucson

5 Sector of the U.S. Border Patrol submitted in support of Plaintiffs’ Motion for Class

6 Certification.

7

14. I have also reviewed screenshots of surveillance video from Tucson, Casa

8 Grande, Douglas and Nogales Stations that was produced by Defendants.

9

15. I have been provided with certain declarations and other documents filed in

10 this case and Flores v. Lynch, No. CV 85–4544–RJK–Px (C.D. Cal. filed July 11, 1985)

11 that relate to CBP hold rooms.

12 IV. OPINIONS

13

16. It is my opinion that the operation of the CBP detention facilities in the

14 Tucson sector does not comply with the national standards for correctional facilities in

15 several respects outlined in more detail below.

16

17. The American Correctional Association (ACA) is the primary body that

17 promulgates standards for the operation of jails. These standards were developed by ACA

18 with the involvement of the National Sheriffs’ Association, the American Jail Association,

19 the National Institute of Corrections and the Federal Bureau of Prisons and they describe

20 the mandatory standards for the safe operation of detention facilities. A true and correct

21 copy of these standards is attached to the Appendix of Exhibits as Exhibit 195. The CBP

22 makes no reference to these standards and fails to meet them in many respects.

23

18. Other bodies also establish standards for the operation of jails and detention

24 facilities. The United States Department of Justice National Institute of Corrections (NIC)

25 has developed standards for the safe, secure and humane operation of jails. A true and

26 correct copy of these standards is attached to the Appendix of Exhibits as Exhibit 196.

27

19. The United Nations has established a Body of Principles for the Protection

28 of all Persons Under Any Form of Detention or Imprisonment as well as Standard

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1 Minimum Rules for the Treatment of Prisoners. CBP makes no reference to these

2 principles and standards to guide the operation of its detention facilities. True and correct

3 copies of these standards are attached to the Appendix of Exhibits as Exhibits 197 and

4 198.

5

20. CBP has promulgated standards that serve as “mandatory minimum

6 requirements for CBP managers to implement and improve the security posture for their

7 designated CBP area of responsibilities.” (See CBP Security Policy and Procedures

8 Handbook, HB 140-02B, August 13, 2009 (“2009 CBP Handbook”), Appendix 8.10,

9 attached to the Appendix of Exhibits as Exhibits 81 and 102 (produced by Defendants at

10 USA00088-105 and USA00681-698).) The guidelines set out in the 2009 CBP Handbook

11 remain in place today.

12

21. The CBP also has internal standards and guidelines that govern their

13 interactions with detainees that were recently modified. Formerly, issues such as bedding,

14 medical screening and hygiene were governed by CBP’s 2008 Hold Rooms and Short

15 Term Custody Policy (“2008 Policy”), attached to the Appendix of Exhibits as Exhibit 85.

16

22. Similarly, attached to the Appendix of Exhibits as Exhibit 86 is a true and

17 correct copy of a document produced by Defendants on or about September 4, 2015 and

18 Bates labeled USA000322-345, which appears to be a CBP memorandum dated October

19 18, 2012, with subject heading “Hold Rooms and Short Term Custody Policy,” which

20 “serves as a reminder of the [June 2, 2008] Hold Rooms and Short Term Custody Policy,

21 which in turn “covers all persons . . . who are arrested by Border Patrol Agents and are

22 detained in hold rooms at Border Patrol stations, checkpoints, and processing facilities.”

23

23. The new standards recently issued by CBP “replace separate policies that

24 have evolved over the years since CBP’s formation in 2003” are lauded as “agency-wide

25 policy that sets forth the first nationwide standards which govern CBP’s interaction with

26 detained individuals”. (See National Standards on Transport, Escort, Detention, and

27 Search (“TEDS standards”) published on October 5, 2015, excerpts attached to the

28 Appendix of Exhibits as Exhibit 95.)

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1

24. Neither the TEDS standards (which lower CBP’s standards from the

2 preexisting level), their historical antecedents or the 2009 CBP Handbook make reference

3 to ACA or NIC standards or the United Nations principles and in fact in several areas

4 violate those standards and principles. As described in more detail below, the result is

5 that many of the actual practices of the CBP facilities are unsafe and inhumane and put

6 detainees at risk of significant harm. Further, these conditions serve no legitimate

7 penological or custodial purpose.

8

A. Hold Rooms Designed For Short Term Confinement Only

9

25. It is my professional opinion that the Hold Rooms were designed and

10 intended for short-term confinement, meaning detentions of less than 10 hours.

11

26. Defendants admit that Tucson Sector stations are “not designed for long-

12 term care and detention.” (ECF No. 39-1, Ex. 1 ¶ 11.)

13

27. Defendants also describe these stations as “short-term facilities” that “serve

14 the limited purpose of overnight processing” or “brief initial processing.” (ECF No. 52 at

15 2, 8–9.)

16

28. According to CBP officials, including Defendants here, “Border Patrol

17 seeks to process and transfer all aliens out of their custody within 12 hours from

18 apprehension.” (ECF No. 39-1, Ex. 1 ¶ 11; see also Request for Judicial Notice (“RJN”),

19 Ex. A (Declaration of Chief Border Patrol Agent Kevin W. Oaks ¶ 14, ECF. No. 121-1,

20 Flores v. Lynch, No. CV 85–4544–RJK–Px (C.D. Cal. filed July 11, 1985)).).

21

29. Similarly, the design and construction of the facilities suggest that they were

22 intended for very short detentions only. The 2009 CBP Handbook, describes the physical

23 requirements of the Hold Rooms and states, among other requirements, the amount of

24 unencumbered floor space that each detainee is intended to have in the Hold Rooms.

25 (Exs. 81.) The 2009 Handbook mandates that each detainee should be provided with 37

26 square feet of unencumbered space for a single occupant hold room, and 7 additional

27 square feet for each additional detainee. It also states that hold rooms have “[n]o beds; a

28 hold room is not designed for sleeping.” (Id. at USA000091.) Facilities of the type

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1 described in the Handbook, however, are inadequate for long-term detention and further

2 support my conclusion that the facilities were not intended to hold detainees over 10

3 hours.

4

30. Detainees are held in the facilities for much longer than the time period for

5 which they were designed. For example, according to Plaintiffs’ analysis of “e3DM” data

6 produced by Defendants, of the 17,006 individuals detained in Tucson Sector facilities

7 between June 10, 2015 to September 28, 2015, at least 14,021 were detained for over 12

8 hours; 6,541 over 24 hours; 2,841 over 36 hours; 1,064 over 48 hours; and 157 over 72

9 hours. (Decl. of Joseph Gaston in Support of Mot. for Preliminary Injunction (Gaston

10 Decl.”) ¶ 20.)

11

B. Lack of Space

12

31. It is my opinion that the hold rooms at the CBP facilities have maximum

13 occupancy numbers that are overstated for housing detainees any length of time, but are

14 particularly problematic when individuals are detained for over 10 hours. As a result,

15 there is evidence that the hold rooms are regularly overcrowded.

16

32. Surveillance video from Tucson Station reveals that Defendants routinely

17 pack so many individuals into holding cells that detainees are commonly forced to lie

18 down on the concrete floors beneath the toilet stalls. Others are crammed so tightly, they

19 look like sardines in a can, with no room to move in any direction without rolling over

20 someone else:

21

22

23

24

25

26

27

28

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1

2

3

4

5

6

7

8

9 (Ex. 188).

10

33. Surveillance video from other hold rooms similarly shows detainees

11 crowded into cells and forced to lie on concrete floors to sleep or rest. (Exs. 151, 152,

12 158; see also Exs. 130, 170, 172-73, 176-88); Declaration of Kevin Coles In Support of

13 Plaintiffs’ (“Coles Decl.”) ¶ 36, 37.)

14

34. The surveillance video also shows that people are often kept in these

15 crowded conditions overnight. (Coles Decl. ¶ 36.)

16

35. Consistent with this, former detainees describe having to sit or stand for all

17 or part of the nights because there was insufficient room for everyone in the cell to lie

18 down. (See, e.g., ECF No. 2-1, Ex. 6 ¶ 8 (he and 15 others stood all night because there

19 was not enough room to lie down); ECF No. 2-2, Ex. 33 ¶ 6 (sandwiched between others

20 and unable to lie down); ECF No. 2-3, Ex. 50 ¶ 17 (forced to sleep on his side on the floor

21 to make room for others to lie down).)

22

36. This overcrowding problem is compounded by the fact that many of the

23 holding cells I encountered in my inspections were irregularly designed in shape, often

24 with multiple narrow concrete benches and toilet stalls. (Exs. 52, 54, 56, 60, 62, 68, 75;

25 see also Exs. 7, 19,-20.) Despite the dimensions of the cell perimeter walls, the actual

26 useable space available to detainees is restricted, in some cases severely. Cells with stated

27

28

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1 occupancy numbers as high as 48, such as Cell 18 in Tucson, did not even have enough

2 floor space to fit more than a couple beds. (Exs. 60-62.)

3

37. During my inspection of Tucson, Casa Grande and Douglas Stations, I

4 found room occupancy numbers posted above or near each holding cell door.

5

38. There were no occupancy numbers posted at the Nogales Station. We were

6 informed that occupancy numbers had been painted over.

7

39. Defendants produced their own capacity numbers for hold rooms at each of

8 the four stations we inspected.

9

40. Defendants produced various floor plans and sketches with measurements

10 for some of the walls and fixtures in holding cells at each of those four stations.

11

41. From my review of these floor plans and sketches, I believe that

12 Defendants’ hold room occupancy numbers were likely calculated by applying the 2009

13 CBP Handbook standard of 35 square feet for the first detainee plus 7 additional square

14 feet for each additional detainee.

15

42. CBP’s unencumbered space requirements are significantly below the

16 American Correctional Association’s National Core Jail Standards (“Core Jail Standards”)

17 requirements. A true and correct copy of excerpts of these standards is attached to the

18 Appendix of Exhibits as Exhibit 199. Even for confinement in multiple-occupancy cells

19 for less than ten hours per day, the Core Jail Standard 1-CORE-1A-07 requires at least 25

20 square feet of unencumbered space per occupant.

21

43. It is my professional judgment that the CBP Handbook standard is

22 completely inadequate for longer-term detentions (lasting more than 10 hours), where

23 detainees reasonably require room to lie down, sleep, and walk around.

24

44. Longer-term facilities (over ten hours) have larger minimum space

25 requirements. For example, the Core Jail Standards state that “between two and sixty-four

26 occupants and provide 25 square feet of unencumbered space per occupant. When

27 confinement exceeds ten hours per day, at least 35 square feet of unencumbered space is

28 provided for each occupant.” (Ex. 199, 4-ALDF-1A-10, at 3 (emphasis added).)

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1

45. There is widespread consensus among corrections officials, based on their

2 experience and supported by considerable research that goes back at least 30 years, that

3 overcrowded facilities create conditions of confinement that increase the risk to safety and

4 security for prisoners. That consensus is consistent with my own correctional experience.

5 Dr. Craig Haney, a University of California professor who has researched and testified as

6 an expert in prison overcrowding cases, wrote in an article in the Washington University

7 Journal of Law and Policy.

8

There is widespread agreement among correctional experts

that chronic idleness in prison produces negative

9

psychological and behavioral effects…Thus, overcrowding

means that there is less for prisoners to do, fewer outlets to

10

release the resulting tension, a decreased staff capacity to

identify prisoner problems, and fewer ways to solve them

11

when they do occur. The increased risk of victimization is a

likely result. 2

12

13

46. The conditions here serve no legitimate penological or custodial interest and

14 in fact are likely to make the facilities unsafe as such conditions will increase tension

15 among the detainees as they contend for space to simply lie down, sleep or use the

16 bathroom with having someone in the immediate proximity. Based on my experience and

17 review of literature, I believe the lack of space in these holding cells creates an

18 unjustifiable risk of harm to detainees.

19

47. The effects of overcrowding and lack of space in CBP facilities are

20 extensive. There is simply not enough space to move around in the holding cell when they

21 approach or exceed their stated capacity. There is not enough space to sometimes sit or

22 find a place to sleep. Unless they stand for 24 hours of more— a difficult, if not

23 impossible undertaking —detainees must sit or lie on heat-draining concrete floors and

24 benches. It is very likely, and consistent with detainee declarations, that adequate sleep is

25 impossible to achieve in these conditions.

26

27

2 (Dr. Craig Haney, The Wages of Prison Overcrowding: Harmful Psychological

Consequences and Dysfunctional Correction Reactions, Washington University Journal of

28 Law & Policy, Volume 22, January 2006, pages 275-276, Exhibit 201.)

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1

48. There are also no activities or diversions for the detainees while they await

2 decisions on their next destination to distract them from the conditions.

3

49. The effects of overcrowding are made worse the longer they must be

4 endured. However, the CBP facilities have some unique and troubling designs that can

5 quickly result in conditions that place great stress on detainees.

6

50. The location of and access to toilets is one exacerbating factor and seems

7 unnecessarily humiliating for detainees. While the designs of every CBP facility I

8 inspected were different, access to even a modicum of privacy while using the toilet was

9 absent in all of them. Every detainee in the room can view the toilet activities of others.

10 Moreover, the surveillance cameras mounted in each cell make clear to the detainees that

11 they are being watched not only by every other detainee in the room but also by the CBP

12 agents. Some of the surveillance cameras even have a direct view into the toilet stall.

13 (Exs. 143, 144 (for surveillance video); Exs.7, 8 (for photos of the toilet stall shown in the

14 video).) This lack of privacy makes overcrowding even more of an issue. (See ECF No.

15 2-3, Ex. 50 ¶ 9 (closed his eyes when using bathroom because he was so embarrassed).)

16

51. Similarly, overcrowding has a direct effect on hygiene. Many of the toilets

17 we inspected were leaking and stained with built up grime from over use as there are 18 simply not enough of them for the capacity of the detainees in some of the holding cells.3

19 (Ex. 11; Ex. 43; Ex.77.) One detainee reported that there was only one toilet for

20 approximately 40 people. (ECF No. 2-1, Ex. 6 ¶¶ 7, 10; id., Ex. 7 ¶¶ 9, 14 (2 toilets for 60

21 people); id., Ex. 16 ¶¶ 3, 12 (the sole toilet was backed up and did not flush while a

22 mother and two children were detained); ECF No. 2-3, Ex. 38 ¶¶ 17, 20 (approximately 90

23 people detained with only three of four toilets that functioned); ECF No. 2-1, Ex. 2 ¶¶ 5, 9

24 (52 people in a cell with only 2 of 3 toilets working); id., Ex. 1 ¶¶ 4, 6 (2 of 3 toilets

25 working in cell with 45 people); id., Ex. 17 ¶¶ 6, 13 (60 to 70 people in cell with only 2 of

26

3 The ACA prison standard 4-4137 requires one toilet for every twelve male

27

prisoners and one toilet for every eight female prisoners, standards which, in my observation, are frequently exceeded in CBP holding cells. (See Ex. 195, 4-ALDF-4C-

28 12, at 54.)

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1 4 toilets working).) Additionally, detainees frequently run out of toilet paper and CBP

2 delays in resupplying them. (Id. Ex. 6 ¶ 10; ECF No. 2-3, Ex. 44 ¶ 25.)

3

52. Although CBP apparently has no policies with respect to how often the Hold

4 Rooms must be cleaned, surveillance footage from Casa Grande station shows hold rooms

5 being cleaned once per 48 hours, if that. (Coles Decl. ¶ 41.) There are no cleaning

6 supplies in the hold rooms and, according to detainees, the rooms often lacked a trash can.

7 (ECF No. 2-1, Ex. 8 ¶ 11; id., Ex. 16 ¶ 25; id., Ex. 43 ¶ 15.) This means, effectively, that

8 the Hold Rooms are hardly ever clean and that the areas around the toilets are generally

9 dirty. (ECF No. 2-1, Ex. 8¶ 11 (diapers, toilet paper and other trash was strewn around

10 the bathroom area); ECF No. 2-3, Ex. 35 ¶ 24 (1 toilet backed up and smelled terrible).)

11 Unfortunately, this fact does not stop the overcrowding of the cells which makes it

12 necessary for some detainees to lie down very close to those toilets in order to find a place

13 to sleep:

14

15

16

17

18

19

20

21 (Ex. 173, 174; Ex. 152; see also ECF No. 2-2, Ex. 32 ¶ 10 (people were so tightly packed

22 into the cell some had to sleep in the bathroom area); id., Ex. 17 ¶ 7 (same); ECF No. 2-1,

23 Ex. 7 ¶ 13 (one detainee sat upright on the concrete floor for two nights, finding it

24 impossible to sleep more than a couple of hours during the time he was detained); id.,

25 Ex. 11 ¶ 12 (several detainees explained that in order to find space to sleep on the floor,

26 some detainees resorted to sleeping next to toilets.).) In essence, the design of the Hold

27 Rooms mean that the person using the toilet and the person trying to sleep both experience

28

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1 difficulties, creating unnecessary tension in the holding cell, especially when it is

2 overcrowded.

3

53. All of these factors lead me to conclude that detainees suffer unnecessarily

4 and that these conditions are likely to create tension among the detainees as they are

5 forced to compete for access to these most basic functions of everyday life. (See, e.g.,

6 ECF No. 2-2, Ex. 20 ¶ 18 (“Sometimes if you went to use the bathroom you would lose

7 your seat [on the bench].”).)

8

C. Deprivation of Sleep

9

54. During my inspections of the four stations, I did not see a single bed, cot or

10 mattress, and no bedding apart from two or three pillows.

11

55. The only coverings I found were thin sheets made of Mylar, a material

12 similar in appearance to, but more durable than, aluminum. These sheets are almost paper

13 thin, but are referred to by CBP agents as “Mylar blankets”:

14

15

16

17

18

19

20

21 (Ex. 4.)

22

56. I understand that Plaintiffs’ review of video surveillance from these stations

23 further supports the fact that detainees are not provided beds or mattresses at these

24 stations, regardless the duration of their detention. (Coles Decl. ¶ 45.)

25

57. During my inspection of Casa Grande station, there were only three mats in

26 the entire facility:

27

28

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1
2
3
4
5
6
7 8 (Ex. 3.)
58. We were informed at each station that mats were intended only for families 9
and children. According to documents filed by CBP with the court, the policy in the 10
Tucson Sector is that “[m]attress pads are available for juvenile and family units,” ECF 11
No. 39-1, Ex. 1 ¶ 15, while in the Rio Grande Valley, “[i]n certain circumstances, aliens 12
who are in Border Patrol’s custody may require some form of bedding.” (RJN, Ex. A 13
¶ 21.) 14
59. Surveillance video from some of these stations often shows detainees lying 15
on the concrete floors while, at the exact same moment in time in the same station, mats 16
go unused in other unoccupied or less occupied cells: 17
18
19
20
21
22
23
24
25 (Ex. 170; see also Ex. 147.)
26 60. Surveillance video also shows families and children confined in cells with
27 too few or no mats:
28

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1

2

3

4

5

6

7

8 (Ex. 146, 147; see also Ex. 155.)

9

61. This is consistent with the declarations of former detainees held with their

10 children but not provided mats. (ECF No. 2-1, Ex. 5, ¶ 5; id., Ex. 8 ¶ 9 (mother and 6

11 month old daughter); id., Ex. 13 ¶ 7 (pregnant mother and 5 year old daughter); id., Ex. 16

12 ¶ 7 (pregnant mother and 2 children); ECF No. 2-2, Ex. 29 ¶ 3, 7 (mother and 18 month

13 old child).)

14

62. According to Plaintiffs’ analysis of the e3DM data, out of the 16,992

15 individuals held in U.S. Border Patrol custody between June 10 and September 28, 2015,

16 only 122 were recorded to have received a mat. (Gaston Decl. ¶ 25.)

17

63. Additionally, detainees are frequently forced to endure constant illumination

18 in the holding cells through the night. Video surveillance shows holding cell lights on in

19 the middle of the night. (Ex. 186, 187; Ex. 142; Exs. 150, 151.) Even when the holding

20 cell lights are dimmed or turned off, light from the processing areas still floods in through

21 the windows from the processing areas. (Exs. 171, 182.)

22

64. Detainees are commonly seen shielding the light by hiding their faces under

23 their Mylar blankets. (Ex. 152; Ex. 188.) One juvenile even appears to be shielding

24 himself from the light by hiding underneath one of the mats. (Exs. 162, 163.)

25

65. Declarations of former detainees also show that there is constant noise

26 throughout the night. (ECF No. 2-1, Ex. 9 ¶ 9 (guards would talk to detainees throughout

27

28

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1 the night or hit the cell window); id., Ex. 11 ¶ 15 (Mylar sheets were very noisy making it

2 hard to sleep).

3

66. Video surveillance also shows CBP agents interrupting detainees’ sleep in

4 the middle of the night to conduct cell counts or call individuals in or out of the cells.

5 (Coles Decl. ¶ 40; see also ECF No. 2-1, Ex.16 ¶ 11 (called out twice for interviews

6 during the night).)

7

67. The Core Jail Standards require bedding and appropriate illumination:

8

Bedding Issue

1-CORE-4B-01 (Ref. 4-ALDF-4B-02)

9

Inmates are issued suitable, clean bedding and linens.

There is provision for linen exchange, including towels, at

10

least weekly.

11 (Ex. 199, 1-CORE-4B-01, at 25.)

12

Environmental Conditions/Lighting

1-CORE-1A-09 (Ref. 4-ALDF-1A-14, 1A-15)

13

All inmate rooms/cells provide the occupants with access to

natural light. Lighting throughout the facility is sufficient for

14

the tasks performed.

15 (Id., 1-CORE-1A-09, at 4.)

16

68. The Department of Justice NIC Standards also state:

17

Inmates must be provided with clean clothes and bedding.

Clothing, towels, and bedding must be exchanged, laundered,

18

and inspected on a regular basis. Failing to do so will result in

an unhygienic facility for both the inmates and the staff.” 19

(Ex. 196 at 4.) 20

21

69. The United Nations Standard Minimum Rules for the Treatment of

22 Prisoners state:

23

Every prisoner shall, in accordance with local or national

standards, be provided with a separate bed, and with separate

24

and sufficient bedding which shall be clean when issued, kept

in good order and changed often enough to ensure its

25

cleanliness.

26 (Ex. 198, R. 19 at 3.)

27

70. Prior to the start of this litigation, even the CBP’s own standards required all

28 detainees to be given bedding. According to CBP’s June 2, 2008 Memorandum regarding

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1 “Hold Rooms and Short Term Custody” (the “2008 Memorandum”), ”[d]etainees

2 requiring bedding will be given clean bedding. Only one detainee will use this bedding

3 between cleanings. This bedding will be changed every three days and cleaned before it is

4 issued to another detainee. Vinyl or rubber-coated mattresses will be disinfected before

5 being reissued.” (2008 Memorandum, ¶ 6.11 (Ex. 86 at 330)).

6

71. Unfortunately, CBP’s recently issued standards drop below even this basic

7 level. Section 8.0 of the new TEDS standards defines bedding as “A (or any combination

8 of) blanket, mat, or cot.” Section 4.12 of the new TEDS standards states that “bedding”

9 must be provided to juveniles but only a “blanket” needs to be provided to adults and only

10 on request.

11

72. CBP’s recent reductions in bottom line requirements from the 2008 Memo

12 to the new TEDS standards serve as an admission that bedding has not been adequately

13 provided to detainees in these facilities. Standards from top officials at CBP are meant to

14 inform as to what practices are recommended and acceptable. It is clear that, in practice,

15 these minimums have been treated as maximums, if followed at all.

16

73. The current practice at the CBP facilities is to force detainees to sleep on the

17 concrete floor or on very narrow concrete benches in overcrowded conditions. While

18 inspecting those facilities I made a point of sitting and lying down on those concrete

19 benches. Even though the air temperature of the holding cells seemed more or less

20 “normal” it only took a few minutes on a concrete bench to begin to feel the heat leave my

21 body and for me to begin to feel cold. I cannot imagine that any restful sleep is possible

22 without a bed that is off the floor and adequate bedding to keep myself warm. The

23 declarations of former detainees confirm this. (ECF No. 2-1, Ex. 4 ¶ 6: id., Ex. 8 ¶¶ 8-9;

24 ECF No. 2-2, Ex. 24 ¶ 8; ECF No. 2-3, Ex. 48 ¶ 8; ECF No. 2-1, Ex. 11 ¶ 13; id., Ex. 16

25 ¶¶ 9-10; id., Ex. 15 ¶¶ 9-10, 21-22.)

26

74. According to one detainee, he and fifteen others had to remain standing

27 throughout the night and he was therefore not able to sleep at all. (ECF No. 2-1, Ex. 6¶ 8

28 (gave up his place on the floor to an injured detainee).) In its report on International

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1 Prison Conditions, the U.S. Department of State identified overcrowding as a “central

2 problem” in prison management and cited specific instances in Ukraine and Haiti where 3 inmates were forced to sleep in shifts as evidence of overcrowding.4 The State

4 Department stated that it “encourages the use of the general standard in section 7085(b)(1)

5 of Public Law 111-117 for guiding our assessment of whether prison conditions are

6 overcrowded (i.e., ‘the number of prisoners or detainees does not so exceed prison

7 capacity such that per capita floor space is sufficient to allow for humane sleeping 8 conditions and reasonable physical movement’),”5

9

75. Add to this mix the undisputed acknowledgement by CBP officials that the

10 lights in the holding cell are left on 24 hours a day. Furthermore, it is likely that the lack

11 of sleep will exacerbate tensions in an overcrowded environment. It is my opinion that the

12 practices at the CBP facilities are well beyond what would be tolerated in jails or prisons

13 for convicted felons in our country. It is my professional opinion that conditions of

14 confinement at the Tucson Sector Stations unnecessarily deprive detainees of sleep, serve

15 no legitimate penological or custodial purpose, and create an unjustifiable risk of harm to

16 detainees.

17

D. Potable Water

18

76. It is a basic requirement that detainees be provided with access to potable

19 water.

20

77. The CBP facilities deal with this issue differently. Surveillance video of

21 holding cells at Tucson Station (which was limited to two dates in August, 2015 and most

22 of September, 2015, see Coles Decl. ¶¶ 91-111) shows a 5-gallon water cooler in cells,

23 often placed on toilet stalls or the ground, but with few or no paper cups. (Exs. 180, 184,

24 185.) Cells with 15 or more detainees might have only four or five paper cups shared

25

26 4 Report on Int’l Prison Conditions, U.S. Dep’t of State,May 22, 2013, available at
27 http://goo.gl/OaquKm.

28

5 Id.

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1 among the various detainees. Individuals can also be seen drinking directly from the

2 water cooler itself. (Coles Decl. ¶ 39.)

3

78. In Casa Grande, there were no water coolers in any of the holding cells

4 during our inspections.

5

79. There were no cups in any of the rooms at Casa Grande. During my

6 inspection of the Casa Grande facility I saw paper cups in the storage room. (Ex. 1.)

7 Papers cups were never given to the detainees in Hold Room 5 during the 5 days where

8 they were drinking out of the plastic jug depicted below. (Coles Decl. ¶ 46.) Depriving

9 detainees of paper cups appears to be common practice. In general, during my inspections

10 of Tucson, Casa Grande and Douglas stations, I found paper cups being stored at each of

11 the stations, yet found few or none in the holding cells or waste receptacles. (Ex. 1 (box

12 of Solo brand cups); Exs. 50, 51.)

13

80. Numerous detainees complained of not getting adequate access to drinking

14 water. (ECF No. 2-1, Ex. 5 ¶ 13 (no drinking water); ECF No. 2-3, Ex. 43 ¶ 18 (same);

15 ECF No. 2-2, Ex. 26 ¶ 27 (no drinking water for entire first day).) Many complain of

16 being forced to recycle used juice boxes to hold drinking water. (ECF No. 2-1, Ex. 2 ¶

17 11; id., Ex. 10 ¶ 16; id., Ex. 12 ¶ 10.)

18

81. This testimony is confirmed by surveillance video of the Casa Grande which

19 shows at least a dozen different detainees drinking from the same 1-gallon water jug over

20 the course of 5 days:

21

22

23

24

25

26

27

28

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1 (Ex. 130; see also Exs. 125, 129, 130, 133, 141.)

2

82. The jug was never replaced or cleaned, despite the cell being swept by

3 maintenances crews on several occasions over the course of the 5 days it was used.

4 (Coles Decl. ¶ 46.)

5

83. In hold rooms with “bubblers” to dispense drinking water, these were

6 usually located just above or adjacent to the toilets, often as part of the same metal

7 toilet/sink unit. During each of my inspections of the four stations, I observed numerous

8 bubblers that did not work or had extremely low water pressure. One example of a

9 malfunctioning bubbler is shown in the picture below:

10

11

12

13

14

15

16

17

18

19 (Ex. 31.)

20

84. In general, I believe that the problem with the bubblers is the same as with

21 the toilets—they are subject to overuse as there are not enough of them for the numbers of

22 detainees placed in the holding cells6 and they are not regularly inspected and repaired.

23

85. CBP’s own inspection checklists produced in this litigation support this

24 conclusion. One of the earliest produced “Processing Inspection Form” for Casa Grande

25 states that “Water fountain 10-7 in cell#6” is not working starting June 7, 2015. (Ex. 103)

26

27

6 ACA prison standard 4-4138 requires one washbasin for every 12 prisoners. (See

28 Ex. 195, 4-ALDF-4C-10, at 54.)

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1 That entry continues for months. One of the latest produced Processing Inspection Forms

2 in October 20, 2015 shows the same water fountain has not been repaired. “One Fountain

3 needs repairs Cell #6” (Ex. 107). Although CBP’s records are incomplete, I understand

4 that at least 34 detainees were held in Cell #6 between June 10, 2015 and September 28,

5 2015. (Gaston Decl. ¶ 72.)

6

86. Similarly, inspection checklists for the Tucson Station report one or more

7 malfunctioning sinks from July 16 through August 27 (Ex. 114 at USA1758-1776;

8 Ex. 115 at USA1872-1898), and then again on September 10, 21 and 22 (Ex. 114 at

9 USA1758-1776), and again between October 16-19 (Ex. 116 at USA2035-037; Ex. 116 at

10 USA2055-056). Inspection checklists logs from Nogales Station report malfunctioning

11 sinks on August 23-26 (Ex. 112 at USA1589-1592); August 28-September 9 (Ex. 112 at

12 USA1595-1597; Ex. 112 at USA1608; Ex. 112 at USA1610; Ex. 112 at USA1610-1619);

13 September 11-18 (Ex. 112 at USA1650-1657), September 20-21 (Ex. 112 at USA1659-

14 1660), September 27 (Ex. 113 at USA1694); October 3 (Ex. 113 at USA1750), October

15 14-16 (Ex. 113 at USA1731-1732), and October 18 (Ex. 113 at USA1735).

16

87. The Core Jail Standards make clear that potable water is required:

17

1-CORE-1A-05 (Mandatory) (Ref. 4-ALDF-1A-07)

The facility’s potable water source and supply, whether owned

18

and operated by a public water department or the facility, is

certified at least annually by an independent, outside source to

19

be in compliance with jurisdictional laws and regulations.

20 (Ex. 199, 1-CORE-1A-05, at 2.)

21

88. Even CBP’s new TEDS standards make clear that detainees must be

22 provided with potable water. Section 4.14 of the new TEDS standards also require that

23 clean paper cups be provided to detainees. In my professional judgment, the failure to

24 provide clean cups and potable water serves no legitimate penological or custodial interest

25 and unjustifiably increases the risk of harm to detainees. (Ex. 95 at USA000631.)

26

89. The CBP facilities need to have clear standards for providing access to

27 potable water and make sure that each facility complies with those standards. This is the

28 simple and basic work of a detention facility. Further, water fixtures must be checked

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1 regularly and repaired quickly when they are broken. If they wish to continue using water

2 jugs as part of their water delivery system, the regular cleaning and refilling of those jugs

3 should be scheduled and logged. In no case should detainees be expected to share the

4 same cups or drink from the same gallon jug as they present an obvious risk of the spread

5 of contagious disease.

6

E. Food

7

90. During my inspections, I found that each of the four stations stored

8 microwaveable burritos, crackers and boxes of fruit juice. The nutritional information

9 indicated that the burritos generally had between 330 and 360 calories each, crackers 200

10 calories and boxes of fruit juice around 60 calories. (See Ex. 2.)

11

91. Other than some baby foods and formulas, there was no other food for

12 detainees at these facilities.

13

92. There were no rotating menus and no evidence of differentiation between

14 the food provided to children (other than infants), adults, and pregnant or nursing mothers.

15

93. There were no facilities for preparing hot meals other than microwaves or

16 warming trays. (Ex. 5; Ex. 42.)

17

94. Plaintiffs’ analysis of the e3DM data indicates that, between June 10, 2015

18 and September 28, 2015, the average gap time between burritos reportedly offered to

19 detainees at all Tucson sector stations was 7.336 hours. (Gaston Decl. ¶ 49.) At Tucson

20 station, the average gap time between meals was 8.239 hours. (Gaston Decl. ¶ 68.)

21 Consistent with this, many detainees stated that they did not receive any food for 12 or

22 more hours (ECF No. 2-3, Ex. 43 ¶¶ 9, 19, 21, 32; ECF No. 2-1, Ex. 5 ¶¶ 13, 17) and that

23 they were constantly hungry. (ECF No. 2-3, Ex. 43 ¶¶ 18, 32, 38; ECF No. 2-3, Ex. 45

24 ¶ 28; id., Ex. 46 ¶¶ 12, 15; id., Ex. 47 ¶ 13; ECF No. 2-2, Ex. 26 ¶ 18; ECF No. 2-3,

25 Ex. 48 ¶ 11; ECF No. 2-1, Ex. 5 ¶¶ 13, 17; ECF No. 2-2, Ex. 30 ¶¶ 17, 18; ECF No. 2-3,

26 Ex. 42 ¶¶ 12, 21; ECF No. 2-1, Ex. 11 ¶ 18; ECF No. 2-2, Ex. 21 ¶¶ 15, 25; ECF No. 2-3,

27 Ex.44 ¶ 15, 21, 24; id., Ex. 49 ¶¶ 20, 28; id., Ex. 36 ¶ 23.)

28

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1

95. Former detainee declarants frequently complained about the quality of food

2 as well. (ECF No. 2-1, Ex. 9 ¶ 32; id., Ex. 16, ¶ 15; id., Ex. 14 ¶ 8.)

3

96. The DOJ NIC Jail Standards state:

4

Inmates must be provided with adequate, nutritional meals.

Dieticians should ensure that each meal provides inmates with

5

a balanced diet appropriate to their age and medical

conditions. Teenagers may need a different caloric intake than

6

older inmates. Diabetics, inmates on dialysis, and those with

food allergies all need to have medically approved and

7

appropriate diets. Inmates with legitimate religious dietary

restrictions also must be accommodated. 8

(Ex. 196 at 4.) 9

10

97. The Core Jail Standards make clear that nutritionally balanced diet is

11 required and that meals must be served regularly:

12

1-CORE-4A-01 (Mandatory) (Ref. 4-ALDF-4A-07)

The facility’s dietary allowances are reviewed at least

13

annually by a qualified nutritionist or dietician to ensure that

they meet the nationally recommended dietary allowances for

14

basic nutrition for appropriate age groups. Menu evaluations

are conducted at least quarterly by food service supervisory

15

staff to verify adherence to the established basic daily

servings.

16

(Ex. 199, 1-CORE-4A-01, at 23.) 17

1-CORE-4A-06 (Ref. 4-ALDF-4A-17, 4A-18)

18

Three meals, including at least two hot meals, are prepared,

delivered, and served under staff supervision at regular times

19

during each twenty-four hour period, with no more than

fourteen hours between the evening meal and breakfast.

20

Variations may be allowed based on weekend and holiday

food service demands, provided basic nutritional goals are

21

met.

22 (Id., 1-CORE-4A-06, at 25.)

23

98. Section 4.13 of the new TEDS Standards also requires food to be provided

24 at “regularly scheduled meal times” and accurately “documented in the appropriate

25 electronic system(s) of record” and snacks are to be provided “between regularly

26 scheduled meal times.”

27

99. Section 5.6 of the new TEDS requires that juveniles and pregnant detainees

28 “will be offered a snack upon arrival and a meal at least every six hours thereafter, at

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1 regularly scheduled meal times. At least two of those meals will be hot. Juveniles and

2 pregnant or nursing detainees must have regular access to snacks, milk and juice.”

3

100. Former detainees’ declarations show that, despite providing irregular and

4 insufficient meals, Border Patrol agents threaten to confiscate food to keep detainees

5 quiet. (ECF No. 2-1, Ex. 11 ¶ 21; ECF No. 2-2, Ex. 43 ¶ 21; ECF No. 2-1, Ex. 11 ¶ 21

6 (“Border patrol agents said that if we were not quiet they were going to take away our

7 food. So we stayed very quiet because we were afraid of losing the food.”).)

8

101. I understand that Defendants were ordered to make available to Plaintiffs

9 documents sufficient to show current detainee detention practices and procedures at the

10 four stations I inspected. I have not seen any documents indicating that any of the four

11 stations’ dietary allowances have been reviewed by a qualified dietician or nutritionist,

12 and therefore assume none exists. I have seen Holding Cell Inspection forms from

13 Douglas Station in which CBP employees include in the remarks section that the burritos

14 are “delicious” or “yummy” or “super yummy” or “scrumptious.” (Ex. 108 at USA1185;

15 Ex. 109 at USA1197; Ex. 111 at USA1494; Ex. 111 at USA1467.) I understand that CBP

16 employees do not eat the food given to detainees so I must assume that these comments

17 are made sarcastically and with the recognition that the burritos are not particularly

18 appetizing and are in fact considered punitive. (ECF No. 2-1, Ex. 11 ¶ 21.)

19

102. The failure to provide a nutritionally balanced diet to individuals detained

20 more than 12 hours serves no legitimate penological or custodial interest and creates a risk

21 of harm for some detainees.

22

103. Detainees should be given food immediately upon arrival and then upon a

23 set schedule. The current diet also does not address food allergies and should be required

24 to do so.

25

F. Temperature and Ventilation

26

104. During our inspection, CBP agents informed us that all detainees’ outer

27 layers of clothing were confiscated before being placed in hold rooms, and in all but a few

28 instances, detainees were not given replacement clothing. (ECF No. 2-1, Ex. 3 ¶ 8 (agents

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1 confiscated shirts and coat, so detainee had only a short sleeve shirt); ECF No. 2-2,

2 Ex. 20, ¶ 9 (clothes were confiscated, leaving detainee with only a short sleeve shirt.)

3

105. Surveillance video regularly shows detainees in Hold Rooms with no outer

4 layers of clothing. (Exs. 126, 129; Ex. 165.)

5

106. Surveillance video also shows detainees huddled together under Mylar

6 blankets, even in the late Arizona summer months, wrapped head to toe in these flimsy

7 plastic sheets. (Exs. 187, 188; Ex. 191.) According to detainees’ declarations sometimes

8 they would not even have these sheets. (ECF NO. 2-3. Ex. 43 ¶ 10 (“[t]hree of the sixteen

9 [detainees] got small aluminum blankets but the rest of us did not. . . [w]e asked for

10 blankets but they ignored us”); ECF No. 2-1, Ex. 9 ¶¶ 24, 25 (guard refused detainee’s

11 request for new aluminum sheet when it ripped, so she asked permission to take an

12 aluminum blanket from the trash.)

13

107. These Mylar sheets are demonstrably inadequate to keep people warm in

14 hold rooms that, even in the warmer months, drop to 58.8° Fahrenheit. (Ex. 111 at

15 USA001461.) (ECF No. 2-2, Ex. 25, ¶ 9 (detainee stated that she tried to “curl up on the

16 floor and huddle with some of the other women in order to stay warm,” but ultimately

17 needed to pace around the holding cell to try to warm herself); ECF No. 2-2, Ex. 20 ¶ 8.

18 (detainee stated that he understood why “dogs sleep in a little ball, to keep warm, but

19 couldn’t even keep warm doing that.”); id., Ex. 26 ¶ 24 (“[m]any children were crying

20 because it was so cold”); ECF No. 2-3, Ex. 44 ¶¶ 8, 21 (detainee’s two year old daughter

21 and other children in the holding cell often cried due to hunger and cold).)

22

108. Former detainee declarations commonly complain of being subjected to cold

23 temperatures. (ECF No. 2-1, Ex. 6 ¶ 9 (“The temperature in the cell was very cold, we

24 call it the ‘hielera’ (freezer) because they turn on the air high and it’s so cold.”).) There

25 are even accounts of Border Patrol agents using cold temperatures to punish inmates.

26 (ECF No. 2-2, Ex. 24 ¶ 6; id., Ex. 23 ¶ 17 (“One Mexican woman asked an agent to turn

27 off the air conditioner. The agent said, ‘Don’t ask or we’ll turn it up.’”); ECF No. 2-2,

28 Ex. 18 ¶ 8; ECF No. 2-1, Ex. 4 ¶ 6 (“When people asked the guards to make it warmer,

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1 they made it colder. Sometimes they laughed at us when we complained about the

2 temperature.”); ECF No. 2-2, Ex. 18 ¶ 8; ECF No. 2-1, Ex. 6 ¶ 9 (“the other detainees who

3 spoke English would translate for us and tell us that the guards said that if we talked too

4 much or complained that they would turn on the air even colder”); ECF No. 2-3, Ex. 34

5 ¶ 9 (“Someone asked the officials to make the cell warmer, but they were ignored; in fact,

6 after the request was made we could feel the cell get even colder.”).)

7

109. Given the lack of clothing and mattresses and nothing to do all day,

8 detainees are left to sit or lay down on concrete, which is a very cold experience. During

9 the inspection, I alternately sat on the concrete and wooden benches at Nogales and the

10 difference was striking. Concrete benches are very cold and seep heat from your body.

11

110. During our inspection of Douglas we were told their air-conditioning system

12 was out of order, yet the temperatures were about the same as at the other facilities we

13 inspected. As a result the CBP had provided sweatshirts/jackets for the detainees to wear.

14 Every detainee was wearing them. In that the temperatures where similar to the other

15 facilities, this is clear evidence of the need for additional insulation. In September 2015,

16 the Douglas station changed its Holding Cell Inspection form to include a “Cell

17 Temperature Check” section in which CBP employees include temperature readings for

18 each of the cells. (Ex. 111 at USA001512.) The temperature of the cells appears to

19 depend on the location of that cell, with some consistently colder than others.

20

111. The Core Jail Standards Require CBP to provide suitable clothing:

21

1-CORE-4B-02 (Ref. 4-ALDF-4B-03)

Inmates are issued clothing that is properly fitted and suitable

22

for the climate. There are provisions for inmates to exchange

clothing at least twice weekly.” 23

(Ex. 199, 1-CORE-4B-02, at 25.) 24

112. The Core Jail Standards also require:

25

1-CORE-1A-10 (Ref. 4-ALDF-1A-19, 1A-20)

26

A ventilation system supplies at least 15 cubic feet per minute

of circulated air per occupant, with a minimum of five cubic

27

feet per minute of outside air. Toilet rooms and cells with

toilets have no less than four air changes per hour unless state

28

or local codes require a different number of air changes. Air

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1

quantities are documented by a qualified independent source

and are checked not less than once per accreditation cycle.

2

Temperatures are mechanically raised or lowered to

acceptable comfort levels.”]

3

(Id., 1-CORE-1A-10, at 4.)

4 113. Additionally, the DOJ NIC Jail Standards state (emphasis added):

5

Inmates must be provided with clean clothes and bedding.

6

Clothing, towels, and bedding must be exchanged, laundered,

and inspected on a regular basis. Failing to do so will result in

7

an unhygienic facility for both the inmates and the staff.

8 (Ex. 196 at 4.)

9 114. It is my opinion that the current practice of lack of suitable clothes, lack of
10 bedding and mattresses, and the composition of the benches and floors that detainees must
11 sit and sleep on serves no penological interest and serves only as punishment for the
12 detainees.
13 G. Ability to Maintain Personal Hygiene
14 115. I understand that detainees often arrive dirty to the facilities and are in need
15 of the opportunity to clean themselves and change clothing upon arrival. (ECF No. 2-1,
16 Ex. 33 ¶ 8; ECF No. 2-3, Ex. 39 ¶ 7; ECF No. 2-2, Ex. 26 ¶ 29. Detainees also need to be
17 able to clean their bodies prior to eating or after using the bathroom. Detainees however
18 are unable to maintain basic personal hygiene in these facilities and typically not
19 permitted to wash or change upon arrival or at any other time during their detention.
20 116. Out of the four facilities that we inspected, only Nogales and Tucson had
21 any facilities for detainees to shower themselves. CBP officials at Nogales told us that
22 these showers were rarely used and then only when a detainee showed evidence of
23 scabies. According to e3DM data produced by Defendants, only 115 detainees were given
24 showers out of 16,992 held in Tucson Sector Border Patrol stations between June 10 and
25 September 28, 2015. (Gaston Decl. ¶ 27.) Of those 115 showers, 20 were purportedly
26 provided at Casa Grande station, where we were told by CBP agents that no shower
27 facilities existed. (Gaston Decl. ¶ 60.)
28

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117. I observed soap dispenser located on the walls of many hold rooms.

2 However, they were sometimes broken or empty. During our inspection of Casa Grande

3 station, there were no soap dispensers and no evidence of soap at all for detainees to clean

4 themselves. In the Douglas station, the Holding Cell Inspection forms record there being

5 no soap during several days in October. (Ex. 111 at USA1526; Ex. 111 at USA1528; Ex.

6 111 at USA1537-38; Ex. 111 at USA1546-47; Ex. 111 at USA1549; Ex. 111 at

7 USA1557.)

8

118. I also inspected the toilets and sinks. Most cells had between one and four

9 metal sink/toilet units behind a low brick privacy wall or stall. (Ex. 55; Exs. 10, 23.)

10 Occasionally the sink and toilet were separate units (Ex. 44) A few toilets were not

11 operational. (Ex. 70.)

12

119. In only one case did I find a sink providing hot water.

13

120. We did not observe any towels that were made available to detainees.

14

121. The Core Jail Standards require:

15

1-CORE-4B-04 (Ref. 4-ALDF-4B-08, 4B-09, 4C-10)

Inmates, including those in medical housing units or

16

infirmaries, have access to showers toilets, and washbasins

with temperature controlled hot and cold running water

17

twenty-four hours per day. Inmates are able to use toilet

facilities without staff assistance when they are confined in

18

their cell/sleeping areas. Water for showers is thermostatically

controlled to temperatures ranging from 100 degrees to 120

19

degrees Fahrenheit.

20 (Ex. 199, 1-CORE-4B-04, at 26.)

21

122. The result is that detainees have no opportunity to adequately clean

22 themselves. Hot water is virtually nonexistent, soap is sometimes available but sometimes

23 it is not, there are no towels and there is only very rare access to a shower. Many

24 detainees come to the facilities after walking through the desert sometimes for days or

25 weeks. (ECF No. 2-1, Ex. 11 ¶ 3 (apprehended after walking in desert for 10 days); ECF

26 No. 2-2, Ex. 23 ¶¶ 5, 10 (lost in desert for a week).) It is likely their personal hygiene has

27 suffered prior to the time of their apprehension. (ECF No. 2-3, Ex. 39 ¶ 7.) When they

28 get to a CBP facility they do not have the opportunity to clean themselves. Especially

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1 given the lack of hot water, they are not able to properly clean themselves before eating or

2 after going to the bathroom. In a detention facility where detainees are held in

3 overcrowded conditions it is my opinion this creates an unreasonable risk for the spread of

4 disease or infection among the detainees and the staff who work there. I would think that

5 CBP administrators would want to do more to protect their own staff if for no other

6 reason.

7

123. Again, this is simple and basic protocol for the operation of a detention

8 facility. Typically, general population jail inmates can shower daily. Since the detainees

9 are constantly locked in their cells, they do not have an opportunity to shower during out

10 of cell time like a jail population inmate. It is my opinion that detainees should be

11 provided the opportunity to shower, after being searched, upon arrival at the facility. They

12 should have the opportunity to shower once every 3 days they are confined at the facility.

13

124. Once again, this practice of the CBP serves no legitimate penological or

14 custodial purpose, creates an unjustifiable risk of harm to detainees, and amounts to

15 nothing more than punishment.

16

125. Additionally, I understand from detainees’ declarations that they are not

17 provided with an adequate supply of sanitary napkins (ECF No. 2-2, Ex. 25 ¶ 11) or

18 diapers (id., Ex. 29 ¶ 15 (One and a half year old child without a clean diaper for nineteen

19 hours); id., Ex. 28 ¶ 11 (agents refused mother’s request that they get a diaper out of her

20 bag, so child was left in a diaper diaper); id., Ex. 30, ¶ 14.)

21

H. Unsafe Isolation Cells

22

126. At the Douglas facility there are 6 isolation cells that are completely

23 inadequate. These cells were very alarming to me and very dangerous for any detainee

24 who might be housed there and for the staff who must supervise them. There are no

25 windows to see into the cells in order to view inside nor are there food ports in the doors

26 to safely deliver meals. The in-cell cameras have at least one blind spot that does that

27 allow viewing into all parts of the cell.

28

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127. Since these cells are without windows in the doors and there is no food port

2 in the cell door, the CBP agents must open the cell door “blind” since they cannot see in

3 before opening the door. This increases the possibility of a serious assault that could occur

4 immediately upon opening the cell door.

5

128. In all the documents I have reviewed about the operations of CBP facilities I

6 have seen nothing that describes how these isolation cells are to be operated. As a result

7 there is no evidence that these cells are operated according to industry standards. It is well

8 know that the risk of suicide and self-harm is increased for persons housed in isolation.

9 For that reason alone, consistent with ACA standards and industry practice, half hour

10 checks are required of individuals held in isolation. Moreover, the surveillance cameras in

11 the cells at Douglas are mounted in such a way as to create a hazard for hanging.

12

129. It is my opinion that the isolation cells at Douglas should be shut down and

13 not utilized until the problems with the cell doors are fixed and the agency develops

14 policy for their use that are consistent with industry standards. Continuing their operation

15 creates the risk of serious harm for any detainee who may be housed there.

16

I. Medical Screening Standards in Detention Settings

17

130. Core Jail Standards provide that the admission processes for a newly-

18 admitted inmate include, but are not limited to, health screening, suicide screening, and

19 alcohol and drug screening. (Ex. 199, 1-CORE-2A-14, at 13.)

20

131. Specifically, the Core Jail Standards articulate mandatory guidelines for

21 “Intake physical and mental health screening.” (Ex. 199, 1-CORE-4C-09, at 30.)

22

132. The screening should commence upon the inmate’s arrival at the facility,

23 unless there is documentation of a medical screening within the previous 90 days or the

24 inmate is an intra-system transfer. (Id.)

25

133. The screening should be “conducted by health-trained staff or by qualified

26 health care personnel in accordance with protocols established by the health authority.”

27 (Id.)

28

134. Screening must include at least:

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1

• current or past medical conditions, including mental health problems and

2

communicable diseases;

3

• current medications, including psychotropic medications;

4

• history of hospitalization, including inpatient psychiatric care;

5

• suicidal risk assessment, including suicidal ideation or history of suicidal

6

behavior;

7

• use of alcohol and other drugs including potential need for

8

detoxification;

9

• dental pain, swelling, or functional impairment;

10

• possibility of pregnancy; and

11

• cognitive or physical impairment.

12

135. Screening should also include observation of the following:

13

• behavior, including state of consciousness, mental status, appearance,

14

conduct, tremor, or sweating;

15

• body deformities and other physical abnormalities;

16

• ease of movement;

17

• condition of the skin, including trauma markings, bruises, lesions,

18

jaundice, rashes, infestations, recent tattoos, and needle marks or other

19

indications of injection drug use; and

20

• symptoms of psychosis, depression, anxiety and/or aggression.

21

136. At the conclusion of the screening, the medical disposition of the inmate

22 should be determined as:

23

• refusal of admission until inmate is medically cleared;

24

• cleared for general population;

25

• cleared for general population with prompt referral to appropriate

26

medical or mental health care services;

27

• referral to appropriate medical or mental health care service for

28

emergency treatment; or

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1

• process for observation for high risk events, such as seizures,

2

detoxification head wounds, and so forth.

3

137. As explained by the Core Jail Standards, the purpose of this medical

4 screening is two-fold: “to prevent newly arrived inmates who pose a health or safety threat

5 to themselves or others from being admitted to the general population” and “to identify

6 inmates who require immediate medical attention.” (Ex. 199, 1-CORE-4C-09, at 31.)

7

J. Failure to Screen at Tucson Sector CBP Facilities

8

138. During our inspection of the Tucson Sector CBP facilities, as described

9 above, we were told by Defendants’ personnel that medical screening is not performed

10 upon detainees’ arrival at each station. We were also told that some agents are EMT-

11 trained and can be assigned these duties if they are available. I am not aware, however, of

12 any records received by Plaintiffs from Defendants that ensure sufficient EMT-trained

13 agents are on the staff rosters in each Tucson Sector CBP facility to consistently perform

14 medical screening of arriving detainees.

15

139. The declarations of numerous former detainees show the failure of CBP to

16 provide adequate medical screening, and even medical assistance upon request. (ECF No.

17 2-2, Ex. 23 ¶ 7 (no medical evaluation and denied assistance when she complained of

18 heavy vaginal bleeding); ECF No. 2-3, Ex. 38 ¶ 14 (refused medical assistance despite

19 swollen arm); id., Ex. 37 ¶¶ 22, 29, 31 (refused prescribed medication for pain leg

20 fracture); ECF No. 2-1, Ex. 9 ¶ 12-1; ECF No. 2-2, Ex. 19 ¶ 19.) Moreover, medications

21 that detainees have with them are confiscated. (ECF No. 201, Ex. 9 ¶ 14.)

22

140. The declarations also show that detainees arriving at CBP facilities in the

23 Tucson Sector are a particularly vulnerable population—exhausted, hungry, thirsty, many

24 who are sick or injured and in need of immediate medical care. (ECF No. 2-2, Ex. 23, ¶ 5;

25 ECF No. 2-2, Ex. 26, ¶¶ 15-16; id., Ex. 21¶ 14; ECF No. 2-3, Ex. 36 ¶ 8; ECF No. 2-1,

26 Ex.15 ¶ 18 (diarrhea and vomiting); id., Ex. 6 ¶ 15 (heart condition); ECF No. 2-1, Ex. 20

27 ¶ 15 (colitis); ECF No. 2-2, Ex. 23 ¶ 23 (heavy sustained vaginal bleeding); ECF No. 2-3,

28

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1 Ex. 37 ¶¶ 4, 21, 34 (pain from broken leg).) This makes medical screening and care all

2 the more crucial in the Tucson Sector setting.

3

K. Practices and Policies are Inadequate For A Facility That Holds

Detainees Over 10 Hours 4

5

141. I understand that Defendants have been ordered to make available to

6 Plaintiffs documents sufficient to show current detainee detention practices and

7 procedures for the four stations I inspected.

8

142. I have reviewed all of the policies produced. I find them to be either

9 inadequate or insufficient and out of line with accepted standards for detention facilities,

10 and woefully inadequate for facilities that detains people over 10 hours.

11

143. I understand that after the start of this litigation, in October 2015, the

12 government released new TEDS standards. The new TEDS standards significantly

13 extended the time period that Border Patrol agents may hold detainees to 72 hours or

14 more. (Ex. 95 at USA631.) The hold rooms are completely inadequate facilities for

15 housing detainees that long.

16

144. Apart from the deficiencies outlined above, CBP does not have policies on

17 basic items that are standards in all jails and other correctional facilities such as what I

18 have reference above for the use of isolation cells. Just a few examples of other standards

19 taken from the Core Jail Standards that are not addressed by current CBP policies include:

20

a. Required weekly, monthly and annual sanitation

inspections. (Ex. 199, 1-CORE-1A-01, at 1.) 21

b. All inmate rooms/cells provide the occupants with

22

access to natural light. Lighting throughout the facility

is sufficient for the tasks performed. (Id., 1-CORE-1A-

23

09, at 4.)

24

c. When a female inmate is housed in a facility, at least

one female staff member is on duty at all times. (Id., 1-

25

CORE-2A-05, at 10.)

26

d. If food services are provided by the facility, there are

weekly inspections of all food service areas, including

27

dining and food preparation areas and equipment.

Water temperature is checked and recorded daily. (Id.,

28

1-CORE-4A-05, at 24.)

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1

e. Inmates have access to exercise and recreation

opportunities. When available, at least one hour daily is

2

outside the cell or outdoors. (Id., 1-CORE-5C-01, at

27.)

3

f. Annual and pre-service training requirements (Id., 1-

4

CORE-7B-03, at 52-53.)

5

145. Ultimately the CBP facilities lack the focus on the detail of the operation of

6 detention facilities necessary to make certain they operate in a safe and humane manner.

7

146. CBP does not appear to have many of the accountability measures that are

8 typically found in corrections facilities including routine inspection systems in all of its

9 stations (daily, weekly, monthly) and outside audits. The purpose of these types of

10 procedures is to establish accountability for local managers and to see if their practices are

11 consistent with their policies. Corrections facilities require oversight and that appears to

12 be woefully lacking from the operation of CBP facilities. Additionally, CBP’s policies do

13 not cover all of the apparent practices within CBP facilities, leaving room for abuse. For

14 example, on July 21, 2015, the Tucson station appears to have ordered 30 spit hoods. (Ex.

15 118.) Spit hoods are typically transparent light hoods that are “designed to prevent the

16 wearer from biting and/or transferring or transmitting fluids (saliva and mucous) to 17 others.”7 As with any restraint and particularly since the spit hoods cover the eyes, nose,

18 and mouth of the wearer, spit hoods may pose dangers to the wearer if not fastened 19 properly.8 However none of the produced policies contained any guidelines regarding the

20 proper use of spit hoods (or any reference to spit hoods or similar devices at all).

21

147. CBP’s own records demonstrate failings in documenting and addressing

22 issues in its facilities. CBP appears to complete daily Processing Inspection Forms for

23 each of its stations. The same form is filled out for different shifts during the day.

24

148. These forms suggest that inspections, which have implications for the health

25 and safety of both detainees and CBP personnel, were not performed consistently or with

26 7 Policy 306: Handcuffing and Restraints, University of Merced Police
27 Department, available at http://police.ucmerced.edu/about/department-policies/policy-306

28

8 Id.

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1 appropriate care. For example, forms from Casa Grande station indicate that the video

2 recording system was not working, was working intermittently, or was possibly not

3 checked. (Ex. 104 at USA706-708, USA718-719, USA722-724, USA729-749) (for the

4 question of whether the video monitors and video loop is operational or in use, the “no”

5 box is checked).) Similarly, in the Casa Grande station, a lock on a cell was reported

6 broken during some shifts but not during others. (Id. at USA790-791 (No report of

7 broken lock during first shift on July 5 or July 6); Ex. 105 at USA814-816 (Lock on cell 9

8 reported broken during the second shift on July 5 but not on July 7); id. at USA836,

9 USA838 (Lock on cell 9 reported broken during third shift on July 5 and July 7); id. at

10 USA866, USA 868 (Lock on cell 9 reported broken during fourth shift on July 5 and July

11 7); Ex. 107 at USA1043, USA1047 (Lock broken again or still broken in September .)

12 For the Nogales station, several items are reported as needing repair on August 18,

13 including lighting (“At least one light out in every cell”), benches (“Some benches are

14 missing bolts”), and doors/locks. (Ex. 112 at USA1570.) No issues are reported the

15 following day. (Ex. 112 at USA1571.) However the same items are indicated as needing

16 repair on August 22. (Id. at USA1574.) Some forms for the Casa Grande station were not

17 filled out at all. (Ex. 104, USA728; Ex. 107 at USA1021, USA1029.) Additionally there

18 very few or no comments in the “Remarks” sections of forms for all stations which

19 suggested to me that the completion of the forms is largely a perfunctory exercise and not

20 an actual inspection.

21

149. CBP’s inconsistent practices illustrate their own misunderstanding that part

22 of their mission and responsibility is to attend to the basic and human needs of the

23 detainees.

24

150. The CBP is engaged in at least two primary functions—the apprehension of

25 detainees and their subsequent detention. It does not appear that they fully embrace,

26 accept or understand the detention function. Agents for the Border Patrol are expected to

27 be proficient at both functions. Structurally it would be best if those functions were

28 separated. Absent that approach, training for agents expected to perform both functions

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1 should be separated into separate tracks so that it is clear to agents that the skill sets are

2 different. Managing a detained population is complex work and deserves its own focus

3 and emphasis for the staff expected to perform those functions in order to provide for the

4 safe and humane housing of the detainees.

5

151. It is clear that the CBP facilities are designed and operated to hold detainees

6 for a short period of time. Whether or not it is 24, 48, 72 hours, or longer, CBP still needs

7 to learn, implement and then monitor all the basic functions of a detention operation. But

8 in order to minimize the amount of time people spend in these facilities, I strongly

9 recommend that CBP do a business process flow analysis of detainees from arrest to

10 transfer out of BP custody to identify roadblocks to moving them quickly. Performance

11 measures should then be established for agency managers to make sure they are constantly

12 focused on the important issue of moving detainees to their next location where full

13 services can be provided.

14

152. The impact of overcrowded facilities, lack of regular sleep, lack of access to

15 adequate food and water, inadequate sanitation, poor temperature control and ventilation,

16 and other factors described above is likely to create conditions of confinement that place

17 stress on detainees that is completely unnecessary for the safe and secure operation of a

18 detention facility. Such conditions can and do lead to increased risk for detainees and staff

19 alike as they introduce conflict for basic human necessities into an already stressful

20 environment. Upon arrival at the these facilities detainees are likely to be exhausted,

21 possibly in need of medical care, and some have fled their home country out of fear for

22 their safety or the safety of their loved ones. (ECF No. 2-3, Ex. 41 ¶ 24 (afraid of

23 returning to home country as relatives had been killed there); id., Ex. 38 ¶ 24 (same); ECF

24 No. 2-1, Ex. 8 ¶ 26 (afraid of returning to home country); id., Ex. 15 ¶ 34 (same); ECF

25 No. 2-2, Ex. 21 ¶ 28 (same).) Others are seeking be reunited with U.S. citizen children

26 and spouses – often after several years of separation. (ECF No. 2-1, Ex. 9 ¶ 36; id.,

27 Ex. 11 ¶ 23; ECF No. 2-2, Ex. 19 ¶ 27.) Good security is a combination of humane

28 treatment and adherence to accepted custody practices—not a focus on conditions that

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1 simply punish which appears to be the misguided approach taken in the operation of CBP

2 facilities.

3 V. 4

CONCLUSION 153. Based on my experience, review of the materials in this case, and the

5 literature, the conditions of confinement in these holding cells for periods longer than ten

6 hours are worse than national jails and prisons and, combined, clearly and unjustifiably

7 create risk of harm to detainees, and, in my professional judgment, serve no penological

8 or custodial interest.

9

154. I have worked in correctional organizations for 35 years. During my career

10 and since I commenced my work as a corrections consultant and expert witness nearly

11 four years ago I have been in countless prisons and jails. Those facilities house individuals

12 who have been charged with or convicted of felonies and misdemeanors. I have never

13 been in one that treats those confined in a manner that the CBP treats detainees. The

14 absence of medical screening upon arrival is unthinkable. Sufficient food, water and

15 clothing are fundamental to safe, secure and humane operation but I have never seen the

16 challenges the CBP creates for detainees for access to these basic necessities. I have seen

17 and experienced the effects of overcrowding but no jurisdiction would cram so many

18 people into so little space, without beds and bedding, that routinely occurs in CBP

19 facilities. The conditions of confinement I witnessed through my inspections and through

20 studying the records in this case are unthinkable in any other jurisdiction that I have seen

21 or heard about. The CBP are housing people in conditions that are unnecessarily harsh,

22 dangerous and contrary to accepted industry practices and standards. These conditions

23 seem to me to be designed to punish and that is not the role of the Border Patrol.

24

155. CBP must either take the necessary steps to ensure that detainees pass

25 through these short-term facilities in a matter of hours, or take the significant steps

26 required to make the conditions of confinement adequate for overnight stays.

27

28

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1 VI. CELL CAPACITIES, FLOOR PLANS, AND INSPECTION FORMS

2

156. Attached to the Appendix of Exhibits as Exhibit 83 is a true and correct

3 copy of a document produced by Defendants on or about September 4, 2015 and Bates

4 labeled USA000157, which purports to list the maximum cell capacities for each hold

5 room at Tucson station.

6

157. Attached to the Appendix of Exhibits as Exhibit 94 is a true and correct

7 copy of a document produced by Defendants on or about September 30, 2015 and Bates

8 labeled USA000617, which purports to list the maximum cell capacities for each hold

9 room at Nogales station.

10

158. Attached to the Appendix of Exhibits as Exhibit 99 is a true and correct

11 copy of a document produced by Defendants on October 19, 2015 and Bates labeled

12 USA000673-674, which purports to list the maximum cell capacities for each hold room

13 at Douglas and Casa Grande stations.

14

159. Attached to the Appendix of Exhibits as Exhibit 89 is a true and correct

15 copy of a document produced by Defendants on September 4, 2015 and Bates labeled

16 USA000359, which purports to be hand drawn sketches with measurements for cell

17 dimensions at Casa Grande station.

18

160. Attached to the Appendix of Exhibits as Exhibit 90 is a true and correct

19 copy of a document produced by Defendants on September 4, 2015 and Bates labeled

20 USA000360-363, which purports to be hand drawn sketches with measurements for cell

21 dimensions at Douglas station.

22

161. Attached to the Appendix of Exhibits as Exhibit 91 is a true and correct

23 copy of a document produced by Defendants on September 4, 2015 and Bates labeled

24 USA000364, which purports to be sketches with measurements for cell dimensions at

25 Nogales station.

26

162. Attached to the Appendix of Exhibits as Exhibit 92 is a true and correct

27 copy of a document produced by Defendants on September 4, 2015 and Bates labeled

28

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1 USA000365-371, which purports to be hand drawn sketches with measurements for cells

2 at Tucson station.

3

163. Attached to the Appendix of Exhibits as Exhibit 93 is a true and correct

4 copy of a document produced by Defendants on September 28, 2015 and Bates labeled

5 USA000573-586, which purports to be hand drawn sketches with additional

6 measurements for cells and fixtures at Tucson station.

7

164. Attached to the Appendix of Exhibits as Exhibit 93 is a true and correct

8 copy of a document produced by Defendants on September 28, 2015and Bates labeled

9 USA000587-591, which purports to be hand drawn sketches with additional

10 measurements for cells and fixtures at Casa Grande station.

11

165. Attached to the Appendix of Exhibits as Exhibit 93 is a true and correct

12 copy of a document produced by Defendants on September 28, 2015 and Bates labeled

13 USA000592-599, which purports to be hand drawn sketches with additional

14 measurements for cells and fixtures at Douglas station.

15

166. Attached to the Appendix of Exhibits as Exhibit 93 is a true and correct

16 copy of a document produced by Defendants on September 28, 2015 and Bates labeled

17 USA000600, which purports to be sketches with additional measurements for cells and

18 fixtures at Nogales station.

19

167. Attached to the Appendix of Exhibits as Exhibit 117 is a true and correct

20 copy of a document produced by Defendants on October 29, 2015 and Bates labeled

21 USA002065, which purports to be the processing area blueprint for Casa Grande station.

22

168. Attached to the Appendix of Exhibits as Exhibit 117 is a true and correct

23 copy of a document produced by Defendants on October 29, 2015 and Bates labeled

24 USA002066, which purports to be the processing area blueprint for Nogales Grande

25 station.

26

169. Attached to the Appendix of Exhibits as Exhibit 117 is a true and correct

27 copy of a document produced by Defendants on October 29,, 2015 and Bates labeled

28 USA002067, which purports to be the processing area blueprint for Douglas station.

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1

170. Attached to the Appendix of Exhibits as Exhibit 117 is a true and correct

2 copy of a document produced by Defendants on October 29, 2015 and Bates labeled

3 USA002068, which purports to be the processing area blueprint for Tucson station.

4

171. Attached to the Appendix of Exhibits as Exhibits 105, 106, and 107 are true

5 and correct copies of documents produced by Defendants on November 9, 2015, which

6 purport to be processing inspection forms for Casa Grande station between June and

7 October, 2015.

8

172. Attached to the Appendix of Exhibits as Exhibits 109, 110, and 111 are true

9 and correct copies of documents produced by Defendants on November 9, 2015, which

10 purport to be Holding Cell Inspection Forms for Douglas station between June and

11 October, 2015.

12

173. Attached to the Appendix of Exhibits as Exhibits 112 and 113 are true and

13 correct copies of documents produced by Defendants on November 9, 2015, which

14 purport to be Holding Cell Checklists for Nogales station between August and October,

15 2015.

16

174. Attached to the Appendix of Exhibits as Exhibits 114, 115, and 116 are true

17 and correct copies of documents produced by Defendants on November 9, 2015, which

18 purport to be Holding Cell Checklists for Tucson station between July and October, 2015.

19 VII. AUTHENTICATION OF INSPECTION PHOTOGRAPHS

20

175. Exhibit 50 is a true and correct copy of a photograph taken during Plaintiffs’

21 inspection of Tucson station on September 8, 2015, which accurately depicts a rolling cart

22 at Tucson station containing paper cups and folded Mylar blankets in a cardboard box.

23

176. Exhibit 51 is a true and correct copy of a photograph taken during Plaintiffs’

24 inspection of Tucson station on September 8, 2015, which accurately depicts a storage

25 area at Tucson station with metal shelving and pallets containing office supplies,

26 drinking cups, diapers, and other items.

27

28

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1

177. Exhibit 52 is a true and correct copy of a photograph taken during Plaintiffs’

2 inspection of Tucson station on September 11, 2015, which accurately depicts Room 19 in

3 Tucson station with a view across the room towards the toilets.

4

178. Exhibit 53 is a true and correct copy of a photograph taken during Plaintiffs’

5 inspection of Tucson station on September 11, 2015, which accurately depicts Room 19 in

6 Tucson station with a close-up view of the toilet/sink unit inside a stall.

7

179. Exhibit 54 is a true and correct copy of a photograph taken during Plaintiffs’

8 inspection of Tucson station on September 11, 2015, which accurately depicts Room 19 in

9 Tucson station with a view from the toilet stall towards the door and windows.

10

180. Exhibit 55 is a true and correct copy of a photograph taken during Plaintiffs’

11 inspection of Tucson station on September 11, 2015, which accurately depicts Room 19 in

12 Tucson station with a close-up view of the toilet/sink unit inside a stall.

13

181. Exhibit 56 is a true and correct copy of a photograph taken during Plaintiffs’

14 inspection of Tucson station on September 11, 2015, which accurately depicts Room 19 in

15 Tucson station with a view across the room towards the toilet stalls.

16

182. Exhibit 57 is a true and correct copy of a photograph taken during Plaintiffs’

17 inspection of Tucson station on September 11, 2015, which accurately depicts Room 19 in

18 Tucson station with a close-up view of underneath a toilet bowl.

19

183. Exhibit 58 is a true and correct copy of a photograph taken during Plaintiffs’

20 inspection of Tucson station on September 11, 2015, which accurately depicts Room 19 in

21 Tucson station with a view across the room towards the toilet stalls.

22

184. Exhibit 60 is a true and correct copy of a photograph taken during Plaintiffs’

23 inspection of Tucson station on September 11, 2015, which accurately depicts Room 18 in

24 Tucson station with a view of benches and toilet stalls.

25

185. Exhibit 61 is a true and correct copy of a photograph taken during Plaintiffs’

26 inspection of Tucson station on September 11, 2015, which accurately depicts Room 18 in

27 Tucson station with a view of cement benches.

28

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1

186. Exhibit 62 is a true and correct copy of a photograph taken during Plaintiffs’

2 inspection of Tucson station on September 11, 2015, which accurately depicts Room 18 in

3 Tucson station with a view from the door to the back of the cell.

4

187. Exhibit 63 is a true and correct copy of a photograph taken during Plaintiffs’

5 inspection of Tucson station on September 11, 2015, which accurately depicts Room 18 in

6 Tucson station with a close-up view of a toilet stall.

7

188. Exhibit 64 is a true and correct copy of a photograph taken during Plaintiffs’

8 inspection of Tucson station on September 11, 2015, which accurately depicts Room 18 in

9 Tucson station with a close-up view of a handicapped toilet/sink unit in stall

10

189. Exhibit 65 is a true and correct copy of a photograph taken during Plaintiffs’

11 inspection of Tucson station on September 11, 2015, which accurately depicts Room 18 in

12 Tucson station with a close-up view of windows and a door frame.

13

190. Exhibit 66 is a true and correct copy of a photograph taken during Plaintiffs’

14 inspection of Tucson station on September 11, 2015, which accurately depicts Room 18 in

15 Tucson station with a close-up view of underneath the toilet/sink unit in a stall.

16

191. Exhibit 67 is a true and correct copy of a photograph taken during Plaintiffs’

17 inspection of Tucson station on September 11, 2015, which accurately depicts Room 1 in

18 Tucson station with a close-up view of a soap dispenser and sink/backsplash.

19

192. Exhibit 68 is a true and correct copy of a photograph taken during Plaintiffs’

20 inspection of Tucson station on September 11, 2015, which accurately depicts Room 4 in

21 Tucson station with a view across the cell towards the back of the room.

22

193. Exhibit 69 is a true and correct copy of a photograph taken during Plaintiffs’

23 inspection of Tucson station on September 11, 2015, which accurately depicts Room 4 in

24 Tucson station with a close-up view of a privacy wall.

25

194. Exhibit 70 is a true and correct copy of a photograph taken during Plaintiffs’

26 inspection of Tucson station on September 11, 2015, which accurately depicts Room 4 in

27 Tucson station with a close-up view of a toilet/sink unit in a stall.

28

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1

195. Exhibit 71 is a true and correct copy of a photograph taken during Plaintiffs’

2 inspection of Tucson station on September 11, 2015, which accurately depicts Room 4 in

3 Tucson station with a close-up view of cement benches.

4

196. Exhibit72 is a true and correct copy of a photograph taken during Plaintiffs’

5 inspection of Tucson station on September 11, 2015, which accurately depicts Room 4 in

6 Tucson station with a close-up view of cement benches.

7

197. Exhibit 73 is a true and correct copy of a photograph taken during Plaintiffs’

8 inspection of Tucson station on September 11, 2015, which accurately depicts Room 4 in

9 Tucson station with a close-up view of cement benches.

10

198. Exhibit 74 is a true and correct copy of a photograph taken during Plaintiffs’

11 inspection of Tucson station on September 11, 2015 which accurately depicts Room 4 in

12 Tucson station with a view across cell in front of toilet stalls.

13

199. Exhibit 75 is a true and correct copy of a photograph taken during Plaintiffs’

14 inspection of Tucson station on September 11, 2015, which accurately depicts Room 6 in

15 Tucson station with a view of cement benches.

16

200. Exhibit 76 is a true and correct copy of a photograph taken during Plaintiffs’

17 inspection of Tucson station on September 11, 2015, which accurately depicts Room 6 in

18 Tucson station with a view of underneath a toilet/sink unit.

19

201. Exhibit 77 is a true and correct copy of a photograph taken during Plaintiffs’

20 inspection of Tucson station on September 11, 2015, which accurately depicts Room 6 in

21 Tucson station with a close-up view of underneath a toilet/sink unit.

22

202. Exhibit 1 is a true and correct copy of a photograph taken during Plaintiffs’

23 inspection of Casa Grande station on September 9, 2015, which accurately depicts a

24 storage area in Casa Grande station with metal shelving containing items including

25 drinking cups, plastic liners, baby diapers, and sanitary napkins.

26

203. Exhibit 2 is a true and correct copy of a photograph taken during Plaintiffs’

27 inspection of Casa Grande station on September 9, 2015, which accurately depicts the

28 back of a package of microwavable burritos at Casa Grande station.

DECL. OF ELDON VAIL IN SUPPORT OF PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION

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1

204. Exhibit 3 is a true and correct copy of a photograph taken during Plaintiffs’

2 inspection of Casa Grande station on September 9, 2015, which accurately depicts a

3 storage room in Casa Grande station with metal shelving containing three sleeping mats.

4

205. Exhibit 4 is a true and correct copy of a photograph taken during Plaintiffs’

5 inspection of Casa Grande station on September 9, 2015, which accurately depicts a box

6 of Mylar blankets in Casa Grande station.

7

206. Exhibit 5 is a true and correct copy of a photograph taken during Plaintiffs’

8 inspection of Casa Grande station on September 9, 2015, which accurately depicts a food

9 heating unit and/or microwave in Casa Grande station.

10

207. Exhibit 6 is a true and correct copy of a photograph taken during Plaintiffs’

11 inspection of Casa Grande station on September 9, 2015, which accurately depicts a

12 janitor's closet in Casa Grande station.

13

208. Exhibit 7 is a true and correct copy of a photograph taken during Plaintiffs’

14 inspection of Casa Grande station on September 9, 2015, which accurately depicts holding

15 cell no. 9 in Casa Grande station from the door.

16

209. Exhibit 8 is a true and correct copy of a photograph taken during Plaintiffs’

17 inspection of Casa Grande station on September 9, 2015, which accurately depicts holding

18 cell no. 9 in Casa Grande station with a view of two toilet/sink units.

19

210. Exhibit 9 is a true and correct copy of a photograph taken during Plaintiffs’

20 inspection of Douglas station on September 10, 2015, which accurately depicts holding

21 cell S South Black in Douglas station with a close-up view of the floor behind the

22 toilet/sink unit.

23

211. Exhibit 10 is a true and correct copy of a photograph taken during Plaintiffs’

24 inspection of Douglas station on September 10, 2015, which accurately depicts holding

25 cell S South Yellow and/or S South Blue in Douglas station with a close-up view of the

26 toilet/sink area.

27

212. Exhibit 11 is a true and correct copy of a photograph taken during Plaintiffs’

28 inspection of Douglas station on September 10, 2015, which accurately depicts holding

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1 cell S South Yellow and/or S South Blue in Douglas station with a close-up view of the

2 toilet/sink unit.

3

213. Exhibit 12 is a true and correct copy of a photograph taken during Plaintiffs’

4 inspection of Douglas station on September 10, 2015, which accurately depicts holding

5 cell S South Yellow and/or S South Blue in Douglas station with a close-up view of side

6 of the sink and wall.

7

214. Exhibit 13 is a true and correct copy of a photograph taken during Plaintiffs’

8 inspection of Douglas station on September 10, 2015, which accurately depicts holding

9 cell N North Blue in Douglas station with a close-up view of the toilet bowl.

10

215. Exhibit 14 is a true and correct copy of a photograph taken during Plaintiffs’

11 inspection of Douglas station on September 10, 2015, which accurately depicts holding

12 cell N North Blue in Douglas station with a close-up view of human excrement on the

13 privacy wall of the toilet.

14

216. Exhibit 15 is a true and correct copy of a photograph taken during Plaintiffs’

15 inspection of Douglas station on September 10, 2015, which accurately depicts holding

16 cell N North Green in Douglas station with a view from opened door.

17

217. Exhibit 17 is a true and correct copy of a photograph taken during Plaintiffs’

18 inspection of Douglas station on September 10, 2015, which accurately depicts holding

19 cell N North Black in Douglas station with a close-up view of the toilet bowl.

20

218. Exhibit 18 is a true and correct copy of a photograph taken during Plaintiffs’

21 inspection of Douglas station on September 10, 2015, which accurately depicts holding

22 cell N North Yellow in Douglas station with a view from the door.

23

219. Exhibit 19 is a true and correct copy of a photograph taken during Plaintiffs’

24 inspection of Douglas station on September 10, 2015, which accurately depicts holding

25 cell N North Yellow in Douglas station with a view from the side wall towards the privacy

26 wall.

27

28

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1

220. Exhibit 20 is a true and correct copy of a photograph taken during Plaintiffs’

2 inspection of Douglas station on September 10, 2015, which accurately depicts holding

3 cell N North Yellow in Douglas station with a view of the toilet/sink unit.

4

221. Exhibit 21 is a true and correct copy of a photograph taken during Plaintiffs’

5 inspection of Douglas station on September 10, 2015, which accurately depicts holding

6 cell N North Yellow in Douglas station with a close-up view of the floor next to the toilet.

7

222. Exhibit 22 is a true and correct copy of a photograph taken during Plaintiffs’

8 inspection of Douglas station on September 10, 2015, which accurately depicts holding

9 cell N North Yellow in Douglas station with a close-up view of spotted stainless steel

10

223. Exhibit 23 is a true and correct copy of a photograph taken during Plaintiffs’

11 inspection of Douglas station on September 10, 2015, which accurately depicts holding

12 cell N North Yellow in Douglas station with a view of the toilet/sink unit.

13

224. Exhibit 24 is a true and correct copy of a photograph taken during Plaintiffs’

14 inspection of Douglas station on September 10, 2015, which accurately depicts holding

15 cell N North Yellow in Douglas station with a close-up view of the floor drain.

16

225. Exhibit 25 is a true and correct copy of a photograph taken during Plaintiffs’

17 inspection of Douglas station on September 10, 2015, which accurately depicts isolation

18 cell No. 1 in Douglas station with a close-up view of the floor and sleeping mat.

19

226. Exhibit 26 is a true and correct copy of a photograph taken during Plaintiffs’

20 inspection of Nogales station on September 11, 2015, which accurately depicts holding

21 cell no. 3 in Nogales station with a view into the cell from the door.

22

227. Exhibit 27 is a true and correct copy of a photograph taken during Plaintiffs’

23 inspection of Nogales station on September 11, 2015, which accurately depicts holding

24 cell no. 3 in Nogales station with a view into the cell from the door.

25

228. Exhibit 28 is a true and correct copy of a photograph taken during Plaintiffs’

26 inspection of Nogales station on September 11, 2015, which accurately depicts holding

27 cell no. 3 in Nogales station with a close-up of sleeping mats on benches.

28

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1

229. Exhibit 29 is a true and correct copy of a photograph taken during Plaintiffs’

2 inspection of Nogales station on September 11, 2015, which accurately depicts holding

3 cell no. 3 in Nogales station with a close-up of sleeping mats on benches.

4

230. Exhibit 30 is a true and correct copy of a photograph taken during Plaintiffs’

5 inspection of Nogales station on September 11, 2015, which accurately depicts holding

6 cell no. 3 in Nogales station with a close-up view of a stain on the floor.

7

231. Exhibit 31 is a true and correct copy of a photograph taken during Plaintiffs’

8 inspection of Nogales station on September 11, 2015, which accurately depicts holding

9 cell no. 5 in Nogales station with a close-up view of an air vent.

10

232. Exhibit 32 is a true and correct copy of a photograph taken during Plaintiffs’

11 inspection of Nogales station on September 11, 2015, which accurately depicts holding

12 Cell no. 1in Nogales station with a close-up view of a sink and backsplash.

13

233. Exhibit 33 is a true and correct copy of a photograph taken during Plaintiffs’

14 inspection of Nogales station on September 11, 2015, which accurately depicts holding

15 cell no. 1 in Nogales station with a close-up view of a ceiling vent.

16

234. Exhibit 34 is a true and correct copy of a photograph taken during Plaintiffs’

17 inspection of Nogales station on September 11, 2015, which accurately depicts holding

18 cell no. 1 in Nogales station with a view of a corner of the floor near a cement bench.

19

235. Exhibit 35 is a true and correct copy of a photograph taken during Plaintiffs’

20 inspection of Nogales station on September 11, 2015, which accurately depicts holding

21 cell no. 4 in Nogales station with a close-up view of an orange Igloo water container.

22

236. Exhibit 36 is a true and correct copy of a photograph taken during Plaintiffs’

23 inspection of Nogales station on September 11, 2015, which accurately depicts a view of

24 the floor at Nogales station underneath a toilet/sink unit.

25

237. Exhibit 37 is a true and correct copy of a photograph taken during Plaintiffs’

26 inspection of Nogales station on September 11, 2015, which accurately depicts holding

27 cell no. 2 in Nogales station with a close-up view of the cinder block walls.

28

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1

238. Exhibit 38 is a true and correct copy of a photograph taken during Plaintiffs’

2 inspection of Nogales station on September 11, 2015, which accurately depicts a cleaning

3 supply room in Nogales station viewed from the door.

4

239. Exhibit 42 is a true and correct copy of a photograph taken during Plaintiffs’

5 inspection of Nogales station on September 11, 2015, which accurately depicts Room C in

6 Nogales station with a close-up view of two microwave ovens.

7

240. Exhibit 43 is a true and correct copy of a photograph taken during Plaintiffs’

8 inspection of Nogales station on September 11, 2015, which accurately depicts Room 8 in

9 Nogales station with a close-up view of underneath the toilet bowl.

10

241. Exhibit 44 is a true and correct copy of a photograph taken during Plaintiffs’

11 inspection of Nogales station on September 11, 2015, which accurately depicts Room 7 in

12 Nogales station with a close-up view of underneath the sink.

13

242. Exhibit 45 is a true and correct copy of a photograph taken during Plaintiffs’

14 inspection of Nogales station on September 11, 2015, which accurately depicts Room 7 in

15 Nogales station showing a corner of the floor.

16

243. Exhibit 46 is a true and correct copy of a photograph taken during Plaintiffs’

17 inspection of Nogales station on September 11, 2015, which accurately depicts Room 7 in

18 Nogales station with a close-up view of a corner wall next to the door.

19

244. Exhibit 47 is a true and correct copy of a photograph taken during Plaintiffs’

20 inspection of Nogales station on September 11, 2015, which accurately depicts Shower

21 Room 2 in Nogales station viewed from the door.

22

245. Exhibit 48 is a true and correct copy of a photograph taken during Plaintiffs’

23 inspection of Nogales station on September 11, 2015, which accurately depicts Station

24 ASID at Nogales station with a view of air-conditioning controls and computers.

25 /// 26 /// 27 /// 28 ///

DECL. OF ELDON VAIL IN SUPPORT OF PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION

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JI"
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1

246. Exhibit 49 is a true and correct copy of a photograph taken during Plaintiffs'

2 inspection of Nogales station on September 11, 2015, which accurately depicts Station

3 4

u ' ASID at Nogales station with a view of air-conditioning controls. Executed this _t-_JL+_'-d\ay of December, 2015.

5

6

ELDON VAIL

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECL. OF ELDON VAIL lN SUPPORT OF PLAINTIFFS, MOT. FOR PRELIMINARY INJUNCTION

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Case No. 4:15-cv-00250-DCB ·

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Attachment A

Case 4:15-cv-00250-DCB Document 206-2 Filed 08/17/16 Page 52 of 59

ELDON VAIL
1516 8th Ave SE
Olympia, WA. 98501 360-349-3033
Nodleliav@comcast.net

WORK HISTORY

Nearly 35 years working in and administering adult and juvenile institutions, and probation and parole programs, starting at the entry level and rising to Department Secretary. Served as Superintendent of 3 adult institutions, maximum to minimum security, male and female. Served as Secretary for the Washington State Department of Corrections (WADOC) from 2007 until 201l.

! Secretary

WADOC

! Deputy Secretary

WADOC

! Assistant Deputy Secretary WADOC

! Assistant Director for Prisons WADOC

! Superintendent

McNeil Island Corrections Center

! Superintendent

WA. Corrections Center for Women

! Correctional Program Manager WA. Corrections Center

! Superintendent

Cedar Creek Corrections Center

! Correctional Program Manager Cedar Creek Corrections Center

! Juvenile Parole Officer

Division of Juvenile Rehabilitation

! Correctional Unit Supervisor Cedar Creek Corrections Center

! Juvenile Institution Counselor Division of Juvenile Rehabilitation

2007-2011 1999-2006 1997-1999 1994-1997 1992-1994 1989-1992 1988 1987 1984-1987 1984 1979-1983 1974-1979

SKILLS AND ABILITIES
! Ability to analyze complex situations, synthesize the information and find practical solutions that are acceptable to all parties.

! A history of work experience that demonstrates how a balance of strong security and robust inmate programs best improves institution and community safety.

! Leadership of a prison system with very little class action litigation based on practical knowledge that constitutional conditions are best achieved through negotiation with all parties and not through litigation.

! Extensive experience as a witness, both in deposition and at trial.

! Experience working with multiple Governors, legislators of both parties, criminal justice partners and constituent groups in the legislative and policymaking process.

1

Case 4:15-cv-00250-DCB Document 206-2 Filed 08/17/16 Page 53 of 59
! Skilled labor negotiator for over a decade. Served as chief negotiator with the Teamsters and the Washington Public Employees Association for Collective Bargaining Agreements. Chaired Labor Management meetings with Washington Federation of State Employees.
HIGHLIGHTS OF CAREER ACCOMPLISHMENTS
! Reduced violence in adult prisons in Washington by over 30% during my tenure as Secretary and Deputy Secretary even though the prison population became much more violent and high risk during this same time period.
! Long term collaboration with the University of Washington focusing on improving treatment for the mentally ill in prison and the management of prisoners in and through solitary confinement.
! Implemented and administered an extensive array of evidence based and promising programs:
o Education, drug and alcohol, sex offender and cognitive treatment programs. o Implemented sentencing alternatives via legislation and policy, reducing the
prison populations of non-violent, low risk offenders, including the Drug Offender Sentencing Alternative and, as the Secretary, the Family and Offender Sentencing Alternative. http://www.doc.wa.gov/community/fosa/default.asp o Pioneered extensive family based programs resulting in reductions in use of force incidents and infractions, as well as improved reentry outcomes for program participants. o Established Intensive Treatment Program for mentally ill inmates with behavioral problems. o Established step down programs for long-term segregation inmates resulting in significant reduction in program graduate returns to segregation. http://www.thenewstribune.com/2012/07/10/2210762/isolating-prisoners-lesscommon.html
! Initiated the Sustainable Prisons Project http://blogs.evergreen.edu/sustainableprisons/
! Improved efficiency in the agency by administrative consolidation, closing 3 high cost institutions and eliminating over 1,200 positions. Housed inmates safely at lowest possible custody levels, also resulting in reduced operating costs.
! Increased partnerships with non-profits, law enforcement and community members in support of agency goals and improved community safety.
! Resolved potential class action lawsuit regarding religious rights of Native Americans. http://seattletimes.nwsource.com/html/opinion/2015464624_guest30galanda.html
2

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! Successful settlement of the Jane Doe class action law suit, a PREA case regarding female offenders in the state’s prisons for women.
! Led the nation’s corrections directors to support fundamental change in the Interstate Compact as a result of the shooting of 4 police officers in Lakewood, WA.
! Dramatically improved media relations for the department by being aggressively open with journalists, challenging them to learn the difficult work performed by corrections professionals on a daily basis.
EDUCATION AND OTHER BACKGROUND INFORMATION ! Bachelor of Arts - The Evergreen State College, Washington – 1973 ! Post graduate work in Public Administration - The Evergreen State College, Washington - 1980 and 1981 ! National Institute of Corrections and Washington State Criminal Justice Training Commission - various corrections and leadership training courses ! Member of the American Correctional Association ! Associate member, Association of State Correctional Administrators (ASCA) ! Guest Speaker, Trainer and Author for the National Institute of Corrections (NIC) ! Commissioner, Washington State Criminal Justice Training Commission 20022006, 2008-2011 ! Member, Washington State Sentencing Guidelines Commission 2007-2011 ! Instructor for Correctional Leadership Development for the National Institute of Corrections ! Author of Going Beyond Administrative Efficiency—The Budget Crisis in the State of Washington, published in Topics of Community Corrections by NIC, 2003 ! Advisory Panel Member, Correctional Technology—A User’s Guide ! Consultant for Correctional Leadership Competencies for the 21st Century, an NIC publication
3

Case 4:15-cv-00250-DCB Document 206-2 Filed 08/17/16 Page 55 of 59
! Co-chair with King County Prosecutor Dan Satterberg, Examining the Tool Box: A Review of Supervision of Dangerous Mentally Ill Offenders http://your.kingcounty.gov/prosecutor/DMIO%20-WorkgroupFinalReport.pdf
! Consultant for Correctional Health Care Executive Curriculum Development, an NIC training program, 2012
! Guest lecturer on solitary confinement, University of Montana Law School in 2012
! On retainer for Pioneer Human Services from July 2012 - July 2013
! On retainer for BRK Management Services from September 2012 – April 2013
! Guest Editorial, Seattle Times, February 22, 2014 http://www.seattletimes.com/opinion/guest-opinions-should-washington-stateabolish-the-death-penalty/
CURRENT ACTIVITIES ! Serve on the Board of Advisors for Huy, a non-profit supporting Native American
Prisoners
! Registered Agent for the Association of State Correctional Administrators (ASCA) in Washington
! Retained as an expert witness or correctional consultant in the following cases:
o Mitchell v. Cate, No. 08-CV-1196 JAM EFB United States District Court, Eastern District of California, Declarations, March 4, 2013, May 15, 2013 and June 7, 2013 Deposed, July 9, 2013 Case settled, October 2014
o Parsons, et al v. Ryan, No. CV 12-06010 PHX-NVW United States District Court of Arizona Declarations and reports, November 8, 2013, January 31, 2014, February 24, 2014, September 4, 2014 Deposed, February 28, 2014 and September 17, 2014 Case settled, October 2014
4

Case 4:15-cv-00250-DCB Document 206-2 Filed 08/17/16 Page 56 of 59
o Gifford v. State of Oregon, No. 6:11-CV-06417-TC United States District Court, For the District of Oregon, Eugene Division, Expert report, March 29, 2013 Case settled, May 2013
o Ananachescu v. County of Clark, No. 3:13-cv-05222-BHS United States District Court, Western District of Tacoma Case settled, February 2014
o Coleman et al v. Brown, et al, No. 2:90-cv-0520 LKK JMP P United State District Court, Eastern District of California, Declarations, March 14, 2013, May 29, 2013, August 23, 2013 and February 11, 2014 Deposed, March 19, 2013 and June 27, 2013 Testified, October 1, 2, 17 and 18, 2013
o Peoples v. Fischer, No. 1:11-cv-02694-SAS United States District Court, Southern District of New York Interim settlement agreement reached February 19, 2014, Negotiations ongoing
o Dockery v. McCarty, No. 3:13-cv-326 TSL JMR United States District Court for the Southern District of Mississippi, Jackson Division Report, June 16, 2014
o C.B., et al v. Walnut Grove Correctional Authority et al, No. 3:10-cv-663 DPS-FKB, United States District Court for the Southern District of Mississippi, Jackson Division Memo to ACLU and Southern Poverty Law Center, March 14, 2014, filed with the court Reports to the court August 4, 2014 and February 10, 2015 Testified April 1, 2 and 27, 2015
o Graves v. Arpaio, No. CV-77-00479-PHX-NVW, United States District Court of Arizona Declaration, November 15, 2013 Testified on March 5, 2014
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o Wright v. Annucci, et al, No. 13-CV-0564 (MAD)(ATB) United States District Court, Northern District of New York Reports, April 19, 2014 and December 12, 2014
o Corbett v. Branker, No. 5:13 CT-3201-BO United States District Court, Eastern District of North Carolina, Western District Special Master appointment November 18, 2013 Expert Report, January 14, 2014 Testified, March 21, 2014
o Fontano v. Godinez, No. 3:12-cv-3042 United States District Court, Central District of Illinois, Springfield Division Report, August 16, 2014
o Atencio v. Arpaio, No. CV12-02376-PHX-PGR United States District Court of Arizona Reports, February 14, 2014 and May 12, 2014 Deposed on July 30, 2014
o State of Oregon v. James DeFrank, Case # 11094090C Malheur County, Oregon
o Disability Rights, Montana, Inc. v. Richard Opper, No. CV-14-25-BU-SHE United State District Court for the District of Montana, Butte Division
o Larry Heggem v. Snohomish County, No. CV-01333-RSM United States District Court, Western District of Washington at Seattle Report, May 29, 2014 Deposed, June 27, 2014
o Padilla v. Beard, et al, Case 2:14-at-00575 United States District Court, Eastern District of California, Sacramento Division Declaration November 19, 2015
6

Case 4:15-cv-00250-DCB Document 206-2 Filed 08/17/16 Page 58 of 59
o Dunn et al v. Dunn et al, No. 2:14-cv-00601-WKW-TFM United States District Court, Middle District of Alabama Declarations, September 3, 2014, April 29, 2015 and June 3, 2015
o Sassman v. Brown, No. 2:14-cv-01679-MCE-KJN, United States District Court, Eastern District of California, Sacramento Division Declaration, August 27, 2014, Report, December 5, 2014 Deposed, December 15, 2014
o Manning v. Hagel, No. 1:14-cv-01609 United States District Court for the District of Columbia
o Doe v. Michigan Department of Corrections No. 5:13-cv-14356-RHC-RSW United States District Court, Eastern District of Michigan, Southern Division
o Robertson v. Struffert, et al Case 4:12-cv-04698-JSW United States District Court, Northern District of California Declaration March 16, 2015 Deposed May 4, 2015 Case settled, October 2015
o Commonwealth of Virginia v. Reginald Cornelius Latson Case No: GC14008381—00 General District Court of the County of Stafford Report January 12, 2015 Pardon granted
o Star v. Livingston Case No: 4:14-cv-03037 United States District Court, Southern District of Texas, Houston Division Report March 3, 2015
7

Case 4:15-cv-00250-DCB Document 206-2 Filed 08/17/16 Page 59 of 59
o Redmond v. Crowther Civil No. 2:13-cv-00393-PMW United States District Court, Central Division, State of Utah Report April 28, 2015 Deposed July 28, 2015
o Doe v. Johnson Case 4:15-cv-00250-DCB United States District Court for the District of Arizona
o Flores v. United States of America Civil Action No 14-3166 United States District Court, Eastern District of New York Report August 14, 2015
o Bailey v. Livingston Civil Action No. 4:14-cv-1698 United States District Court, Southern District of Texas, Houston Division Report August 5, 2015 Deposed December 2, 2015
o Rasho v. Godinez Civil Action No. 07-CV-1298 United States District Court, Central Division of Illinois, Peoria Division
o Morgal v. Williams No. CV 12-280-TUC-CKJ United States District Court for the District of Arizona
o Williams v. Snohomish County Case No. 15-2-22078-1 SEA Superior Court for the State of Washington, King County
o Sacramento County Retained to evaluate conditions for mentally ill inmates in Sacramento County jail
8

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 1 of 41

1 Harold J. McElhinny* Kevin M. Coles*
2 Elizabeth G. Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: HMcElhinny@mofo.com Email: KColes@mofo.com
6 Email: EBalassone@mofo.com

7 Attorneys for Plaintiffs

8 * Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

9 Additional counsel listed on next page

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

14 Jane Doe #1; Jane Doe #2; Norlan Flores, on behalf of themselves and all others
15 similarly situated,

16 v.

Plaintiffs,

17 Jeh Johnson, Secretary, United States

Department of Homeland Security, in his

18 official capacity; R. Gil Kerlikowske,

Commissioner, United States Customs &

19 Border Protection, in his official capacity;

Michael J. Fisher, Chief of the United States

20 Border Patrol, in his official capacity;

Jeffrey Self, Commander, Arizona Joint

21 Field Command, in his official capacity;

22

Manuel Padilla, Jr., Chief Patrol AgentTucson Sector, in his official capacity,

23

Defendants.

24

Case No. 4:15-cv-00250-TUC-DCB DECLARATION OF ROBERT W. POWITZ IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

25

26

27

28

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Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 2 of 41

1 Colette Reiner Mayer* MORRISON & FOERSTER LLP
2 755 Page Mill Road Palo Alto, CA 94304-1018
3 Telephone: (650) 813-5600 Facsimile: (650) 494-0792
4 Email: CRMayer@mofo.com 5

Travis Silva* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: tsilva@lccr.com

6 Louise C. Stoupe*

Pieter S. de Ganon*

Victoria Lopez (Bar No. 330042)**

7 MORRISON & FOERSTER LLP

Daniel J. Pochoda (Bar No. 021979)

Shin-Marunouchi Building, 29th Floor

James Duff Lyall (Bar No. 330045)**

8 5-1, Marunouchi 1-Chome

ACLU FOUNDATION OF ARIZONA

Tokyo, Chiyoda-ku 100-6529, Japan

3707 North 7th Street, Suite 235

9 Telephone: +81-3-3214-6522

Phoenix, AZ 85014

Facsimile: +81-3-3214-6512

Telephone: (602) 650-1854

10 Email: LStoupe@mofo.com

Facsimile: (602) 650-1376

Email: PdeGanon@mofo.com

Email: vlopez@acluaz.org

11

Email: dpochoda@acluaz.org

Email: jlyall@acluaz.org

12 Linton Joaquin*

Karen C. Tumlin*

13 Nora A. Preciado*

NATIONAL IMMIGRATION LAW

14 CENTER

3435 Wilshire Boulevard, Suite 2850

15 Los Angeles, CA 90010

Telephone: (213) 639-3900

16 Facsimile: (213) 639-3911

Email: joaquin@nilc.org

17 Email: tumlin@nilc.org

Email: preciado@nilc.org

18

Mary Kenney*

19 Emily Creighton*

Melissa Crow*

20 AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200

21 Washington, D.C. 20005

Telephone: (202) 507-7512

22 Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org

23 Email: ecreighton@immcouncil.org

Email: mcrow@immcouncil.org

24

Attorneys for Plaintiffs

25

* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

26 ** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

27

28

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Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 3 of 41

1 I, ROBERT W. POWITZ, hereby declare:

2

I. INTRODUCTION

3

1. I have personal knowledge of the facts stated herein and, if called as a

4 witness, could and would competently testify thereto.

5

2. I am a practicing forensic sanitarian with almost 50 years of professional

6 experience in corrections. I hold a master’s degree in public health with a specialty in

7 institutional practice and a doctorate in environmental health, both from the University of

8 Minnesota.

9

3. I am registered as a sanitarian and certified food safety professional with

10 the National Environmental Health Association and licensed as a sanitarian in the State

11 of Connecticut.

12

4. I have served as an expert witness on correctional public health on behalf

13 of the U.S. Department of Justice, Civil Rights Division and the Federal Bureau of

14 Prisons, and in the following jurisdictions: First, Second, Third, Fourth, Sixth and

15 Eleventh Federal Circuit Courts of Appeals; the states of Alabama, California, Delaware,

16 District of Columbia, Florida, Georgia, Louisiana, Maryland, Massachusetts, Michigan,

17 New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Dakota and Vermont;

18 and the cities of Baltimore, Los Angeles, New Orleans, New York, Philadelphia and

19 Washington, DC. Correctional public health encompasses food service, sanitation

20 (including maintenance and hygiene), shelter (including space, lighting, ventilation,

21 living conditions, housekeeping, etc.), and safety (both general and fire safety) in prisons,

22 jails and other types of custodial institutions.

23

5. I am certified by National Sanitation Foundation (“NSF”) International and

24 the National Environmental Health Association as a food safety and Hazard Analysis

25 Critical Control Point (“HACCP”) instructor.

26

6. I have served on the editorial boards of and as a contributing author for

27 Food Safety Magazine and Corrections Managers’ Report. I also authored a regular

28 column in American Jails between 2004 and 2007. I have regularly appearing columns

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1 that focus on topical issues in public and environmental health and safety specific to

2 corrections.

3

7. I am a member of the National Environmental Health Association and

4 American Jail Association.

5

8. I have authored various articles that were published in American Jails and

6 Correction Managers’ Report.

7

9. A true and correct copy of my current resume is attached as Attachment A

8 to this declaration.

9

II. ASSIGNMENT

10

10. I have been asked by Plaintiffs’ counsel to offer my opinions regarding the

11 conditions of confinement in Tucson Sector Border Patrol Station Hold Rooms

12 (hereafter, “hold rooms”).

13

III. MATERIALS RELIED UPON

14

11. I personally inspected all four of the Border Patrol Stations made available

15 to Plaintiffs for inspection—Tucson, Casa Grande, Douglas and Nogales—on September

16 8 through September 11, 2015. At each station, I was accompanied by corrections expert

17 Eldon Vail and a photographer. I was also accompanied at each station by two of

18 Plaintiffs’ attorneys: Colette Mayer and Nora Preciado at Tucson; Louise Stoupe and

19 Nora Preciado at Casa Grande; and Kevin Coles and James Lyall at Douglas, Nogales,

20 and an abbreviated second visit to Tucson.

21

12. I have read the declaration of Eldon Vail and believe his account of our

22 inspections and descriptions of the various facilities to be accurate.

23

13. I have read the declaration of Joseph Gaston and have based my opinions

24 on reports he prepared at the request of Plaintiffs’ counsel, which analyze the “e3DM”

25 data produced by Defendants. I understand that the e3DM data purports to reflect certain

26 records logged by Defendants with respect to the detention of individuals at each of the

27 eight Border Patrol Stations within the Tucson Sector.

28

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1

14. I have been provided with all documents produced by Defendants in this

2 case.

3

15. I have reviewed the declarations of individuals who were detained in U.S.

4 Customs and Border Protection (“CBP”) facilities within the Tucson Sector of the U.S.

5 Border Patrol submitted in support of Plaintiffs’ Motion for Class Certification.

6

16. I have also reviewed screenshots from surveillance video produced by

7 Defendants and photographs taken during my Border Patrol station inspections.

8

17. I have been provided with certain declarations and other documents filed in

9 this case and in Flores v. Lynch, No. CV 85–4544–RJK–Px (C.D. Cal. filed July 11,

10 1985), that relate to the hold rooms.

11

IV. OBSERVATIONS AND OPINIONS

12

18. It is my opinion that the hold rooms operated by Defendants do not comply

13 with CBP’s own standards let alone the national standards for correctional facilities, with

14 respect to hygiene.

15

19. There are a number of relevant standards that I have referred to in order to

16 form my opinion in addition to the standards outlined by Eldon Vail in his declaration

17 (Vail Decl. ¶¶ 16-20).

18

20. These standards include the Performance-Based Standards for Adult Local

19 Detention Facilities issued by the American Correctional Association (“ALDF

20 Standards”) that describe mandatory standards for the hygienic operation of detention

21 facilities. A true and correct copy of excerpts from the ALDF Standards is attached to the

22 Appendix of Exhibits as Exhibit 195.

23

21. Similarly, the American Public Health Association issues Standards for

24 Health Services in Correctional Institutions.

25

22. In addition, the U.S. Department of Justice has issued ICE Detention

26 Standards that relate to sanitary issues, a true and correct copy of which is attached to the

27 Appendix of Exhibits hereto as Exhibit 200.

28

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1

A. The Hold Rooms Are Unsanitary

2

23. In my opinion, the hold rooms operated by CBP are not regularly and

3 professionally cleaned and sanitized. During my inspections, I observed and assessed

4 hold room cleanliness, including floors, walls, benches, drains, toilets, sinks, stalls, and

5 other fixtures. Almost all of these areas were badly soiled.

6

24. CBP’s own standards require all facilities or hold rooms to be regularly and

7 professional cleaned and sanitized. (Ex. 95, 4.7.)

8

25. In addition, National standards for correctional facilities require general

9 cleanliness and garbage removal. Both the Core Jail Standards for Housekeeping and the

10 ALDF Standards require that: “The facility is clean, in good repair.” (Ex. 199, 1-CORE-

11 1A-04 (Ref. 4-ALDF-1A-04) at 2; Ex. 195, 4-ALDF-1A-04 at 3.)

12

26. The ICE Detention Standards further state that:

13

Garbage and refuse shall be collected and removed from

common areas at least daily to maintain sanitary conditions

14

and to avoid creating health hazards.

15 (Ex. 200, Sec. 1.2.III.7.b at 25.)

16

B. Trash in Hold Rooms

17

27. Hold rooms often lacked waste bins. At Tucson Station, for example,

18 waste bins were kept outside the hold rooms in the processing area. (Ex. 59.)

19

28. Even more commonly, toilet stalls lacked waste receptacles for used toilet

20 paper or sanitary napkins or diapers. (Exs. 20; 21; 56.)

21

29. Surveillance videos produced by Defendants show that hold rooms

22 frequently accumulate excessive amounts of trash:

23

24

25

26

27

28

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1 (Exs. 189, 153, 156.)

2

30. Screenshots of surveillance video from Douglas station show a child

3 walking by trash scattered around the hold room, while his mother and a young toddler

4 lie beneath Mylar sheets heaped on the floor:

5

6

7

8

9

10

11

12 (Ex. 149.) Earlier, the mother can be seen changing her child’s diaper on top of the same 13 Mylar sheets: 14

15

16

17

18

19

20

21 (Ex. 148.)

22

31. Direct exposure to garbage contributes to the risk of disease and the

23 presence of vermin, as well as contributing to psychologically stressful conditions due to

24 foul odors and eating and sleeping amidst filth. Also the inability to properly dispose of

25 sanitary napkins and diapers significantly increases the risk of transmission of blood

26 borne diseases and/or gastrointestinal infections. Any blood spill, including menstrual

27 blood, can pose a risk of transmission of disease.

28

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1

C. Filth on Floors and Walls

2

32. The hold room floors are made of concrete, and each cell has at least one

3 floor drain. During my inspection, I observed that the floors in many of the hold rooms

4 were filthy, stained, and in some instances moldy:

5

6

7

8

9

10

11

12

13 (Ex. 64; see also Exs. 9, 30, 34, 45, 53, 58, 63, 66, 69.)

14

33. Detainees are frequently seen lying down and sleeping on these same

15 floors:

16

17

18

19

20

21

22

23

24 (Ex. 178.)

25

34. The floor drains were often packed with filth and trash. (Exs. 16, 24, 36.)

26 The perimeter walls were often filthy: Some were coated in what appeared to be human

27 excrement:

28

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1

35. The perimeter walls were often filthy: Some were coated in what appeared

2 to be human excrement:

3

4

5

6

7

8

9

10 (Ex.14; see also Exs. 22, 37, 46, 65, 71, 72, 73.)
11 36. Detainees are frequently seen sitting or lying against these same walls:
12

13

14

15

16

17

18

19

20 (Ex. 185; see also Exs. 173, 174, 177, 178, 180, 151, 152.)

21

37. Such filth, including bodily fluids, on the floor and the walls significantly

22 increases the likelihood that infectious diseases common to prisons and other custodial

23 institutions—including E. Coli, Hepatitis A, and MRSA (an antibiotic-resistant staph

24 infection)—will be transmitted among detainees.

25 D. Filth on Toilets and Sinks

26

38. I observed numerous instances of stained and streaked toilets and sinks at

27 each station I inspected. The directional spigots that are designed for use as water

28

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1 fountains were not maintained in a clean and sanitary condition. (Exs. 11, 12, 13, 17, 43,

2 44, 57, 67, 76, 77.)

3

39. Unclean toilets and drinking fountains, especially when mounted so close

4 to one another, significantly increase the risk that drinking fountains will be infected with

5 fecal matter and other human waste—not to mention bodily fluids like saliva—increasing

6 the risk that disease will spread among detainees.

7

40. The absence of clean hold rooms, toilets, sinks and drinking fountains

8 serves no legitimate purpose and creates an unjustified risk to detainees.

9

41. The unclean environment significantly contributes to the risk of cross

10 contamination and contracting a dermatological disease or condition, gastrointestinal

11 infection, as well as contributes to psychologically stressful conditions.

12

E. The Sleeping Areas and Sleeping Mats Are Unsanitary

13

42. In addition to the general lack of cleanliness of the hold rooms, in my

14 opinion the sleeping areas of the hold rooms are unsanitary.

15

43. National standards for correctional facilities also require clean bedding and

16 linens. The Core Jail Standards require that:

17

Inmates are issued suitable, clean bedding and linens.

There is provision for linen exchange, including towels, at

18

least weekly.”

19 (Ex. 199, 1-CORE-4B-01 (Ref. 4-ALDF-4B-02) at 25.)

20

44. The DOJ NIC Jail Standards further state that:

21

Inmates must be provided with clean clothes and bedding.

Clothing, towels, and bedding must be exchanged, laundered,

22

and inspected on a regular basis. Failing to do so will result in

an unhygienic facility for both the inmates and the staff. 23

24 (Ex. 196 at 4.)

25

45. The United Nations Standard Minimum Rules for the Treatment of

26 Prisoners state:

27

Every prisoner shall, in accordance with local or national

standards, be provided with a separate bed, and with separate

28

and sufficient bedding which shall be clean when issued, kept

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1

in good order and changed often enough to ensure its

cleanliness.

2

(Ex. 198, at 3, ¶ 19.)

3

4

46. Pervasive hygiene failures concerns at these facilities is exacerbated by the

5 fact that, as surveillance video shows, detainees are often held overnight in overcrowded 6 hold rooms without beds or mattresses. This forces them to sleep on the floors near and 7 sometimes in toilet stalls and other unsanitary areas:

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22 (Ex. 186; see also Exs. 146, 178.)

23

47. Although most detainees sleep on the floor, a very small percentage are

24 provided mats to sleep on. (Declaration of Joseph Gaston (“(J. Gaston Decl.”), ¶ 25.)

25 However all of the mats that we saw during the inspection were dirty:

26

27

28

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1

2

3

4

5

6

7

8

9

10 (Ex. 25; see also Exs. 28, 29.) Mats in hold rooms were usually placed directly on the

11 concrete floors which, as described above, were also filthy and occasionally moldy. (Exs.

12 15, 25.)

13

48. Detainees are not provided with beds and clean bedding, even when held

14 for periods exceeding 24 hours. Instead, the vast majority are forced to sleep on the dirty

15 floor, while a small number—often children—are given dirty mats. Under either

16 circumstance, these conditions are certain to interfere with a detainee’s ability to sleep.

17

49. The detainees’ inability to sleep is compounded by the continuous

18 illumination in multiple-occupancy hold rooms that interrupts circadian rhythms which

19 results in injury and depression and compromises alertness, plasma melatonin, body

20 temperature, and sleep/wakefulness of the detainees.

21

50. The lack of clean beds and clean bedding serves no legitimate purpose and

22 represents a potential safety hazard to the detainee, compromises health maintenance and

23 promotes the acquisition of illness or infection. At a minimum, the unsanitary and

24 inappropriately lit sleeping arrangements impede the detainees’ ability to sleep. Sleep

25 deprivation can result in inordinate stress and ill health – making detainees more

26 susceptible to disease.

27

28

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1

F. Unclean Hold Rooms Have Insufficient Numbers of Toilets Based

on the Stated Capacity

2

3

51. The current rated capacities of the multiple-occupancy cells exceeds the

4 toilet and washbasin to detainee ratios for both females and males. The ALDF Standard

5 4-4137 requires one toilet for every twelve male prisoners and one toilet for every eight

6 female prisoners. (Ex. 195, 4-ALDF-2C-08 (Ref. 3-ALDF-2C-08, 2C-09) at 48.) In

7 most cases, the number of toilets in a hold room was inadequate for the contemplated

8 occupancy numbers posted or produced by Defendants.

9

52. Some especially large hold rooms at Nogales Station with purported

10 capacities of up to 88 individuals per hold room had only one functioning toilet. The

11 only other toilet in that cell would not flush.

12

53. In my opinion, detainees should not be held in hold rooms where the

13 capacity exceeds one functioning toilet for every twelve male detainees and one toilet for

14 every eight female detainees. Exceeding accepted standards for the ratio of toilets to

15 detainees serves no legitimate purpose and creates an unjustified risk to detainees.

16

54. Aside from leading to an increased likelihood of accumulated filth and

17 malfunctioning toilets, exceeding the recommended ratios could also result in detainees

18 suffering adverse health effects—e.g., voluntary urinary retention and concomitant

19 urinary tract infections, as well as more serious medical conditions if toilets are not

20 available when needed.

21

G. Poor Group and Individual Hygiene in the Hold Rooms

22

55. During my inspections, I observed several issues with respect to the

23 hygiene of group and individual detainees.

24

56. During my inspection of Casa Grande Station, there was no soap available

25 anywhere for detainees to clean themselves. At other stations, I observed soap dispensers

26 mounted on the walls of many hold rooms, but these were typically broken or empty.

27

57. Although we were shown shower facilities at Tucson, Douglas and Nogales

28 stations (see Ex.47), we were also told that detainees were generally not provided access

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1 to showers. At Nogales Station, we were told that detainees were never provided access

2 unless there were concerns about contamination or infectious diseases (scabies was

3 mentioned specifically). Casa Grande had no shower facilities whatsoever.

4

58. During our inspections, we found various personal hygiene items stored at

5 each facility, including towels, washcloths and toothbrushes (Exs. 39, 40, 41), but we

6 found no evidence that any of these supplies were made available to detainees, nor did

7 our inspection of Defendants’ refuse reveal that used (or unused) personal hygiene items

8 had been discarded by detainees.

9

59. Declarations by former detainees confirm that they were never given

10 personal hygiene items. (See, e.g., ECF No. 2-3, Ex. 38 ¶ 21 (no toothbrushes,

11 toothpaste, soap, or towels); id., Ex. 41 ¶ 12 (same); id., Ex. 43 ¶ 16 (same).)

12

60. Defendants’ e3DM data demonstrated that detainees are routinely denied

13 dental care, feminine hygiene, and other personal hygiene items. (J. Gaston Decl. ¶ 32.)

14

61. During our inspections, we were shown laundry facilities at the Tucson

15 Station. We were told that neither Nogales nor Casa Grande nor Douglas station had

16 laundry facilities.

17

62. Detainees have no opportunity to change out of their soiled clothing or to

18 have their soiled clothing laundered.

19

63. I also inspected the sinks and toilets at all four stations. Most hold rooms

20 had between one or two metal toilet/lavatory fixtures behind a low brick privacy wall or

21 stall. (Exs. 10, 23.) A few of the larger hold rooms in Tucson station had three or four of

22 these fixtures in toilet stalls. (Ex. 55.) Occasionally the sink and toilet were separate

23 units positioned close together (Ex. 44.)

24

64. In many instances, detainees housed in the multiple-occupancy hold rooms

25 had little to no opportunity to wash their hands. Many of the combination toilet/lavatory

26 fixtures did not have metered faucets that provided an uninterrupted water flow of at least

27 10 seconds, which is the minimal flow required for minimally adequate hand washing.

28

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1

65. Only one hold room—out of the dozens we inspected—had hot water

2 available.

3

66. The Core Jail Standards require showers and hygiene products to be

4 available:

5

Inmates, including those in medical housing units or

infirmaries, have access to showers, toilets, and washbasins

6

with temperature controlled hot and cold running water

twenty-four hours per day. Inmates are able to use toilet

7

facilities without staff assistance when the year confined in

their cells/sleeping areas. Water for showers is

8

thermostatically controlled to temperatures ranging from 100

degrees to 120 Fahrenheit. 9

10 (Ex. 199, 1-CORE-4B-04 (Ref. 4-ALDF-4B-08, 4B-09, 4C-10) at 26.)

11

Articles and services necessary for maintaining proper

personal hygiene are available to all inmates including items

12

specifically needed for females.

13 (Ex. 199, 1-CORE-4B-03 (Ref. 4-ALDF-4B-06) at 26.)

14

67. The DOJ NIC Jail Standards further state that clean clothes must be

15 provided:

16

Inmates must be provided with clean clothes and bedding.

Clothing, towels, and bedding must be exchanged, laundered,

17

and inspected on a regular basis. Failing to do so will result in

an unhygienic facility for both the inmates and the staff. 18

19 (Ex. 196 at 4.)

20

68. The ALDF Standards state that:

21

Sufficient bathing facilities are provided in the medical

housing unit or infirmary area to allow inmates to bathe daily.

22

At least one bathing facility is configured and equipped to

accommodate inmates who have physical impairments or who

23

need assistance to bathe. Water for bathing is thermostatically

controlled to temperatures ranging from 100 degrees

24

Fahrenheit to 120 degrees Fahrenheit.

25 (Ex. 195, 4-ALDF-4C-11 (Ref. New) at 54.)

26

69. The ICE Detention Standards further state that:

27

At no cost to the detainee, all new detainees shall be issued

clean, laundered, indoor/outdoor temperature-appropriate, size

28

appropriate, presentable clothing during intake. . . . Each

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detainee shall receive, at minimum, the following items: 1)

one bar of bath soap, or equivalent; 2) one comb; 3) one tube

2

of toothpaste; 4) one toothbrush; 5) one bottle of shampoo, or

equivalent; and 6) one container of skin lotion.

3

4 (Ex. 200, Secs. 4.5.IV.B & D at 310-11.)

5

70. CBP’s failure to provide basic products to allow detainees to clean

6 themselves creates an unhygienic facility for both detainees and CBP agents.

7 Defendants’ failure to maintain basic levels of group and individual hygiene in these

8 facilities serves no legitimate interest, and unjustifiably increases the risk of harm to

9 detainees.

10

71. The lack of personal hygiene significantly contributes to a lack of well-

11 being and poor health. For example, soiled clothing has been implicated in the spread of

12 MRSA—a disease common in communal institutions—as well as other infectious

13 diseases and skin ailments. Soiled garments may also compromise thermal comfort.

14

H. Unhygienic Provision of Food and Water

15

72. CBP agents that distribute food to detainees pay no regard to personal

16 hygiene.

17

73. During our inspections, we were only permitted to observe one instance of

18 food being delivered to detainees. This occurred at Nogales Station. We did not observe

19 any hand washing or use of disposable gloves prior to and during the distribution of food.

20

74. We were not able observe how much time passed between food being

21 “prepared,” included heating of the microwave burritos which form the bulk of detainees’

22 diet while in custody, and delivery to detainees.

23

75. At Tucson and Nogales stations, we observed 5-gallon “Igloo” water

24 coolers in many of the hold rooms, which were used to provide detainees with access to

25 drinking water. But there were no facilities—no sinks, kitchens, or anything else—in

26 any station we inspected where these water coolers could routinely be cleaned and

27 sanitized. I have also seen video surveillance footage showing detainees drinking from

28 the same water jug because cups have not been provided.

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76. The ICE Detention Standards require that:

2

Detainees, staff and others shall be protected from injury and

illness by adequate food service training and the application of

3

sound safety and sanitation practices in all aspects of food

service and dining room operations.

4

5 (Ex. 200, Sec. 4.1.II.3 at 241)

6

77. The ICE Detention Standards define “Sanitation” as:

7

The creation and maintenance of hygienic conditions; in the

context of food, involves handling, preparing, and storing

8

items in a clean environment, eliminating sources of

contamination. 9

10 (Ex. 200, Sec. 7.5 at 461.)

11

78. In my opinion, food and water is not handled or delivered to detainees in an

12 appropriately hygienic or sanitary way. This places both CBP agents and detainees at

13 risk of the spread of disease, particularly gastrointestinal illnesses.

14

79. As noted above, we were not able to observe how much time passed

15 between the preparation of food and its delivery. If foods are held outside of a “safe

16 temperature” range (hot food over 140° F when served and the cold foods colder than

17 45°F), pathogenic organisms will reproduce, resulting in a dose significant to cause

18 infection. Additionally, delay between food preparation and delivery gives pathogenic

19 bacteria the opportunity to multiply to a number great enough to overwhelm the body's

20 natural defenses and cause disease.

21

80. Failure to clean and sanitize the water coolers or jugs and to provide clean,

22 individual drinking containers greatly elevates the risk of spreading water-borne diseases

23 as well as communicable diseases.

24

81. The absence of a hygienic food and water distribution process serves no

25 legitimate purpose and creates an unjustified risk to detainees.

26

27

28

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1

I. Lack Of Regular Maintenance Program and Policies

2

82. I understand that Defendants were ordered to produce current detainee

3 policies and procedures. I saw no policies or procedures regarding the routine and

4 adequate maintenance of hold rooms in these facilities.

5

83. Defendants appear to complete daily Processing Inspection Forms for each

6 of its stations. For at least the Casa Grande and Nogales stations, these forms appear to

7 be filled out inconsistently and, in the case of Case Grande, occasionally not completed

8 at all. (Ex. 104 at USA000706-708, USA000718-719, USA000722-724, USA000728-

9 749; Ex. 107 at USA001021, USA001029; Ex. 112 at USA001570-1571.)

10

84. According to CBP’s own logs, sinks and toilets at Tucson Station

11 frequently malfunction and often do not work for weeks at a time. (Ex. 114 at

12 USA001758-1776; Ex.115 at USA001872-1898 (sinks); Ex. 114 at USA001758-1776,

13 USA001843-1854; Ex. 115 at USA001873-1902; Ex. 116 at USA001968-1987 (toilets).)

14

85. Likewise for Casa Grande Station (Ex. 104 at USA000764-777 (drinking

15 fountains and toilets); Ex. 104 at USA000780-785, Ex. 105 at USA000862-866; Ex. 106

16 at USA000972-974 (toilets)), Douglas Station (Ex. 109 at USA001201, 1228, 1262-

17 1264; Ex. 110 at USA001281; Ex. 111 at USA001504-1555 (toilets)), and Nogales

18 Station (Ex. 112 at USA001570-1571, 1574-1597, 1601-1603-1606, 1608, 1610-1619,

19 1621, 1641-1657, 1659-1660, 1668; Ex. 113 at USA001671-1672, 1674, 1683-1685,

20 1688-1694, 1729, 1731-1733, 1735, 1750 (drinking fountains)).

21

86. Former detainees’ declarations also show that toilets and sinks were

22 frequently malfunctioning. (See, e.g., ECF No. 2-1, Ex. 16 ¶ 12 (broken toilet); ECF No.

23 2-2, Ex. 34 ¶ 11 (same); id., Ex. 36 ¶ 19 (same); ECF No. 2-3, Ex. 43 ¶ 16 (broken sink).)

24

87. Given the fact that some problems identified by CBP agents remain unfixed

25 for weeks, I believe Defendants do not have a regular or appropriate maintenance

26 program.

27

88. We were shown janitor supply closets at each station and found various

28 haphazard collections of brooms, dust pans, wet mops, buckets, and a variety of

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1 household chemical cleaners. (Ex. 6; Ex. 38.) There was no indication that different

2 brooms, wet mops, and buckets were used to clean different areas. As a result, the same

3 mop or broom might be used to clean toilet areas and food storage/preparation areas

4 alike. Cleaning equipment such as mops heads, mop pads, mop handles, and wipe cloths

5 should not be used interchangeably for cleaning toilet and food storage/handling areas.

6 They should be separated in storage and recognizable by color. Defendants’ failure to

7 sequester and separate cleaning utensils and supplies violates universally recognized

8 sanitary practices.

9

89. Unsanitary conditions favor the growth and survival of disease-causing

10 microorganisms. Clean environments—and, in particular, clean common-touch points—

11 help prevent illness spread by indirect contact. Crowding increases the chance that

12 contagion is deposited on common-touch objects such as seats, barrier partitions seats,

13 toilet flush handles, lavatory faucets, door push-plates, water coolers’ recessed spigots,

14 and so forth. There was no evidence in any facility that a concerted effort was made to

15 frequently clean and sanitize the common-touch points in detainee areas. Unsanitary

16 conditions increase the risk that disease will be spread by indirect contact.

17

90. It is my professional opinion that, in light of the duration and manner in

18 which individuals are detained, the hold rooms are not adequately cleaned or maintained.

19 CBP’s failure to implement a regular system to ensure the cleanliness of these hold

20 rooms serves no legitimate purpose and creates an unjustifiable risk to detainees.

21

J. Inadequate Ventilation and Temperature

22

91. Temperature and ventilation are interrelated. In my opinion, the hold

23 rooms do not have adequate ventilation and the detainees are not held in a room that has

24 an adequate temperature because detainees’ outer clothing is removed upon detention.

25

92. The detainees surrender their outer garments when admitted to the

26 facilities. During our inspection, CBP agents informed us that all detainees’ outer layers

27 of clothing were confiscated, and in all but a few instances, detainees were not given

28 replacement clothing.

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93. The amount of thermal insulation worn by a person has a substantial impact

2 on thermal comfort, because it influences heat loss and, consequently, thermal balance.

3 Layers of insulating clothing prevent heat loss and can either help keep a person warm or

4 lead to overheating.

5

94. Surveillance video confirms that individuals are ordinarily detained

6 wearing only t-shirts or other short-sleeved shirts. (Exs. 126, 129, 165.)

7

95. Surveillance video also shows detainees huddled together under Mylar

8 sheets, even during the summer months. (Exs. 187, 188; Ex. 191.)

9

96. Temperature logs from Douglas Station in September (Ex. 111 at

10 USA001427-1569) show that temperature readings were in the low to mid-60s on a

11 regular basis, even reaching as low as 58.8 degrees Fahrenheit (Ex. 111 at USA001461).

12 No hold room temperatures were produced from winter, spring, or late fall months.

13

97. At Nogales Station, we were shown several thermostats, which controlled

14 temperatures in the different areas. (Exs. 48, 49.) Defendants later confirmed that two

15 units condition the processing area, while three other units are specifically for the hold

16 rooms, so that temperatures can be adjusted in each area as desired.

17

98. We were told during the inspections that temperatures for the other three

18 stations were controlled remotely from a different facility located in Tucson. This was

19 later confirmed in writing. Attached to the Appendix of Exhibits as Exhibit 100 is a true

20 and correct copy of a document produced by Defendants on or about October 20, 2015

21 and Bates labeled USA000675-676, which purports to be a signed declaration from

22 George Allen, Assistant Patrol Agent for the United States Border Patrol, Tucson Sector

23 describing Border Patrol’s access to the thermostat and temperature control at Tucson,

24 Nogales, Douglas and Casa Grande stations.

25

99. I also understand that Defendants confirmed that the air conditioning

26 systems at Tucson and Douglas Stations are broken down into zones so that different

27 temperatures can be set in different zones, including the processing area and detainee

28 hold rooms. At Casa Grande Station, each holding room has a sensor connected to a

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1 Variable Air Box which opens and closes proportionately to control the room

2 temperature and fan speed.

3

100. Former detainee declarations overwhelmingly complain of being subjected

4 to cold temperatures. There are even accounts of Border Patrol agents using cold

5 temperatures to punish inmates. (See, e.g., ECF No. 2-1, Ex. 4 ¶ 6; id., Ex. 6 ¶ 9.) CBP’s

6 ability to alter temperatures in different zones is consistent with these claims.

7

101. During our inspections, I also observed the ventilation systems relative to

8 the air movement from the intakes and exhausts within all of the holding rooms

9 inspected. I also measured the air quality of each holding room inspected; specifically

10 the WBGT (Wet Bulb Globe Temperature that measures evaporative cooling/heat stress),

11 TA (Ambient Air Temperature), RH% (Relative Humidity) and TG (Black Globe

12 Temperature that measures radiant heat) where it was deemed applicable. I noted that air

13 flow in the hold rooms was variable within a given facility and inconsistent throughout

14 the system. The findings ranged from no detection of air movement to a distinct

15 noticeable draft that was felt throughout the room; where the air velocity was greater than

16 25 lfpm (linear feet per minute). The WBGT combines the effects of radiation,

17 humidity, temperature and wind speed on the perception of temperature. In virtually all

18 rooms, the WBGT was below 71° F; with measurement as low as 66.3°F and median

19 range between 67 to 69°F. To most individuals, and particularly those detainees who

20 were sedentary, this results in discomfort and chill. For the most part, the ambient air

21 temperature and slightly lower black globe temperature were in the mid-70 degree range.

22 However, the concrete benches and floors served as a heat-sink, thereby exacerbating the

23 discomfort level of the detainees. The heat-reflective, emergency Mylar blankets issued

24 to the detainees, do not effectively serve as a barrier to the radiant cooling of the

25 concrete.

26

102. The ventilation system operated at the Nogales Station did not maintain an

27 adequate temperature level for sedentary detainees. I noted that the ventilation system

28 shuts down when the ambient pre-set air temperature was reached, and reactivates when

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1 the temperature rose. The static air temperature throughout the facility was 73°F (± ~

2 1°F). The range of the WBGT was between 62.4° to 66.5°F; making each hold room

3 unduly cool, and particularly when the intake blowers were activated resulting in a

4 perceptible draft.

5

103. I found that the mechanical ventilation systems in all facilities cannot be

6 adjusted to meet the health and comfort needs of the detainees. As such, there is a

7 constant rate of air movement as well as temperature maintenance that is independent of

8 the number of detainees housed in the multiple-occupancy cells.

9

104. Even CBP’s own standards require hold rooms to be maintained as a

10 “temperature within a reasonable and comfortable range.” The standards also state that

11 “[u]nder no circumstances will officers/agents use temperature controls in a punitive

12 manner.” (Ex. 95, 4.6.)

13

105. One of the most consistent complaints of detainees, however, is that the

14 hold rooms are too cold, hence the nickname in Spanish for the hold rooms is “las

15 hieleras” or the freezers. (ECF No. 2-1, Ex. 11¶ 13.)

16

106. In general, standards require hold rooms to be kept at a comfortable

17 temperature. The Core Jail Standards also require ventilation to be adequate and for

18 temperature to be maintained at an comfortable level:

19

A ventilation system supplies at least 15 cubic feet per minute

of circulated air per occupant, with a minimum of five cubic

20

feet per minute of outside air. Toilet rooms and cells with

toilets have no less than four air changes per hour unless state

21

or local codes require a different number of air changes. Air

quantities are documented by a qualified independent source

22

and are checked not less than once per accreditation cycle.

Temperatures are mechanically raised or lowered to

23

acceptable comfort levels.

24 (Ex. 199, 1-CORE-1A-10 (Ref. 4-ALDF-1A-19, 1A-20) at 4; see also Ex.195, 4-ALDF-

25 1A-19, at 7; Ex. 200, Sec. 2.6.V.A.3 at 27.)

26

107. Similarly, standards generally require adequate clothing to be provided.

27 For example, the Core Jail Standards Require:

28

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1

Inmates are issued clothing that is properly fitted and suitable

for the climate. There are provisions for inmates to exchange

2

clothing at least twice weekly.

3 (Ex. 199, 1-CORE-4B-02 (Ref. 4-ALDF-4B-03) at 25.)

4

108. The DOJ NIC Jail Standards also require adequate clothing to be provided:

5

Inmates must be provided with clean clothes and bedding.

Clothing, towels, and bedding must be exchanged, laundered,

6

and inspected on a regular basis. Failing to do so will result in

an unhygienic facility for both the inmates and the staff.

7

8 (Ex. 196 at 4; see also Ex. 200, Sec. 2.6.V.D.4 at 57.)

9

109. Defendants’ practice of confiscating detainee clothing, failing to replace it,

10 and maintaining hold rooms at temperatures far below comfort levels serves no

11 legitimate purpose. It violates nationally recognized standards including CBP’s own

12 standards and creates an unjustifiable risk of harm to detainees.

13

110. There are four effects resulting from human occupancy of poorly ventilated

14 areas and rooms:

15

A. The oxygen content is reduced;

16

B. The amount of carbon dioxide is increased;

17

C. The relative amount of organic matter shed and odors spread from

18

occupants’ skin, clothing, and mouths increases; and,

19

D. The humidity is increased by the moisture in the breath and

20

evaporation from the skin.

21

111. Poor indoor air quality also exacerbates chronic respiratory health

22 conditions such as asthma.

23

112. Similarly, when the adaptive comfort temperature levels of the detainees

24 are exceeded, there is a potential for behavioral and psychological changes. Continuous

25 exposure to low WBGT temperatures also creates a health risk as most bodily function, 26 such as circulation, appetite, and brain activity, are impaired when a person is cold for 27 long periods of time.

28

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1

K. Public Health Risks

2

113. The space afforded to inmates in the multiple-occupancy hold rooms—and

3 mandated by Defendants policy (Exhibit 81)—is less than the space recommended for

4 inmates in all acceptable correctional standards. In fact, the space afforded inmates in

5 these hold rooms is less than the space allowed for laboratory animals of similar size and

6 body mass. (See Guide for the Care and Use of Laboratory Animals, Eighth Edition,

7 National Research Council National Academies Press, Washington, DC. 2011, Table 3.6,

8 http://grants.nih.gov/grants/olaw/Guide-for-the-Care-and-Use-of-Laboratory-

9 Animals.pdf.) This lack of space has direct implications on health, safety, and wellbeing.

10

114. Multiple cell occupancies pose the greatest risk of communicable disease

11 spread. This is because the full health status of newly admitted detainees is unknown.

12 These individuals can be in the prodromal stages of illness. While not manifesting

13 symptoms of disease, they can spread contagion to others in close proximity through

14 direct and indirect contact, particularly by contact with contaminated fomites in the

15 detainees’ immediate environment, and/or via airborne contagion.

16

115. To the extent detainees are held in hold rooms for 12 hours or more, their

17 exposure experience is significantly increased through prolonged close contact with other

18 detainees. This exposure experience becomes the confounding variable and a significant

19 factor in the spread of communicable diseases amongst an institutionalized population.

20 Since space is severely abridged in multiple occupancy rooms, the risk factors for

21 institutionally acquired illnesses that are associated with crowding become more

22 significant. The space restriction also increases the risk of unintentional injury because

23 of limited free movement by detainees confined therein.

24

116. The seating areas in most multiple-occupancy cells are insufficient to

25 accommodate the number of detainees at rated occupancy capacity. This may result in

26 back and body pain, muscular-skeletal injuries, emotional stress and breathing problems,

27 particularly if detainees are forced to use the floor for seating. The use of the floor also

28 limits the availability of unencumbered space and movement.

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1

117. The overcrowding of hold rooms serves no legitimate purpose and creates

2 an unjustified risk to detainees.

3

V. CONCLUSION

4

118. Based on my experience, inspections, and review of documents and

5 surveillance footage, it is my opinion that the unclean, unhygienic, and unduly cold

6 conditions in which people are held at these stations serves no legitimate purpose and

7 creates an unjustifiable risk of harm to detainees.

8

119. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the

9 foregoing is true and correct.

10

11

Executed this

ofDecember, 2015.

12 13

14

15 16

17

18

19 20

21 22

23 24

25 26

27

28

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Attachment A

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 27 of 41

ROBERT W. POWITZ

April 2015

P.O. Box 502 8 Pheasant Hill Lane Old Saybrook, Connecticut 06475-0502

Telephone: home (860) 388-0827 work (860) 388-0893 mobile (860) 395-9214 E-mail: Powitz@sanitarian.com / rpowitz@yahoo.com Web: http://www.sanitarian.com

CURRICULUM VITAE

PERSONAL DATA

Born: Bilingual: Married:

August 29, 1942, New York City, NY English / German Alexandra Eva Fenczyn-Kip

EDUCATION

Ph.D. Environmental Health, 1978. University of Minnesota, Minneapolis, MN Supporting Minors: Epidemiology and Environmental Microbiology Thesis: Some Administrative and Microbiological Considerations in the Maintenance of the Sterile Integrity of Prepackaged, Disposable Items for use in Health Care Facilities.

M.P.H. Environmental Health, 1974. University of Minnesota, Minneapolis, MN Major: Institutional Environmental Health Supporting Minors: Industrial Hygiene; Epidemiology and Public Health Administration

B.S.A. Agriculture, 1964.

University of Georgia, Athens, GA

Major: Plant Pathology (Nematology); Minor: Agronomy

A.A.S. AgriculturalProduction, 1962. State University of New York, Cobleskill, NY Major: Agronomy; Minor: Animal Husbandry (Dairy)

Diploma - Wildlife, Forestry and Fishery Conservation, 1967, North American School of Conservation, Newport Beach, CA

Regents Diploma (Science), 1960,

Stuyvesant High School, New York, NY

PROFESSIONAL EXPERIENCE

1994 - present

R.W.POWITZ & ASSOCIATES, P.C.

Old Saybrook, Connecticut

PRINCIPAL ASSOCIATE: FORENSIC SANITARIAN

Provide consultation and expert witness services in environmental health, safety and

environmental protection to attorneys, governmental agencies, institutions and private industry.

Primary work emphasis: Litigation support with public health issues.

1

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 28 of 41

1992 – 1994

UNITED STATES DEPARTMENT OF AGRICULTURE

Agricultural Research Service, Plum Island Animal Disease Center

Greenport, New York

DIRECTOR: BIOLOGICAL SAFETY AND ENVIRONMENT, and, BIOSAFETY OFFICER

Established biological safety, environmental health, safety and environmental conservation policy

and provided contractual oversight of all activities relating to these policies. Directed biological,

chemical, environmental protection and radiological safety programs.

1980 - 1992

WAYNE STATE UNIVERSITY

Office of Environmental Health and Safety

Detroit, Michigan

DIRECTOR & BIOSAFETY OFFICER

Established and directed research support service unit with nine professional employees and a

support budget in excess of $ 250,000.00. Served as adjunct professor in the College of

Engineering, Pharmacy and Allied Health and Biological Sciences.

1979 - 1981

SAMARITAN HEALTH CENTER

St. Joseph Mercy Hospital Unit

Detroit, Michigan

EPIDEMIOLOGIST (1980 - 1981)

INFECTION CONTROL COORDINATOR (1979 - 1980)

Directed epidemiological and infection control activities in a 450 bed acute care community

hospital.

1979 -

HEALTH CARE RISK MANAGEMENT, INC.

Ann Arbor, Michigan and Rennselaer, New York

VICE PRESIDENT, and, DIRECTOR OF OPERATIONS

Managed the technical operations of a consulting firm. Served as environmental health and safety

expert.

1978 -

NATIONAL ENVIRONMENTAL HEALTH ASSOCIATION

Denver, Colorado

POST DOCTORAL RESEARCH ASSOCIATE

Developed performance and knowledge criteria document for the environmental health sanitarian

profession.

1975 - 1978

UNIVERSITY OF MINNESOTA

School of Public Health

Minneapolis, Minnesota

GRADUATE RESEARCH ASSISTANT, and, DOCTORAL CANDIDATE

Conducted thesis research on passive contamination of sterile medical supplies.

1974 - 1975

RINGWOOD HEALTH DEPARTMENT

Ringwood, New Jersey

HEALTH OFFICER

Established and directed a full service municipal health department.

1966 - 1974

STATE OF NEW JERSEY

Department of Health, Metropolitan Health District, Newark, NJ

Department of Institutions and Agencies, Trenton, NJ

SENIOR SANITARIAN:

Department of Institutions & Agencies (1969- 1974)

SANITARIAN:

Department of Health (1967- 1969)

INDUSTRIAL HYGIENIST:

Department of Health, Air Pollution Control (1966- 1967)

2

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 29 of 41

Provided on-site environmental health and safety services for the State agency. Conducted law and health regulation enforcement activities, and, served as resource consultant to local health agencies, departments and boards.

OTHER PROFESSIONAL ACTIVITIES

2003 – present 2003 – 2014 2003 – 2005 2000 – 2003
2000 – 2002 1998 – 2005 1996 – present
1992 - present 1990 - 1992 1981 - 1988 1978 - 1980

Health Director: Towns of Franklin and Lebanon, CT Health Director: Town of Salem, CT Health Director: Town of Sprague, CT Special Consultant to the Commissioner, Philadelphia Department of Corrections Associate: Risk Associates, LLC, Old Saybrook, CT Health Director: Town of Westbrook, CT Member, Chairman, Asst. Chairman: Old Saybrook Water Pollution Control Authority Member/Manager: Terry Plum's, LLC, Old Saybrook, CT Biological Safety Officer: Henry Ford Hospital, Detroit, MI President: Biosafety Systems, Inc., Detroit, MI President: Burns Park Condominium Association, Ann Arbor, MI

CREDENTIALS

LICENSES

State of Connecticut: Registered Sanitarian, #543 State of Michigan: Registered Sanitarian, #733 (inactive)
Certified Pesticide Applicator, AG0023082 (expired) State of New Jersey: Health Officer, #A194 (inactive);
Sanitary Inspector, First Grade, #B-489 (inactive); Public Health Laboratory Technician, #Ie-258 (inactive); State of Ohio: Registered Sanitarian, #1870 (inactive)

CERTIFICATIONS

The American College of Forensic Examiners: Diplomate: Forensic Technology, #19025

State of Pennsylvania: Registered Sanitarian, #259I

State of California:

Registered Environmental Assessor I, #01983 (expired)

State of Connecticut: Notary Public, #102136

National Environmental Health Association: Registered Sanitarian, #70095;

Certified Specialist - Food Safety, #181

Registered Food Safety Trainer, #18

New York State Registry of Sanitarians: Registered Sanitarian, #00415 (inactive)

National Registry of Food Safety Professionals: Trainer #1429

National Recreation and Park Association: Certified Playground Inspector, #4502 (expired)

American Biological Safety Association: Registered Biological Safety Professional, #016 (retired)

Professional Certification Board: Certified Hazard Control Manager, #1398 (inactive)

Cert. Hazardous Materials Mgr.,#0506 (inactive)

Certified Healthcare Safety Professional, #0017 (inactive)

National Registry of Environmental Professionals:

Registered Environmental Laboratory Analyst, #837I (inactive)

Certified Environmental Auditor, #623 (inactive)

Registered Environmental Property Assessor, #1504 (inactive)

Environmental Assessment Association: Certified Environmental Inspector, CEI 9235 (expired)

Water Quality Association: Certified Water Specialist – V (retired)

3

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 30 of 41
HONORS
Diplomate Laureate: American Academy of Sanitarians, Certificate # 001 Diplomate: American Academy of Sanitarians, Certificate # 336 Davis Calvin Wagner Award, 1996, American Academy of Sanitarians Distinguished Service Award, 2004, American Academy of Sanitarians Harry Bliss Journal Technical Editor’s Award, 1999, National Environmental Health Association Harry R.H. Nicholas Award, 2006, New Jersey Environmental Health Association Honorable Order of Kentucky Colonels: 1987 President's Award, 1990, Academy of Certified Hazardous Materials Managers Phi Theta Kappa Walter F. Snyder Award: 2001, NSF & NEHA
PROFESSIONAL AFFILIATIONS
American Association of Sanitarians American Biological Safety Association (Emeritus) American Jail Association Cleaning Industry Research Institute Connecticut Environmental Health Association International Association for Food Protection International Executive Housekeepers Association National Environmental Health Association Water Quality Association (retired)
ORGANIZATIONAL ACTIVITIES
KaiScience Advisory Board: 2007 – 2010 Cleaning Industry Research Institute: 2006 – present, Institutional Review Board Conference for Food Protection
Vice Chairman – Plan Review Committee: 2004 Underwriter Laboratories, Inc.,
Consumer Advisory Council: 1990-present; Corporate Council: 1993; 2001-present. Member: Standards Joint Committees Academy of Certified Hazardous Materials Managers, Board of Directors: 1990-1991 Connecticut Chapter: Board of Directors: 1994 - 2004 CHMM-Michigan, President: 1988-1990; Member, Board of Directors:1988-1991. American Academy of Sanitarians, Inc. Chairman: 2001 – 2004; 2010 - 2012 Vice Chairman: 2000 – 2001; 2008 - 2010 Board of Directors: 1990 - present Chairman, Credentialing Committee: 1992 - 2012 Water Pollution Control Authority, Old Saybrook, CT, Member: 1995 – 2011 Chairman: 2004 – 2009; Vice Chairman: 2009 - 2011 Wayne County (Michigan): Commission, Hazardous Waste Facility Site Review Board: 1987 - 1988. State of Michigan: Agricultural Advisory Comm. - Occupational Health Standards Commission: 1985-1987 Institute of Hazardous Materials Management Member, Board of Examiners: 1985 - 1990 Institute of Environmental Sciences
4

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 31 of 41
Vice Chairman: Michigan Section, 1986 Wayne State University: 1980 - 1992
Chairman & Member, Institutional Biosafety Committee Chairman, Laboratory Safety Committee Member, Radiation Safety and Radioisotope Committee Member, Loss Control Committee Member (ex officio), Animal Care Committee I National Environmental Health Association: 1969 - present Chairman, Institutional Section: 1987 - 1991 Chairman, Correctional Facilities Section: 1992 Member, Scholarship Committee: 1998 – present Member, Credential Development Committee: 2006 National Safety Council: 1978 - 2004 Executive Committee Member, Health Care Section Executive Committee Member, Campus Safety Association Member, Environmental Health Committee, R & D Section National Sanitation Foundation International, 1978 – present Council of Public Health Consultants: 2001 – present;
Vice Chairman: 2007 – 2008 Chairman: 2008 - 2009 Member, Standards 42, 49, 53, 54, 55, 330 and 376 Joint Committees Joint Committee Chairman: Standards 14, 24, 49, 330 and 376 University of Minnesota, Member, Biohazard Advisory Committee: 1976 - 1977 Health Officers of Passaic County, Chairman, 1974 - 1975 New Jersey Environmental Health Association, 1967 - 1973 Corresponding Secretary and Treasurer; Chairman, Registration Committee
TEACHING EXPERIENCE
Wayne State University Adjunct Associate Professor, College of Engineering: 1986 - present CHE 551 Introduction to Hazardous Waste Management CHE 556 Transportation and Emergency Spill CHE 557 Introduction to Safety Assessment CHE 651 Public Issues of Hazardous Waste CHE 726 Waste Management Internship CHE 727 Hazardous Waste Laboratory Adjunct Assistant Professor, College of Pharmacy and Allied Health: 1982 - 1992 OEH 762 Control of Industrial Wastes Adjunct Assistant Professor, Department of Biological Sciences: 1980 - 1992 BIO 523 Environmental Microbiology Adjunct Assistant Professor, Division of Health and Physical Education: 1988 - 1991 HEA 232 Environmental Health Additional Activities: Assisted in the development of the Graduate Certificate in Hazardous Waste Management and Environmental Auditing; the Masters Degree in Hazardous Materials Management and the Degree in Environmental Hazards Management within the College of Engineering.
Ferris State University Adjunct Associate Professor, Allied Health Sciences, Environmental Health: 1981 - 1992 EHN 230 Epidemiology EHN 302 Communicable Disease Control EAH 320 Institutional Environmental Health
5

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 32 of 41

EAH 101 Environmental Health Practice EAH 315 Occupational Health Practice EAH 330 Industrial Hygiene EAH 400 Industrial Toxicology St. Clair College, Windsor, Ontario, Instructor, Division of Continuing Education: 1990 - 1992 OH 223 Fundamentals of Occupational Toxicology NSF International: 2000 - 2006 Food Safety in Retail Operations Plan Review for Retail Food Operations HACCP

CONTRACTS AND AWARDS

2007

Charm Science: Development of ATP Systems Use Instructions

2007 - present Kaivac Systems: CMI Consultant

2004

NSF International: Training and Course Development, $2,000 per month.

2003 – present Special Consultant to Bucks County Department of Corrections

2001

ASPH Project #S1404-20/20 (University of Oklahoma, Health Sciences Center),

Contributing author: Sanitarian’s Desk Reference; $11,100.

1988 - 1989 U.S. Department of Health and Human Services, Contract No. 240-88-0069

Evaluation of Hazardous Waste Education and Training, $180,000.

1984

Ultrasonix Research, Inc.

Development of Ultraviolet Light Water Purification Technology, $20,000.

1975 - 1978 U.S. Veterans Administration, Doctoral Research Contract, $56,000

PUBLICATION ACTIVITIES

2004 - 2007 Contributor: American Jails Magazine 2003 - present Contributor and Editorial Advisory Board: Food Safety Magazine 1995 - 2008 Contributing Editor: Corrections Managers' Report 1997 - 2003 Contributor, Journal of Environmental Health (NEHA) 1978 - present Reviewer, Journal of Environmental Health (NEHA) 1989 - 1992 Editor, ABSA Newsletter 1986 - 1987 Editor, Current Topics In Campus Health and Safety 1982 - 1987 Contributing Editor, Canon Communications:
Microcontamination; Pharmaceutical Manufacturing; Particulate and Microbial Control 1982 - 1986 Editor, National Safety Council, Campus Safety Newsletter Health Care Newsletter

PUBLICATIONS: Non-peer reviewed Trade Publications

Journal of Environmental Health: Tools for Environmental Health Published by: National Environmental Health Association

April 1997 April 1997 May 1997 June 1997 July/August 1997 September 1997 October 1997 November 1997 December 1997

Introduction The Dial and Temperature Standard Thermometer The Hand-Held Infrared Thermometer An Inexpensive Sound Level Meter Measuring Illuminance – the Type 217 Light Meter The LCD Light Meter The Biotest Reuter Centifugal Air Sampler Basic Testing Equipment for Electrical Circuits and Receptacles Disabled Access Survey Tools

6

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 33 of 41

Jan/Feb 1998 March 1998 April 1998 May 1998
June 1998 July/August 1998 September 1998 October 1998 November 1998 December 1998 Jan/Feb 1999
March, 1999 April 1999 May 1999 June 1999 July/August 1999 September 1999 October, 1999
November, 1999 December, 1999 Jan/Feb, 2000
March, 2000 April, 2000 May, 2000 June, 2000 July/August 2000 September 2000
October 2000 November 2000 December 2000 Jan/Feb 2001 March 2001 April 2001 May 2001 June 2001 July/August 2001 September 2001
October 2001 November 2001 December 2001 Jan/Feb 2002 March 2002 April 2002 May 2002
June 2002

Some Simple Field Tests for Use in Food Inspections Easy Lead-Screening Kits for Use in the Field The Millipore Sanitarian’s Kit A Practical Ultraviolet Inspection Light for the Detection of Rodent Urine Contamination: The Blak-Ray ULV-26P Audit and Inspection Tools for Children’s Play Areas The “Lollypop” Thermometer Disposable Indicating Thermometers More on Handheld Infrared Thermometers The Germ Detective Kit Doing it by the Numbers: ANSI/ASQC Z1.4 The Basic Inspection Kit: Some Not-So-Random Thoughts on Stuff We take for Granted Would You Believe - Another Thermometer? Moisture Detection Meters: Tools for all Occasions Swimming Pool Test Kits On Buying Tools for the Sanitarian The Dog Days of Summer: Humidity-Measuring Devices Need Definitive Answers? Go to the Standards. Infrared Thermometers Again: Temperature Verification, Other Useful Information, and a New Model Two Credentialing Courses for the Professional Sanitarian Measuring Thermal Comfort Two Great Little Tools: A Probe Thermometer and a Pocket Scale for Institutional Suicide Prevention A Simple, Scruffy Device for Measuring Water Pressure and Flow Tracking Air Movement Good Tools for Preventing Slips and Falls The Yin and Yang of the Sure Temp Temperature-Sensing Device Books as Tools A Proposed Standard for Infrared Thermometers Intended for Food Safety and, Two New Portable IR Thermometers with Unique Features Two by Dwyer: 460 Air Meter and Wind Meter The APC Plus Airborne Particle Counter Calibration, Calibration Logs and the Check-Temp The Best of the Best – An Update on Our Basic Inspection Kit Measuring Water Activity in Foods: the Pawkit AquaLab Safety, Septics and Scholarly Pursuits: Web sites and Mirrors The KD451 Indoor Air Quality Monitor A Thermometer Update and Other Valuable Information The Long-Forgotten Refractometer The Zylux Rapid Hygiene System for Measuring Cleanliness of Food Contact Surfaces Thermometrics The Atkins HACCP Kit + One A Thermometer Editorial A Superbly Accurate Motorized Psychrometer At Last, an Affordable Thermocouple Calibrator A Unique UV Penlight and the Latest Information on Hand Hygiene A Primer on Sampling for Biological Contaminants, Part One: Science and Theory A Primer on Sampling for Biological Contaminants, Part Two: Air Sampling Instrumentation

7

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 34 of 41

July/August 2002
September 2002 October 2002 November 2002 December 2002 Jan/Feb 2003 Jan/Feb 2015

A Primer on Sampling for Biological Contaminants, Part Three: Surface Sampling Techniques An IR Calibrator; A garage Door Safety Stop Pressure Gauge Thermometer Forks Radiation Monitor Monitoring pH The Best of the Best ‘03 A History of the American Academy of Sanitarians

Published tutorials presented at the National and Affiliate Annual Educational Conferences  Portable Instrumentation Workshop  The Art and Science of Inspection  Being an Expert Witness  Establishing a Consulting Practice as a Sanitarian  Principles of Biological Safety  A Brief History of the Sanitarian Profession  Fundamentals of Water Activity  ATP Monitoring Systems: Measuring Cleanliness  The Role of the Sanitarian in Disaster Response  Sampling and Enumeration of Environmental Microbes  Update to the 2005 Food Code: Implications to Inspections  What Constitutes a Foodborne Outbreak?  A Quick Guide to Field Sampling  History of the Sanitarian Profession  Integrated Cleaning and Measurement  Effective Use of ATP Monitoring  How Clean is Clean?  Best of the Best: Field Instrumentation  Street HACCP  Green Housekeeping  Field Instrumentation for Food Code Compliance Activities  Measuring Cleanliness

Corrections Managers’ Report:

The Corrections Advisor 1995 - 2003

A Sanitarian’s Notebook 2006 - 2007

Published by: Civic Research Institute, Inc.

August/September 1995 October/November 1995 February/March 1996 April/May 1996
June/July 1996
August/September 1996 October/November 1996
December/January 1997
February/March 1997
April/May 1997
August/September 1997

Prisons and Jails from an Environmental Health Perspective Life Safety in Correctional Facilities Facility Management: Sanitation and Noise Rating Cell Space; Improving Ventilation Quality Reducing Infection Risk: TB Isolation and Effective Use of Face-Masks Reducing Infection Risk: TB and Jail Intake Facilities Use Lighting to Improve Security in Older Prisons and Jails; Barber Shop Sanitation Keeping Inmates and Staff Healthy; TB Screening and Commissary Sanitation Proper Hand-Washing Facilities Protects Staff and Inmate Health; Maintaining a Comfortable Humidity Key Environmental Health Considerations for Food Service Providers; Debunking the Fluorescent lamp Health Risk Myth New FDA Food Code Emphasizes Safe-Handling Practices;

8

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 35 of 41

October/November 1997
February/March 1998 April/May 1998 August/September 1998 October/November 1998 December/January 1999 February/March 1999 June/July 1999 August/September 1999 October/November 1999 February/March 2000
June/July 2000 April/May 2001 June/July 2001
August/September 2001
October/November 2001 February/March 2002 April/May 2002 June/July 2002 December/January 2003 February/March 2003 June/July 2003 August/September 2003 June/July 2006: 12(1) Aug/Sept 2006: 12(2) Oct/Nov 2006: 12(3) Dec/Jan 2007: 12(4) Feb/Mar 2007: 12(5) April/May 2007: 12(6) June/July 2007: 13(1)

Cross Connections What Steps should be taken when a CO Is Exposed to Hepatitis?; Control of House Flies
Take Steps to Avoid Staff Problems with Latex Allergies; Return-to-Work Assessments Effective TB Prevention and Control; Nosocomial Infections in the Correctional Setting A Simple and Quick Self-Inspection Program How to Prevent Slip-and-Fall Injuries; Non-Health Consequences of Environmental Tobacco Smoke Tips for Designing a Safe and Comfortable Visiting Area; Odor Control Tips on Flashlight Safety; Hand Washing Policy and Guidelines Purchasing and Maintaining Small Equipment; Maintaining the Sanitary Integrity of Ice Handling Lead Contamination on the Firing Range; Introducing “HACCP” to the Correctional Kitchen Regulating Building Temperatures; Controlling Mice Tracing the Origin of Skin Irritation; Cleaning Scale Buildup on Vitreous China; Defining the Out-of-Order Cell Writing a Fire Safety Operations Plan; NSF Standards and Food Equipment Selection Cell Window Area and Daylight Orientation; Handling Food Service Complaints Mop Head Selection; Lighting Maintenance and Energy Conservation; Update on Latex Glove Allergy Evaluating “Trip-and-Fall” Potential in Tiling; Bringing Sink Operations to Regulatory Compliance; Assessing Seriousness of Label Warnings Pigeons and Pepper Spray Responding to Airborne Hazard Threats Addressing and Preventing Mold Problems; Rethinking the Need to Disinfect Addressing Temperature and Ventilation Problems; Maintaining a Clean Warehouse Turning Down the Noise Volume; Avoiding Musculoskeletal Injuries Dealing with Poisonous Plants; Avoiding Spreading Germs Food Allergies and Hospice Emergencies Infectious Disease control in Prisons: MRSA and Tuberculosis The Control of Filth Flies Mushfake and its Consequences Norovirus and its Control Floor Safety: A Realistic Approach to the Prevention of Slips and Falls Preventing the Spread of MRSA Infection Control and the Sanitation of Inmate Medication Laundry Operations: Efficiency and Economy
9

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 36 of 41

Aug/Septe 2007: 13(2) Oct/Nov 2007: 13(3) Dec/Jan 2008: 13(4)

Drinking Water Safety Washcloths and MRSA Lessons Learned: Histrionics and Environmental Health in
Corrections

CleanRooms: The Magazine of Contamination Control Technology Published by: PennWell Publishing Company

January 1997 June 2002

Microbial Contamination Biological Contaminants: Strategies of Investigation and Control Unfiltered – Principles of Biological Safety

CleanRooms: Life Sciences Supplement

January 1998

Biotech Safety Factors: Biological safety principles enhance

contamination control

January 1999

A Rational Approach to Disinfectants

1997 - 2003: CleanRooms Published Tutorials

 Principles, Practices and Management of Biological Safety in Clean

Room Environments

 Principles of Clean Room Disinfection, Sterilization and Biological

Validation

 Detection, Enumeration and Control of Biological Contaminants in Clean

Room Environments

 HACCP – A Scientific Approach to Compliance Monitoring

A²C² Published by: Vicon Publishing, Inc.

February 2000 5(2): Sampling for Airborne Biological Contaminants: A Rational Approach

Food Safety Magazine: The Sanitarian’s File Published by: The Target Group, Inc.

August/September 2002 8(4): A Rational Approach to Using and Selecting Hard Surface Disinfectants and Sanitizers
April/May 2003 9(2): Getting on the Same Page: Glossary Useful in Defining Industry Terms
June/July 2003 9(3): A Practical Perspective on Hand Washing
August/September 2003 9(4): A Simple Introduction to Thermometry and Basic Calibration
October/November 2003 9(5): Hot Tips for Using and Selecting Portable Thermometers
December 2003/January 2004 9(6): Inspections, Part 1: The Professional Sanitarian
February/March 2004 10(1): Inspections, Part 2: Expectations of the Regulator
April/May 2004 10(2): Inspections, Part 3: Compliance
June/July 2004 10(3): The Food Establishment Plan Review
August/September 2004 10(4): Successful Sampling, Part I: Essential Approaches

10

Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 37 of 41
October/November 2004 10(5): Successful Sampling, Part II: A Brief Primer on Biological Sampling
December 2004/January 2005 10(6): Successful Sampling Program, Part III: Environmental Air and Surface Techniques
February/March 2005 11(1): The Cold Hard Facts about Refrigeration Equipment
April/May 2005 11(2): Street HACCP: Paving the Way for Small Retail Operations
June/July 2005 11(3): 7 Simple Rules for Effective and Hygienic Dry Goods Storage
August/September 2005 11(4): Top 7 Processing and Foodservice Equipment Standards
October/November 2005 11(5): Shedding Light on the Art and Science of Lighting
December 2005/January 2006 11(6): Is Your Kitchen Certifiable? A Case for the Sanity of Food Protection Manager Programs
February/March 2006 12(1): The 2005 Food Code: A Regulator’s Reading and Perspective
April/May 2006 12(2): The Best of the Best: A Critical Look at Basic Inspection Tools
June/July 2006 12(3): Complaints and Crisis Management
August/September 2006 12(4): Green Housekeeping: Strategies and Sanitation Tools
October/November 2006 12(5): Infrared Thermometry
December 2006/January 2007 12(6): Food Security for the Small Retail Food Operation
February/March 2007 13(1): Regulatory Credentialing in Food Safety
April/May 2007 13(2): Ensuring Water Quality and Safety in Food Operations
June/July 2007 13(3): ATP Systems Help Put Clean to the Test
August/September 2007 13(4): Creating a Great Cutting Board and Wipe Rag Program
October/November 2007 13(5): Water Activity: A New Food Safety Tool
December 2007/January 2008 13(6): Egg Safety: Avoiding Shell Shock at Retail
February/March 2008 14(1): The Best of the Best: Portable Tools for the Food Sanitarian
April/May 2008 14(2): The Five W’s of Food Safety Forensics
June/July 2008 14(3): “Allergy Consciousness” for the Retail Food Industry
August/September 2008 14(4): SSOPs for the Retail Food Industry
October/November 2008 14(5): Bioaerosols
December 2008/January 2009 14(6): Cross-connections’ Contamination Woes
February/March 2009 15(1):
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Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 38 of 41

Integrated Cleaning and Measurement: A New Approach to Housekeeping and Sanitation April/May 2009 15(2):
The “M” in ICM: Using ATP to Evaluate Sanitation June/July 2009 15(3):
Taking a Closer Look at Inspections August/September 2009 15(4):
Ethnic Foods and the Sanitarian October/November 2009 15(5):
Sanitation in the Deli: Contamination-prone Equipment December/January 2009 15(6):
What “Bugs” Sanitarians About IPM April/May 2010 16(2):
Sampling, Part 1: The Basics June/July 2010 16(3):
Sampling, Part 2: Sampling Strategies August/September 2013 19(4):
The Sanitation of Ice Making Equipment October/November 2014 20(5):
Chemical Free Cleaning Revisited

Organic Processing Pubished by The Target Group, Inc.

October-December 2006 3(4). Toward Greener Housekeeping

American Jails: Sanitarian Files Published by: American Jail Association

March/April 2004 May/June 2004 July/August 2004 Sept./Oct. 2004 Nov./Dec. 2004 Jan./Feb. 2005 March/April 2005 May/June 2005 July/August 2005 Sept./Oct. 2005 Nov./Dec. 2005 Jan./Feb. 2006 March/April 2006 May/June 2006 July/August 2006 Sept./Oct. 2006 Nov./Dec. 2006
Jan./Feb. 2007 March/April 2007 May/June 2007 July/August 2007 Sept./Oct. 2007 Nov,/Dec. 2007

Introduction and Jail Lighting Determining Out-of-Service Cells Controlling Firing Range Hazards Dealing With Food Complaints and Grievances Bunk Beds Laundry Operations - Safety Laundry Operations – Infection Control Laundry Operations – Design, Equipment and Operations The Strange World of Jail Ventilation Standards Light and Color: A Low-Tech, Inexpensive Enhancement to Security Integrated Pest Management Preventing Slip and Falls in the Correctional Kitchen Jailhouse Slips,Trips and Falls Barbering and Infection Control Keeping it Green: Purchasing Safe Housekeeping Products Jailhouse Tattooing Developing Emergency Evacuation Plans for Jail Health Care Facilities Mops Keeping it Green: Purchasing Safe Housekeeping Products Sanitation and Inmate Medications Safe Jail Water Systems Noise Control Lessons Learned: A Rational Approach to Correctional Public Health

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Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 39 of 41
KaiScience: www.kaiscience.com 2007 – 2009
 A Rational Approach to Hard Surface Disinfectants  Remove It and Prove It: Better Cleaning Through Scientific Validation  ATP Systems Help Put Clean to the Test  Learning from B.F. Skinner  The Science and Technology of ATP  Bioaerosols  Integrated Cleaning and Measurement for Retail Food Operations
Executive Housekeeping Today Published by the International Executive Housekeepers Association
March 2009: Integrated Cleaning and Measurement: A New Approach to Housekeeping and Sanitation March 2012: Measuring Cleanliness
Gluten-Free Living
Number 1, 2010: A Clean Sweep for your GF Kitchen: Food Safety Expert’s Tips for Controlling Cross-contamination
Rental Management
May 2013: Helping Customers Eliminate Bedbugs: Vacuums and Steamers can Help do the Job.
The Journal of Cleaning, Restoration & Inspection
August 2014: 1(4): Measuring Cleanliness
PUBLICATIONS: PEER REVIEWED
J. McMicking, Kummler, R. and Powitz, R., 1990. Wayne State University programs in hazardous waste education. Proceedings of the Fourth Annual National Meeting, Academy of Certified Hazardous Materials Managers, Ann Arbor, Michigan.
R. Kummler, Powitz, R. and Witt, C., 1990. USDHHS evaluation of hazardous waste training in the United States. Proceedings of the Fourth Annual National Meeting, Academy of Certified Hazardous Materials Managers, Ann Arbor, Michigan.
R. Powitz, R. Kummler and Hughes, C., 1990. Hazardous waste professional credentialing. Proceedings of the Fourth Annual National Meeting, Academy of Certified Hazardous Materials Managers, Ann Arbor, Michigan.
C. Miller, Kummler, R., Powitz, R. and McMicking, J., 1990. Education Program for hazardous waste management. ASCE Journal, April 1990.
R. Powitz, Kummler, R. and McMicking, J., 1990. A graduate certificate program: Education and training for hazardous waste specialist. Journal of Environmental Health, 52: 230.
R. Kummler, Powitz, R. and McMicking, J., 1990. The USDHHS study of hazardous waste education. Proceedings of the National Forum on Education and Continuing Development for the Civil Engineer, American Society of Civil Engineers, New York.
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Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 40 of 41
R. Kummler, Powitz, R., Witt, C. and Stern, B., 1990. DHHS evaluation of the hazardous waste education and training in the United States. Proceedings of the HAZMAT '90 Conference, Rosemont, Illinois.
R. Kummler, Powitz, R., Witt. C. and Stern, B., 1990. A comprehensive survey of graduate education and training in hazardous waste management. J. Air and Waste Management Assoc., (40): 32.
J. McMicking, Kummler, R. and Powitz, R., 1989. Graduate programs for the 90's in hazardous waste management - Dealing with the shortage of professionals. Proceedings of the International Specialty Conference on Hazardous Waste Management in the 90's. Banff, Alberta, Canada.
Powitz, R.W. 1989. A cross-disciplinary approach to the control of microbial fouling in ultrapure water systems. Conference Transcripts: Eighth Annual Semiconductor Pure Water Conference. Santa Clara, California, 11 pages.
J. McMicking, Powitz, R. and Kummler, R., 1987. Continuing education in hazard waste management: The graduate certificate. Proceedings of International Congress on Hazardous Materials Management. Pudvan Publishing Co. pp.596-604
Powitz, R.W. 1986. A comprehensive program for the management of hazardous wastes on a medical campus. Proceedings of the Second Annual Hazardous Materials Management Conference. West Tower Conference Management Co. Wheaton, IL. pp. 402-406.
Powitz, R.W. and Hunter, J. 1986. The development of Simple and Inexpensive devices to control microbial contamination in laboratory water systems. Proceedings of the Twenty-ninth Biological Safety Conference, Lexington, KY. (Abstracts only).
Powitz, R.W. and Hunter, J. 1985. Design and performance of single-lamp, high flow ultraviolet disinfectors. Ultrapure Water 2(1): 32-34.
Powitz, R.W. and Hunter, J. 1985. Design and performance of single lamp, high flow ultraviolet disinfectors. Conference Transcripts: Fourth Annual Semiconductor Purewater Conference. San Francisco, CA. pp. 37-46.
Powitz, R.W., Hunter; J. and Layton, L.E. 1984. Contamination in high purity laboratory water production systems. Proceedings of the XXVII Biological Safety Conference. Raleigh, NC. (Abstracts only).
Powitz, R.W. 1983. Managing hazardous wastes on campus: the evolution of a comprehensive program. Monograph No. 46, Thirtieth National Conference on Campus Safety. National Safety Council, Chicago, IL. 1983.
Powitz, R.W. 1982. An inexpensive needlestick prevention program. Proceedings of the XXV Biological Safety Conference. Boston, MA. pp. 105-107. Poster Session: A safe needle disposal program., 25th Annual Biological Safety Conference. Boston, Massachusetts.
Krone, L.J., Powitz, R.W. and Worrell, L.F. 1978. Identification of the role performed by the sanitarian as a health professional: final report. National Environmental Health Association. Denver, CO.
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Case 4:15-cv-00250-DCB Document 206-3 Filed 08/17/16 Page 41 of 41
Powitz, R.W., Hinden, M.N. and McComb, R.C. 1978. The safe use of tap water in bubble style humidifiers. Prepared for the Department of Respiratory Therapy, University of Minnesota, Minneapolis, MN. Powitz, R.W., Vesley, D. and Greene, V.W. 1977. Some administrative an microbiological considerations in maintenance of the sterile integrity of prepackaged, disposable items for use in health care facilities: final report. Contract V101 (134) pA475, Veterans Administration, Washington, DC. Powitz, R.W. 1976. Are microbiological air quality standards for hospitals realistic? Journal of Environmental Health, 39(3): 196-197. Contributing author. 1976. Standards for Health Services in Correctional Institutions. American Public Health Association, Washington, DC.
15

Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 1 of 22

1 Harold J. McElhinny* Kevin M. Coles*
2 Elizabeth G. Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: HMcElhinny@mofo.com Email: KColes@mofo.com
6 Email: EBalassone@mofo.com

7 Attorneys for Plaintiffs

8 * Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

9 Additional counsel listed on next page

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

14 Jane Doe #1; Jane Doe #2; Norlan FLORES, on behalf of themselves and
15 all others similarly situated,

16 v.

Plaintiffs,

17 Jeh Johnson, Secretary, United States
18 Department of Homeland Security, in his official capacity; R. Gil Kerlikowske,
19 Commissioner, United States Customs & Border Protection, in his official
20 capacity; Michael J. Fisher, Chief of the United States Border Patrol, in his
21 official capacity; Jeffrey Self, Commander, Arizona Joint Field
22 Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent-

23 Tucson Sector, in his official capacity,

24

Defendants.

Case No. 4:15-cv-00250-TUC-DCB
DECLARATION OF JOE GOLDENSON, M.D. IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

25

26

27

28

DECL. OF JOE GOLDENSON, M.D. IN SUPPORT OF PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION CASE NO. 4:15-CV-00250-DCB sf-3597245

Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 2 of 22

1 Colette Reiner Mayer* MORRISON & FOERSTER LLP
2 755 Page Mill Road Palo Alto, CA 94304-1018
3 Telephone: (650) 813-5600 Facsimile: (650) 494-0792
4 Email: CRMayer@mofo.com
5

Travis Silva* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: tsilva@lccr.com

6 Louise C. Stoupe*

Pieter S. de Ganon*

Victoria Lopez (Bar No. 330042)**

7 MORRISON & FOERSTER LLP

Daniel J. Pochoda (Bar No. 021979)

Shin-Marunouchi Building, 29th Floor

James Duff Lyall (Bar No. 330045)**

8 5-1, Marunouchi 1-Chome

ACLU FOUNDATION OF ARIZONA

Tokyo, Chiyoda-ku 100-6529, Japan

3707 North 7th Street, Suite 235

9 Telephone: +81-3-3214-6522

Phoenix, AZ 85014

Facsimile: +81-3-3214-6512

Telephone: (602) 650-1854

10 Email: LStoupe@mofo.com

Facsimile: (602) 650-1376

Email: PdeGanon@mofo.com

Email: vlopez@acluaz.org

11

Email: dpochoda@acluaz.org

Email: jlyall@acluaz.org

12 Linton Joaquin*

Karen C. Tumlin*

13 Nora A. Preciado*

NATIONAL IMMIGRATION LAW

14 CENTER

3435 Wilshire Boulevard, Suite 2850

15 Los Angeles, CA 90010

Telephone: (213) 639-3900

16 Facsimile: (213) 639-3911

Email: joaquin@nilc.org

17 Email: tumlin@nilc.org

Email: preciado@nilc.org

18

Mary Kenney*

19 Emily Creighton*

Melissa Crow*

20 AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200

21 Washington, D.C. 20005

Telephone: (202) 507-7512

22 Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org

23 Email: ecreighton@immcouncil.org

Email: mcrow@immcouncil.org

24

Attorneys for Plaintiffs

25

* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

26 ** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

27

28

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1 I, JOE GOLDENSON, M.D., submit the following declaration on behalf of Plaintiffs in

2 support of their Motion for Preliminary Injunction:

3 I. 4

BACKGROUND 1. I am a medical physician with 28 years of experience as the

5 Director/Medical Director for Jail Health Services for the San Francisco Department of

6 Public Health. In that role, I provided direct clinical services and managed the

7 correctional health enterprise, including the budget, human resources and medical, mental

8 health, dental and pharmacy services.

9

2. I am currently a member of the Board of Directors of the National

10 Commission on Correctional Health Care and past President of the California chapter of

11 the American Correctional Health Services Association.

12

3. I have worked extensively as a correctional health medical expert and court

13 monitor. I am currently one of the medical experts retained by the federal district court

14 Plata v. Brown, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical care provided to

15 inmate patients in the California Department of Correctional Rehabilitation. I have been a

16 medical expert/monitor for Cook County Jail in Chicago, as well as in jails in

17 Washington, Texas, and Florida, and in State Departments of Corrections in Illinois, Ohio,

18 and Wisconsin.

19

4. A true and correct copy of my current resume is attached as Attachment A

20 to this report.

21

5. I have been retained to consult with Plaintiffs’ counsel, review documents

22 and other information, prepare declarations, and be available to testify regarding my

23 opinions on behalf of Plaintiffs in connection with litigation brought against Defendants.

24

6. I have been asked to render opinions concerning the medical screening and

25 medical care of detainees in U.S. Customs and Border Protection facilities within the

26 Tucson Sector of the U.S. Border Patrol, and related matters as discussed in this

27 declaration.

28

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1 II. MATERIALS CONSIDERED

2

7. In forming my opinions, I reviewed documents produced by Defendants in

3 this case, including documents related to medical screening and medical care of detainees

4 in U.S. Customs and Border Protection facilities within the Tucson Sector of the U.S.

5 Border Patrol.

6

8. I also reviewed the declarations of individuals who were formerly detained

7 in U.S. Customs and Border Protection facilities within the Tucson Sector of the U.S.

8 Border Patrol submitted in support of Plaintiffs’ Motion for Class Certification.

9

9. I am informed that sanitarian Robert Powitz and corrections expert Eldon

10 Vail personally inspected all four of the Border Patrol Stations made available to Plaintiffs

11 for inspection—Tucson, Casa Grande, Douglas and Nogales—on September 8 through

12 September 11, 2015. I have read the declarations of Robert Powitz and Eldon Vail

13 submitted in support of Plaintiffs’ Motion for Preliminary Injunction. Specifically, Mr.

14 Vail reports that he was told by Defendants’ personnel, during these inspections, that no

15 medical screening is conducted at any of these facilities. (Decl. of Eldon Vail (“Vail

16 Decl.”) In Support of Motion for Preliminary Injunction ¶ 138.)

17

10. I also reviewed the declaration of Joseph Gaston, data analyst at Morrison &

18 Foerster LLP, regarding “e3DM” spreadsheet data produced by Defendants, which

19 purportedly reflects Defendants’ logging system that tracks certain data points for

20 detainees confined in a U.S. Customs and Border Protection facility within the Tucson

21 Sector of the U.S. Border Patrol. (Decl. of Joseph Gaston in Support of Motion for

22 Preliminary Injunction.) Specifically, I reviewed the analysis related to any indications of

23 medical treatment of detainees held in a facility within the Tucson Sector. (Id. ¶¶ 54-55.)

24 III. MEDICAL SCREENING STANDARDS IN DETENTION SETTINGS

25

11. The National Commission on Correctional Health Care (“NCCHC”) is an

26 organization that sets widely recognized standards for health services in correctional

27 facilities. Informed by health, legal, and corrections professions, NCCHC establishes

28 Standards for the management of a correctional health services system. Written in

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1 separate volumes for prisons, jails and juvenile confinement facilities, plus a manual for

2 mental health services and another for opioid treatment programs, the Standards cover the

3 areas of care and treatment, health records, administration, personnel and medical-legal

4 issues. Since the 1970s, NCCHC offers an accreditation program based on its Standards,

5 to determine whether correctional institutions meet the standards in provision of health

6 services.

7

12. Among its other Standards, NCCHC has established a Receiving Screening

8 Standard to take place for all detainees as soon as they are admitted into a facility, by 9 qualified health care professionals or health-trained correctional officers. (Ex. 202.)1

10

13. Consistent with this Standard, medical intake in a detention setting consists

11 of two components: (1) immediate medical triage to determine if there are any issues that

12 would preclude acceptance into the facility and (2) a more thorough medical and mental

13 health screening. In many facilities, this is a two-step process with medical triage

14 performed upon entry into the facility, and the more thorough screening soon after the

15 person has been accepted into the facility.

16

14. This screening includes both a face-to-face interview using a structured

17 questionnaire and, whenever possible, a review of the individual’s prior medical record.

18 The questionnaire enquires into an individual’s current problems and medications; past

19 history, including hospitalizations; mental health history, including current or past suicidal

20 ideation; symptoms of chronic illness; medication and/or food allergies; and dental

21 problems. For female detainees, it is important to obtain a history of current and past

22 pregnancy, as well as the date of last menstrual period.

23

15. Whenever possible, intake screening is performed by qualified health

24 professionals. In smaller detention settings, where health care staff is not present at all

25 times, specially trained custodial staff conducts the intake screening.

26

27

1 All exhibits referenced in this declaration are to the Appendix of Exhibits In Support of

Plaintiffs’ Motion for Preliminary Injunction. 28

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1

16. Training given to correctional officers who conduct the receiving screening

2 is a crucial aspect of the process. At a minimum, they should receive periodic training on

3 taking a medical history, making necessary observations, documentation of findings,

4 appropriate actions to take for common medical and mental health issues, and medical

5 confidentiality. There must also be a procedure for officers to obtain guidance and

6 direction from a health care professional for problems beyond the scope of their training

7 and experience.

8

17. Finally, information obtained as part of the screening process should be kept

9 as accessible records so that a detention facility has information regarding the medical

10 status of individuals in its custody, and can provide that information to health care

11 professionals as needed.

12 IV. FAILURE TO SCREEN AT TUCSON SECTOR CBP FACILITIES

13

18. U.S. Customs and Border Protection has adopted limited policies related to

14 medical screening. For example, Section 4.3 of the “U.S. Customs and Border Protection

15 National Standards on Transport, Escort, Detention, and Search” states that “[u]pon a

16 detainee’s entry into any CBP hold room, officers/agents must ask detainees about, and

17 visually inspect for any sign of injury, illness, or physical or mental health concerns and

18 question the detainee about any prescription medications.” (Ex. 95 at USA000631.) It

19 also states that “Observed or reported injuries or illnesses should be communicated to a

20 supervisor, documented in the appropriate electronic system(s) of record, and appropriate

21 medical care should be provided or sought in a timely manner.” (Id.)

22

19. According to the statements from Defendants’ personnel during the

23 inspections performed by Plaintiffs and their experts, as well as the declarations of former

24 detainees submitted in this case, however, medical screening is not performed at these

25 facilities in the Tucson sector.

26

20. As explained above, Mr. Vail reports that he was told by Defendants’

27 personnel that no medical screening is conducted at any of these facilities. (Vail Decl. ¶

28 138.)

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21. The declarations of former detainees are consistent with this representation

2 that there is no medical intake screening performed at these facilities. For example, Odilla

3 Velasquez Vasquez was detained by Border Patrol and transported to the Douglas Border

4 Patrol Station and held in a cell for 18 hours. (ECF No. 2-2, Ex. 19 ¶ 7.) Ms. Vasquez

5 declared that when she arrived with her daughter to the facility “we were never asked

6 about our health nor given a formal medical exam.” (Id. ¶ 19.) And when she asked

7 officials at the facility for help and explained that her daughter had an ear infection, they

8 said “there is no medicine here.” (Id.)

9

22. Valdemar Perez Perez and his son were also held at the Douglas Station, for

10 16 hours, before being transferred to the Tucson Border Patrol Station and detained in that

11 station in a cell for 20 hours. (ECF No. 2-2, Ex. 21 ¶¶ 7, 18.) Neither Mr. Perez nor his

12 son was given a formal medical exam or asked about his medical health. (Id. ¶ 24.)

13

23. The declarations of numerous other former detainees confirm that these

14 facilities do not have appropriate medical screening as part of the intake process. (E.g.,

15 ECF No. 2-2, Ex. 30 ¶ 20 (no medical screening despite both her and her 2 year old son

16 having bad coughs); id., Ex. 29 ¶¶ 19, 24 (no medical screening despite 1.5 year old

17 daughter having stomach pain); id., Ex. 28 ¶ 30 (no medical screening despite her two

18 children feeling sick); ECF No. 2-3, Ex. 42 ¶ 9 (no medical screening and, after diclosing

19 she was pregnant, agents insulted her, poked her stomach, and contended she was not

20 pregnant); ECF No. 2-1, Ex. 16 ¶ 16 (was not asked about her health despite being five

21 months pregnant); ECF No. 2-2, Ex. 23 ¶ 7 (no medical screening upon entry to facility);

22 ECF No. 2-3, Ex. 36 ¶ 25 (same).)

23 V. 24

FAILURE TO SCREEN PUTS DETAINEES AT MEDICAL RISK 24. Medical screening during the intake process at a detention facility is one of

25 the most essential components of the health care program in a detention setting.

26 Correctional officers who conduct such screening are the gatekeepers—this process

27 ensures the safety of both detainees and staff. All individuals entering a detention facility,

28 whether newly apprehended or transferring from another facility, must be screened so that

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1 correctional staff are aware of the medical and mental health of each individual entering

2 detention and are able to respond appropriately, including enlisting assistance of medical

3 professionals whenever this is necessary.

4

25. Any screening conducted in the field prior to an individual’s arrival at a

5 detention facility is not an adequate replacement for this intake screening process for a

6 variety of reasons. First, it is unclear whether agents in the field receive sufficient

7 medical training to make determinations regarding the medical and mental health

8 conditions of apprehended individuals. Second, nothing in Defendants’ production

9 suggests that field screening is standardized by any protocol or procedure.

10

26. Moreover, a significant period of time lapses between the time of

11 apprehension and the time of admission into a detention facility—which provides an

12 opportunity for the conditions of a detainee to change.

13

27. Lastly, it does not appear that any such screening is documented, or that

14 written documentation is transferred to the detention facility. Without the appropriate

15 recordkeeping, any such screening is useless to understand the medical conditions of each

16 detainee and the medical risks for the facility once that individual is admitted.

17

28. Intake screening is so critical because it allows staff to determine whether

18 newly arriving detainees have any urgent or emergent health care needs; are suffering

19 from a potentially communicable disease requiring isolation and enhanced disinfection

20 processes following their transfer or release; are receiving medications that must be

21 continued; or have medical or mental health conditions that require referral for follow-up.

22

29. Failure to perform medical screening at intake puts detainees at medical risk

23 across all of these areas. Individuals with urgent or emergent health care needs often

24 require care that cannot be adequately provided in a detention facility or by correctional

25 officers without medical training and certification. If individuals are not screened at

26 intake, those with urgent or emergent medical problems may not be promptly identified

27 and sent to an outside medical facility or emergency room for care and clearance.

28

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30. Failure to adequately screen detainees also puts these individuals—and staff

2 at the facility—at additional medical risk of infectious disease. The spread of infectious

3 diseases is a substantial health and public health concern in a detention setting.

4 Documents from the Tucson Coordination Center show that highly contagious skin

5 diseases, like scabies, are an issue for facilities in the Tucson sector. (Ex. 84 at

6 USA00167 (“We must be prepared for the onslaught of Scabies, Chiggers and other bites

7 and bumps.”).) Given the proximity of physical space in which individuals are detained,

8 unidentified infectious diseases can create an emergency health care issue that a detention

9 facility is not equipped to address. Moreover, if unrecognized and untreated prior to

10 release, these individuals pose a serious public health threat when they are released.

11 VI. DETAINEES IN TUCSON SECTOR CBP FACILITIES HAVE HIGHER MEDICAL RISK
12

13

31. The risk associated with CBP’s failure to perform adequate medical

14 screening is escalated by the condition of detainees arriving in the Tucson Sector

15 facilities. The journey for individuals attempting to cross the Tucson border is often one

16 of extreme physical hardship—extended physical exertion from walking, lack of sufficient

17 water and food, and no access to medications and other medical supplies.

18

32. For example, former detainee Maria Lorena Lopez Lopez describes in her

19 declaration that the group she was with “had been abandoned in the desert for

20 approximately one week without enough food or water, so I was relieved when Border

21 Patrol found us.” (ECF No. 2-2, Ex. 23 ¶ 5; see also, e.g., id., Ex. 29 ¶¶ 3, 16, 19 (mother

22 and 1.5 year old daughter had not eaten in four days before they were detained); ECF No.

23 2-3 ¶¶ 3, 12 (mother and two year old daughter had been walking for 15 hours in the

24 desert, were cold, hungry, tired, and suffering from headache and earache pain before they

25 were detained); id., Ex. 35 ¶ 13 (mother and three year old daughter had not eaten for a

26 day before they were detained); ECF No. 2-1, Ex. 16 ¶ 3 (mother with 10 year old

27 daughter and 8 year old son had not eaten for a day before they were detained).)

28

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33. The former detainee declarations describe how these conditions can

2 continue throughout an individual’s detention in a Tucson Sector facility, including being

3 held in detention for 12 or more hours without provision of adequate food and water. For

4 example, Anselma Angela Ambrosio Diaz and her 7 year old son were detained at the

5 detention facility in Douglas for one night and then transferred to the Tucson facility.

6 (ECF No. 2-1, Ex. 5 ¶¶ 3, 14, 16. ) They were detained for almost 24 hours but did not

7 receive any food or drinking water, only two small juice boxes each. (Id. ¶¶ 13, 17.)

8

34. Jesus Alfredo Mesa Barbosa was held in a cell for 16 hours at the Nogales

9 facility. (ECF No. 2-3, Ex. 43 ¶¶ 4, 22.) He was not given any food or drinking water

10 during that time. (Id. ¶¶ 18-19.) He was then transferred to the Tucson facility where he

11 was detained for three days. (Id. ¶ 22.) For the next two days, he continued to be held

12 without food and water (id. ¶ 28, 32), which he finally received on his final day at the

13 Tucson facility (id. ¶ 38, 39).

14

35. The former detainee declarations also evidence the unhygienic and

15 unsanitary conditions of the holding cells or detention rooms in Tucson Sector facilities.

16 (See, e.g., ECF No. 2-1, Ex. 5 ¶¶ 10, 12, 15 (no soap or way to wash hands at either

17 Tucson or Douglas facility, while 6 year old boy also in cell at Douglas became sick

18 during the night and was vomiting); id., Ex. 9 ¶ 28 (used toilet paper scattered on ground

19 in cell, no waste container); id., Ex. 8 ¶ 11 (diapers and toilet paper strewn around toilet in

20 cell, no waste container).)

21

36. The lack of sufficient hydration and nutrition both prior to and during

22 detention in a Tucson Sector facility, coupled with the hygiene and sanitation issues in

23 each of these facilities, puts detainees at higher medical risk.

24

37. Severe dehydration is a medical emergency and requires immediate medical

25 attention. Prolonged lack of water can result in severe dehydration. Potential

26 complications of dehydration are heat stroke, seizures, shock, kidney failure, coma, and

27 death.

28

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38. Inadequate hygiene can cause outbreaks of serious medical illnesses such as

2 food poisoning, amebic dysentery, hepatitis, and skin infections, such as life-threatening

3 staphylococcal infections.

4

39. Under these circumstances, medical screening to identify and address urgent

5 or emergent medical issues is even more critical.

6 VII. ACCESS TO MEDICAL CARE AT TUCSON SECTOR CBP FACILITIES

7

40. In addition to its provisions regarding medical screening, Section 4.3 of the

8 “U.S. Customs and Border Protection National Standards on Transport, Escort, Detention,

9 and Search” states that “[o]bserved or reported injuries or illnesses should be

10 communicated to a supervisor, documented in the appropriate electronic system(s) of

11 record, and appropriate medical care should be provided or sought in a timely manner.”

12 (Ex. 95 at USA000631.)

13

41. The documents produced by Defendants also suggest that facilities in the

14 Tucson Sector rely upon emergency rooms and ambulance staff for medical care of

15 detainees, as there are usually not health care professionals on staff at these detention

16 facilities. (Ex. 84 at USA000164 (“Any subject that requests medical attention, or visible

17 [sic] appears to need medical attention should be evaluated by an EMT. If there is not an

18 EMT on duty then the subject should be taken to University Medical Center – South

19 Campus for treatment.”).)

20 VIII. FAILURE TO PROVIDE ACCESS TO MEDICAL CARE AT TUCSON SECTOR CBP FACILITIES
21

22

42. According to the declaration of data analyst Joseph Gaston, the e3DM data

23 shows that between June 10, 2015 to September 28, 2015, there were approximately 527

24 incidents of medical treatment reportedly provided to a detainee, out of 17,006

25 “deportable aliens” detained at U.S. Customs and Border Protection facilities within the

26 Tucson Sector of the U.S. Border Patrol. (Decl. of Joseph Gaston in Support of Motion

27 for Preliminary Injunction ¶ 54.)

28

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43. But numerous declarations of former detainees in different facilities indicate

2 a practice that is contrary to the U.S. Customs and Border Protection National Standards

3 regarding the provision of medical care: officers ignore medical issues raised by

4 detainees, as well as their explicit requests for medical attention.

5

44. For example, Maria Lorena Lopez Lopez declares that upon her arrival at

6 the Naco Border Patrol station: “I did not receive a medical evaluation, even though I was

7 experiencing heavy, sustained vaginal bleeding.” (ECF No. 2-2, Ex. 23 ¶ 7.) “I asked for

8 medical attention but the agents said was just my period and gave me some tampons. I

9 was very worried about my health but I did not receive a medical examination until after I

10 was transferred to ICE custody, approximately five days later.” (Id.)

11

45. Luis Carlos Valladares Martinez was detained in Agua Prieta and

12 transported to the Douglas Border Patrol station, where he was kept in a cell for

13 approximately two days and two nights, then transferred to the Tucson station and kept in

14 a cell for another eight hours. (ECF No. 2-3, Ex. 40 ¶¶ 3-4, 8.) He explains: “I would

15 have liked medical treatment for a large, deep gash I got on my chest when trying to cross

16 the border. But when I showed it to an agent he said it was nothing. I didn’t bring it up

17 again because they don’t listen, they get mad just by us talking.” (Id. ¶ 15.)

18

46. Several other former detainees described various injuries and medical

19 conditions for which they requested medical attention but were denied. (E.g., ECF No. 2-

20 3, Ex. 39 ¶ 4 (asked to see a doctor for head pain and sickness, agents said they would

21 call, but no one ever came); ECF No. 2-2, Ex. 19 ¶ 19 (seven year old daughter developed

22 ear infection while in detention, told officials and asked for help but they said “there is no

23 medicine here”); id., Ex. 30 ¶¶ 20, 21 (she and her 2 year old son did not receive medical

24 treatment for severe coughs, and also observed agent tell other detainee reporting illness

25 that he would have to “put up with the sickness because there was no way to get medical

26 attention); ECF No. 2-3, Ex. 35 ¶ 30 (told agent that her head and stomach hurt but agent

27 did not offer medical care, and also observed agent telling woman crying from stomach

28 paid that “it was just because of the hunger or cold and was unimportant and she did not

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1 need medical attention”); ECF No. 2-1, Ex. 7 ¶ 17 (another man in cell was suffering from

2 allergy attack, requested help but agents did nothing); id., Ex. 9 ¶ 13 (told guard she had a

3 headache and fever, guard said “I am not a doctor” and that even if he had pills, he would

4 not give them to her); see also id., Ex. 5 ¶ 10 (in cell with 6 yr old boy who was vomiting,

5 with no way to get agents’ attention for help); id., Ex. 11 ¶ 20 (hurt shoulder while

6 walking for 10 days before detention, had no opportunity to access medical care).)

7 IX. PRESCRIPTION CONTINUATION AND ACCESS TO MEDICATION AT TUCSON SECTOR CBP FACILITIES
8

9

47. It is standard in detention facilities similar those within the Tucson Sector of

10 the U.S. Border Patrol to have in place a policy maximizing a detainee’s ability to

11 continue prescribed medication.

12

48. For detainees who arrive at Tucson Sector facilities with prescribed

13 medication, Section 4.10 of the “U.S. Customs and Border Protection National Standards

14 on Transport, Escort, Detention, and Search” states that a non “U.S.-prescribed”

15 medication must either be “validated by a medical professional” before it can be self-

16 administered by a detainee, or otherwise that detainee “should be taken in a timely manner

17 to a medical practitioner to obtain an equivalent U.S. prescription.” (Ex. 95 at

18 USA000634.)

19 X. 20

FAILURE TO PROVIDE PRESCRIPTION CONTINUATION AND ACCESS TO MEDICATION AT TUCSON SECTOR CBP FACILITIES

21

49. Like the policies related to medical care, the declarations of former

22 detainees show that, in practice, officers deny detainee requests for medication, even

23 prescription medication, rather than follow the policies and procedures related to

24 medication in the U.S. Customs and Border Protection National Standards.

25

50. For example, Fernando Munguilla Erasno was detained at the Douglas

26 facility for 24 hours, then transferred to the Sonoita facility for another 24 hours. (ECF

27 No. 2-1, Ex. 6 ¶¶ 8, 18.) Mr. Erasno had a prescription for a heart condition, which

28 causes him to have heart pain and numbness in his left arm. (Id. ¶ 15.) While he did not

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1 have this prescription with him when he was detained, he told agents about his heart

2 condition. (Id.) The agents told him that they could not prescribe anything for him. (Id.)

3 He also told the guards about his heart condition at the Sonoita facility, but again the

4 guards said they could not give him anything and that a doctor had to see him first. (Id.)

5

51. Maria de Jesus Lopez Magdaleno was detained in a cell at the Nogales

6 facility overnight for 12 hours. (Id., Ex. 9 ¶¶ 5-6.) She states: “I was taking medication

7 for an ovarian cyst that I had been diagnosed with. The guards did not let me take the

8 medication. . . . I was supposed to take the medicine for five days but I had only taken two

9 or three days of the medicine when I was detained and they didn’t let me take any more.”

10 (Id. ¶ 14; see also ECF No. 2-3, Ex. 35 ¶ 14 (carrying medication for severe migraines and

11 stomach pain which was taken away).)

12

52. Beyond medication that a detainee has been prescribed or is carrying when

13 they are detained, the declarations also show that agents refuse requests for medication

14 based on sickness or pain experienced by individuals while in detention. (See, e.g., ECF

15 No. 2-2, Ex. 25 ¶ 17 (woman detained with her asked for medicine for fever but said they

16 could not give her anything because they were not doctors); ECF No. 2-3, Ex. 36 ¶ 25

17 (she and her 9 and 15 yr old daughters asked for medication for headache pain, agents told

18 them that they did not give out medication).)

19 XI. FAILURE TO PROVIDE ACCESS TO MEDICAL CARE PUTS DETAINEES AT MEDICAL RISK
20

21

53. Failure to provide access to medical care and medications, including

22 prescribed medication, imposes obvious but serious medical risks on detainees. Denying

23 or delaying access to medical care for a detainee could exacerbate his or her medical

24 condition and, depending on the condition, could be life threatening.

25

54. Withholding prescribed medication—or access to obtaining that medication

26 through a new prescriber—is particularly serious for those whose medications must be

27 continued in order to avoid urgent health care problems.

28

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Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 15 of 22

1 XII. CONCLUSIONS

2

55. Based on my review of documents, former detainee declarations, and my

3 understanding from representations by Defendants’ personnel during the inspection of the

4 four Border Patrol Stations, it is my opinion that the failure to perform adequate medical

5 screening of detainees and provide adequate access to medical care in U.S. Customs and 6 Border Protection facilities within the Tucson Sector of the U.S. Border Patrol results in 7 serious risk of present or future harm to detainees and staff in these facilities.

8

9

Executed this 4th day of December, 2015.

10

11

__________________________________

JOE GOLDENSON, M.D.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECL. OF JOE GOLDENSON, M.D. IN SUPPORT OF PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION

13

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Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 16 of 22
Attachment A

Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 17 of 22
CURRICULUM VITAE
JOE GOLDENSON, MD 1406 CYPRESS STREET BERKELEY, CA 94703
(510) 524-3102 jgoldenson@gmail.com

EDUCATION

Post Graduate Training

February 1992

University of California, San Francisco, CPAT/APEX

Mini-Residency in HIV Care

1979-1980

Robert Wood Johnson Fellowship in Family Practice

1976-1979

University of California, San Francisco

Residency in Family Practice

Medical School 1973-1975
1971-1973

Mt. Sinai School of Medicine, New York M.D. Degree University of Michigan, Ann Arbor

Undergraduate Education

1967-1971

University of Michigan, Ann Arbor

B.A. in Psychology

PROFESSIONAL EXPERIENCE

Practice Experience 1993-2015
1991-1993
1990-1991
1987-1990
1980-1987 1975-1976

Director/Medical Director Jail Health Services San Francisco Department of Public Health Medical Director Jail Health Services San Francisco Department of Public Health Chief of Medical Services, Hall of Justice Jail Health Services San Francisco Department of Public Health Staff Physician Jail Health Services San Francisco Department of Public Health Sabbatical Staff Physician United Farm Workers Health Center, Salinas, CA

Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 18 of 22

Consulting 6/14-9/14 6/10-12/13
6/08-6/12 5/08-9/09 1/08
9/07-1/10
8/06-8/12
6/05 11/02-4/03 4/02-8/06
4/02-Present
1/02-3/02
8/01-4/02 7/01-4/02 1/96-1/14 5/95-6/08
3/98-12/98 2/98 6/94

Medical expert for the Illinois Department of Corrections and the ACLU of Illinois Federal Court appointed Medical Monitor, U.S. v. Cook County, et al., 10 C 2946, re: medical care in the Cook County Jail Member, Plata v. Schwarzenegger Advisory Board to the Honorable Thelton E. Henderson, U.S. District Court Judge Medical Expert for ACLU re Maricopa County Jail, Phoenix, AZ Member of the National Commission on Correctional Health Care’s Technical Assistance Review Team for the Miami Dade Department of Corrections Federal Court appointed Medical Expert, Herrera v. Pierce County, et al., re: medical care at the Pierce County Jail, Tacoma, WA State Court Appointed Medical Expert, Farrell v. Allen, Superior Court of California Consent Decree re medical care in the California Department of Juvenile Justice Member of Technical Assistance Review Team for the Dallas County Jail Medical Expert for ACLU re Jefferson County Jail, Port Townsend, Washington Federal Court Medical Expert, Austin, et. al vs Wilkinson, et al, Class Action Law Suit re: Prisoner medical care at the Ohio State Penitentiary Supermax Facility
Federal Court Medical Expert, Plata v. Schwarzenneger, Class Action Law Suit re: Prisoner medical care in California State Prison System Consultant to the Francis J. Curry, National Tuberculosis Center re: Tuberculosis Control Plan for the Jail Setting: A Template (Jail Template), Medical Expert for ACLU re Wisconsin Supermax Correctional Facility, Boscobel, WI Medical Expert for Ohio Attorney General’s Office re Ohio State Prison, Youngstown, OH Member and Surveyor, California Medical Association Corrections and Detentions Health Care Committee Medical Expert for the Office of the Special Master, Madrid vs Alameida, Federal Class Action Law Suit re: Prisoner medical care at the Pelican Bay State Prison Supermax Facility Member, Los Angeles County Department of Public Health Jail Health Services Task Force Medical Expert, Department Of Justice Investigation of Clark County Detention Center, Las Vegas, Nevada Surveyor, National Commission on Correctional Health Care,

Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 19 of 22 INS Detention Center, El Centro, CA

Work Related Committees

1/14 to present

Member, Editorial Advisory Board, Correctional Health Care

10/11 to present 5/07-10/12
12/04-3/06

Report Member, Board of Directors of the National Commission on Correctional Health Care Liaison to the CDC Advisory Council for the Elimination of Tuberculosis (ACET) from the National Commission on Correctional Health Care Member of the CDC Advisory Council for the Elimination of Tuberculosis (ACET) Ad Hoc Working Group on the Prevention

6/03-8/03

and Control of Tuberculosis in Correctional and Detention Facilities: Recommendations from CDC (MMWR 2006; 55(No. RR-9)) Member of the Advisory Panel for the Francis J. Curry National Tuberculosis Center and National Commission on Correctional Health Care, 2003: Corrections Tuberculosis Training and

3/02-1/03 6/01-Present

Education Resource Guide Member of the Advisory Committee to Develop the Tuberculosis Control Plan for the Jail Setting: A Template (Jail Template), Francis J. Curry, National Tuberculosis Center Director’s Cabinet San Francisco Department of Public Health

3/01
9/97-6/02 3/97-3/02 3/96-6/12 2/00-12/00 12/98-12/00 7/94-7/96 6/93-6/95 2/92-2/96 3/90-7/97 1/93-7/93

Consultant to Centers for Disease Control on the Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings (MMWR 2003; 52(No. RR-1)) Member, Executive Committee of Medical Practice Group, San Francisco Department of Public Health American Correctional Health Services Association Liaison with American Public Health Association Chairperson, Bay Area Corrections Committee (on tuberculosis) Medical Providers’ Subcommittee of the Office-based Opiate Treatment Program, San Francisco Department of public Health Associate Chairperson, Corrections Sub-Committee, California Tuberculosis Elimination Advisory Committee Advisory Committee for the Control And Elimination of Tuberculosis, San Francisco Department of Public Health Managed Care Clinical Implementation Committee, San Francisco Department of Public Health Tuberculosis Control Task Force, San Francisco Department of Public Health San Francisco General Hospital Blood Borne Pathogen Committee Medical Staff Bylaws Committee, San Francisco Department of Public Health

Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 20 of 22

ACADEMIC APPOINTMENT

1980-2015

Assistant Clinical Professor

University of California, San Francisco

PROFESSIONAL AFFILIATIONS Society of Correctional Physicians, Member of President’s Council, Past-Treasurer and Secretary American Correctional Health Services Association, Past-President of California Chapter American Public Health Association, Jails and Prison’s Subcommittee Academy of Correctional Health Professionals

PROFESSIONAL PRESENTATIONS Caring for the Inmate Helath Populatioin: A Public Health Imperative, Correctional Health Care Leadership Institutes, July 2015 Correctional Medicine and Community Health, Society of Correctional Physicians Annual Meeting, October, 2014 Identifying Pulmonary TB in Jails: A Roundtable Discussion, National Commission on Correctional Health Care Annual Conference, October 31, 2006 A Community Health Approach to Correctional Health Care, Society of Correctional Physicians, October 29, 2006 Prisoners the Unwanted and Underserved Population, Why Public Health Should Be in Jail, San Francisco General Hospital Medical Center, Medical Grand Rounds, 10/12/04
TB in Jail: A Contact Investigation Course, Legal and Administrative Responsibilities, Francis J. Curry National Tuberculosis Center, 10/7/04
Public Health and Correctional Medicine, American Public Health Association Annual Conference, 11/19/2003
Hepatitis in Corrections, CA/NV Chapter, American Correctional Health Services Association Annual Meeting, 1/17/02
Correctional Medicine, San Francisco General Hospital Medical Center, Medical Grand Rounds, 12/16/02
SuperMax Prisons, American Public Health Association Annual Conference, 11/8/01
Chronic Care Programs in Corrections, CA/NV Chapter, American Correctional Health Services Association Annual Meeting, 9/19/02
Tuberculosis in Corrections - Continuity of Care, California Tuberculosis Controllers Association Spring Conference, 5/12/98
HIV Care Incarcerated in Incarcerated Populations, UCSF Clinical Care of the AIDS Patient Conference, 12/5/97
Tuberculosis in Correctional Facilities, Pennsylvania AIDS Education and Training Center, 3/25/93
Tuberculosis Control in Jails, AIDS and Prison Conference, 10/15/93
The Interface of Public Health and Correctional Health Care, American Public Health Association Annual Meeting, 10/26/93

Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 21 of 22
HIV Education for Correctional Health Care Workers, American Public Health Association Annual Meeting, 10/26/93
PUBLICATIONS Structure and Administration of a Jail Medical Program – Part II. Correctional Health Care Report. Volume 16, No. 2, January-February 2015. Structure and Administration of a Jail Medical Program – Part I. Correctional Health Care Report. Volume 16, No. 1, November-December 2014. Pain Behind Bars: The Epidemiology of Pain in Older Jail Inmates in a County Jail. Journal of Palliative Medicine. 09/2014; DOI: 10.1089/jpm.2014.0160 Older jail inmates and community acute care use. Am J Public Health. 2014 Sep; 104(9):1728-33.
Correctional Health Care Must be Recognized as an Integral Part of the Public Health Sector, Sexually Transmitted Diseases, February Supplement 2009, Vol. 36, No. 2, p.S3–S4 Use of sentinel surveillance and geographic information systems to monitor trends in HIV prevalence, incidence, and related risk behavior among women undergoing syphilis screening in a jail setting. Journal of Urban Health 10/2008; 86(1):79-92. Discharge Planning and Continuity of Health Care: Findings From the San Francisco County Jail, American Journal of Public Health, 98:2182–2184, 2008 Public Health Behind Bars, Deputy Editor, Springer, 2007 Diabetes Care in the San Francisco County Jail, American Journal of Public Health, 96:1571-73, 2006 Clinical Practice in Correctional Medicine, 2nd Edition, Associate Editor, Mosby, 2006. Tuberculosis in the Correctional Facility, Mark Lobato, MD and Joe Goldenson, MD, Clinical Practice in Correctional Medicine, 2nd Edition, Mosby, 2006. Incidence of TB in inmates with latent TB infection: 5-year follow-up. American Journal of Preventive Medicine. 11/2005; 29(4):295-301.
Cancer Screening Among Jail Inmates: Frequency, Knowledge, and Willingness Am J Public Health. 2005 October; 95(10): 1781–1787 Improving tuberculosis therapy completion after jail: translation of research to practice. Health Education Research. 05/2005; 20(2):163-74. Incidence of TB in Inmates with Latent TB Infection, 5-Year Follow-up, American Journal of Preventive Medicine, 29(4), 2005
Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, Morbidity and Mortality Reports, (External Consultant to Centers for Disease Control),Vol. 52/No. RR-1 January 24, 2003
Randomized Controlled Trial of Interventions to Improve Follow-up for Latent Tuberculosis Infection After Release from Jail, Archives of Internal Medicine, 162:10441050, 2002
Jail Inmates and HIV care: provision of antiretroviral therapy and Pneumocystis carinii pneumonia prophylaxis, International Journal of STD & AIDS; 12: 380-385, 2001 Tuberculosis Prevalence in an urban jail: 1994 and 1998, International Journal of

Case 4:15-cv-00250-DCB Document 206-4 Filed 08/17/16 Page 22 of 22
Tuberculosis Lung Disease, 5(5):400-404, 2001 Screening for Tuberculosis in Jail and Clinic Follow-up after Release, American Journal of Public Health, 88(2):223-226, 1998
A Clinical Trial of a Financial Incentive to Go to the Tuberculosis Clinic for Isoniazid after Release from Jail, International Journal of Tuberculosis Lung Disease, 2(6):506512,1998
AWARDS Armond Start Award of Excellence, Society of Correctional Physicians, 2014 Award of Honor, San Francisco Board of Supervisors, 2014 Award of Honor, San Francisco Health Commission, 2014 Certificate of Appreciation, San Francisco Public Defender’s Office, 2014 Certificate for Excellence in Teaching, California Department of Health Services, 2002 Employee Recognition Award, San Francisco Health Commission, July 2000 Public Managerial Excellence Award, Certificate of Merit, San Francisco, 1997
LICENSURE AND CERTIFICATION Medical Board of California, Certificate #A32488 Fellow, Society of Correctional Physicians Board Certified in Family Practice, 1979-1986 (Currently Board Eligible)

Case 4:15-cv-00250-DCB Document 206-5 Filed 08/17/16 Page 1 of 21

1 Harold J. McElhinny* Kevin M. Coles*
2 Elizabeth G. Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: HMcElhinny@mofo.com Email: KColes@mofo.com
6 Email: EBalassone@mofo.com

7 Attorneys for Plaintiffs

8 * Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

9 Additional counsel listed on next page

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

14 Jane Doe #1; Jane Doe #2; Norlan Flores, on behalf of themselves and all others
15 similarly situated,

16 v.

Plaintiffs,

17 Jeh Johnson, Secretary, United States
18 Department of Homeland Security, in his official capacity; R. Gil Kerlikowske,
19 Commissioner, United States Customs & Border Protection, in his official capacity;
20 Michael J. Fisher, Chief of the United States Border Patrol, in his official capacity;
21 Jeffrey Self, Commander, Arizona Joint Field Command, in his official capacity;
22 Manuel Padilla, Jr., Chief Patrol AgentTucson Sector, in his official capacity,

23 Defendants.

24

Case No. 4:15-cv-00250-TUC-DCB
DECLARATION OF JOSEPH GASTON IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

25

26

27

28

DECL. OF JOSEPH GASTON ISO PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION CASE NO. 4:15-CV-00250-TUC-DCB sf-3591981

Case 4:15-cv-00250-DCB Document 206-5 Filed 08/17/16 Page 2 of 21

1 Colette Reiner Mayer* MORRISON & FOERSTER LLP
2 755 Page Mill Road Palo Alto, CA 94304-1018
3 Telephone: (650) 813-5600 Facsimile: (650) 494-0792
4 Email: CRMayer@mofo.com
5

Travis Silva* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: tsilva@lccr.com

6 Louise C. Stoupe*

Pieter S. de Ganon*

Victoria Lopez (Bar No. 330042)**

7 MORRISON & FOERSTER LLP

Daniel J. Pochoda (Bar No. 021979)

Shin-Marunouchi Building, 29th Floor

James Duff Lyall (Bar No. 330045)**

8 5-1, Marunouchi 1-Chome

ACLU FOUNDATION OF ARIZONA

Tokyo, Chiyoda-ku 100-6529, Japan

3707 North 7th Street, Suite 235

9 Telephone: +81-3-3214-6522

Phoenix, AZ 85014

Facsimile: +81-3-3214-6512

Telephone: (602) 650-1854

10 Email: LStoupe@mofo.com

Facsimile: (602) 650-1376

Email: PdeGanon@mofo.com

Email: vlopez@acluaz.org

11

Email: dpochoda@acluaz.org

Email: jlyall@acluaz.org

12 Linton Joaquin*

Karen C. Tumlin*

13 Nora A. Preciado*

NATIONAL IMMIGRATION LAW

14 CENTER

3435 Wilshire Boulevard, Suite 2850

15 Los Angeles, CA 90010

Telephone: (213) 639-3900

16 Facsimile: (213) 639-3911

Email: joaquin@nilc.org

17 Email: tumlin@nilc.org

Email: preciado@nilc.org

18

Mary Kenney*

19 Emily Creighton*

Melissa Crow*

20 AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200

21 Washington, D.C. 20005

Telephone: (202) 507-7512

22 Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org

23 Email: ecreighton@immcouncil.org

Email: mcrow@immcouncil.org

24

Attorneys for Plaintiffs

25

* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

26 ** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

27

28

DECL. OF JOSEPH GASTON ISO PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION CASE NO. 4:15-CV-00250-TUC-DCB sf-3591981

Case 4:15-cv-00250-DCB Document 206-5 Filed 08/17/16 Page 3 of 21

1 I, JOSEPH GASTON, hereby declare:

2

1. I am an eDiscovery Analyst at the law firm of Morrison & Foerster LLP and

3 counsel of record for Plaintiffs in this litigation. I have personal knowledge of the facts

4 stated herein and, if called as a witness, could and would competently testify thereto.

5

2. I have been employed at Morrison & Foerster LLP since October 2012. In

6 my role, I regularly perform data analysis on projects within the Litigation Department.

7 Prior to my position at Morrison & Foerster LLP, I was a data analyst at SFL Data (now

8 Discovia) and the law firm of Coblentz, Patch, Duffy, & Bass LLP.

9 I. 10

INTRODUCTION 3. I was asked by Plaintiffs’ counsel to analyze data produced by Defendants

11 in a native Excel spreadsheet, Bates stamped as USA000653, titled “USBP e3 Detention

12 Module Fields for Apprehensions Booked Into TCA Facilities, Booked in 6/10/15 -

13 9/28/15, Data includes Deportable Aliens Only, Data Source: EID (Unofficial) as of

14 10/7/15” (the “e3DM Spreadsheet”). I understand that the spreadsheet purports to be a

15 production of data from Defendants’ logging system “e3DM,” that includes various data

16 points for civil detainees held in a U.S. Customs and Border Protection facility within the

17 Tucson Sector of the U.S. Border Patrol booked from June 10, 2015 to September 28,

18 2015 (the “Relevant Time Period”). This spreadsheet contains nearly half a million rows

19 of records.

20

4. The e3DM spreadsheet title indicates that it pertains to “Deportable Aliens

21 Only.” I understand that Defendants did not provide any explanation why records

22 associated with all other detainees, including U.S. citizens, were omitted.

23

5. I also reviewed the document produced by Defendants, Bates stamped as

24 USA000654-665 with the heading “Statistical Information – Information Redacted From 25 USA000653 Pursuant to 8 U.S.C. 1367” (the “e3DM Supplement”).1 I understand this

26

27

1 All exhibit references in this declaration are to an Appendix of Exhibits In

Support of Plaintiffs’ Motion for Preliminary Injunction.

28

DECL. OF JOSEPH GASTON ISO PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION

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1 spreadsheet purports to be a supplemental production of data from Defendants’ e3DM

2 logging system, which omits certain information Defendants allege to be protected from

3 disclosure under federal law.

4

6. I reviewed the document produced by Defendants, in conjunction with the

5 production of this spreadsheet, titled “e3 Detention Module Custodial Action Codes,”

6 Exhibit 96, that provides “Action Descriptions” for the “Action Codes” in the e3DM

7 Spreadsheet.

8

7. I reviewed the document produced by Defendants, Exhibit 119, that defines

9 the column headings in the e3DM Spreadsheet.

10

8. I also reviewed another document produced by Defendants, Exhibit 192 at

11 USA002184, titled “Station Abbreviations,” that explains the abbreviations for each

12 facility listed in the “Station” column of the e3DM Spreadsheet.

13

9. I am informed that, although there are more than two dozen different

14 facilities indicated in the “Station Abbreviations” column, this lawsuit specifically

15 challenges conditions at facilities within the Tucson Sector of the U.S. Border Patrol: Ajo,

16 Brian A. Terry, Casa Grande, Douglas, Nogales, Sonoita, Tucson/TCC, and Willcox

17 stations (collectively, the “Tucson Sector Stations”).

18

10. I understand that Defendants also produced a native Excel spreadsheet,

19 Bates stamped USA000699 with the heading “USBP e3 Detention Module Detention Cell,

20 Booked in 6/10/15 – 9/28/15” (the “EID Spreadsheet”). I understand this information

21 purports to be a production of data from Defendants’ “Enforcement Integrated Database”

22 (“EID”), a Department of Homeland Security shared common database repository in

23 which information related to the investigation, arrest, booking, detention, and removal of

24 individuals encountered by U.S. Customs and Border Protection is maintained. I

25 understand that the spreadsheet produced contains information regarding the last known

26 holding cell in which individuals are detained while in Border Patrol custody.

27

28

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1

11. I also understand that Defendants did not preserve comprehensive records

2 regarding other Hold Rooms in which each detainee was held. It was therefore impossible

3 to calculate from the data how many detainees were in any given Hold Room at one time.

4

12. The e3DM Spreadsheet, e3DM Supplement and EID Spreadsheet are

5 voluminous and would likely span hundreds of thousands of pages if printed. I

6 understand the spreadsheets were produced by Defendants and thus my analysis of the

7 data contained in those spreadsheets can easily be verified by Defendants by reviewing

8 the documents already in their possession.

9 II. 10

e3DM SPREADSHEET ANALYSIS 13. As explained below, my initial quality control work for the e3DM

11 Spreadsheet and e3DM Supplement resulted in 277,009 unique log entries and 17,006

12 unique Alien file Numbers, for individuals held in a U.S. Customs and Border Protection

13 facility within the Tucson Sector of the U.S. Border Patrol during the Relevant Time

14 Period (June 10, 2015 to September 28, 2015). Each of these 17,006 unique individuals

15 were booked into at least one of the 8 “Tucson Sector Stations” (defined as Tucson/TCC,

16 Casa Grande, Douglas, Nogales, Willcox, Sonoita, Ajo and Brian A. Terry (Naco)

17 stations). Defendants withheld most of the data associated with 14 of these 17,006

18 detainees on the basis that federal law protects these records from disclosure. For

19 instance, the data produced does not indicate one way or the other whether these 14

20 individuals were provided meals, mats, personal hygiene items or other supplies.

21 Therefore, much of my analysis below reflects only the 16,992 individuals for whom full

22 records were produced.

23

14. The analysis below reflects only records from the Relevant Time Period.

24

A. Sector-Wide Analysis

25

15. I performed the following analysis of the e3DM Spreadsheet data across the

26 Tucson Sector of the U.S. Border Patrol.

27

16. I observed, however, that the e3DM Spreadsheet included some rows of

28 data related to facilities outside of the Tucson Sector of the U.S. Border Patrol.

DECL. OF JOSEPH GASTON ISO PLAINTIFFS’ MOT. FOR PRELIMINARY INJUNCTION

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1

17. Based on my review of the e3DM Spreadsheet, the rows of data relating to

2 facilities outside of the Tucson Sector appeared to be associated with individuals who

3 were held at facilities both inside and outside of the Tucson Sector of the U.S. Border

4 Patrol during the course of their detention(s).

5

18. I used the “Station Abbreviations” provided in the “Station” column of each

6 row of data to determine there were 24,046 rows related to facilities outside of the Tucson

7 Sector of the U.S. Border Patrol. That is 8.681% of the 277,009 unique log entries. In

8 addition to the 8 relevant Border Patrol stations, the e3DM spreadsheet also included

9 records from Border Patrol stations from other Border Patrol Sectors as far away as

10 Louisiana. These stations included Baton Rouge, Calexico, Del Rio, Eagle Pass, El

11 Centro, Falfurrias, Kingsville, Lordsburg, McAllen, Three Points, Yuma, and Welton

12 Stations. Records were also included from various Border Patrol checkpoints and points

13 of entry, both in and out of the Tucson Sector geographical area. Upon analysis of the

14 e3DM data, it was determined that records from these facilities outside of Border Patrol’s

15 Tucson Sector were invariably related to detainees who at some point during their time in

16 CBP custody, were brought to one of the 8 relevant Border Patrol stations.

17

19. The sector-wide analysis of various time periods detailed below

18 incorporates these out-of-sector records. For example, according to the e3DM data

19 produced by Defendants, starting on September 1, 2015, one detainee was held for 7.783

20 hours in the El Centro Station (which I am informed and believe to be located in

21 California), then moved to the Del Rio Station (which I am informed and believe to be

22 located in Texas) for 10.25 more hours of holding, then moved to the Tucson Sector

23 Tucson Coordination Center for 20.8 more hours of holding. My Sector-wide analysis

24 would reflect that this detainee was held in CBP custody for a total of 38.833 hours.

25

i. Hours in Detention

26

20. The following table represents the number of detainees held in CBP custody

27 during the Relevant Time Period for more than the various numbers of hours listed in the

28

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1 first column, as well as the corresponding percentages relating to the total number of

2 unique individuals held in CBP Custody during the same Relevant Time Period:

3

4

Table 1

Time in Detention Number of Detainees Percentage of 17,006 Total

5

Detainees

6

12 hours or more 14,021

82.447%

7

24 hours or more 6,541

38.463%

8

36 hours or more 2,841

16.706%

9

48 hours or more 1,064

6.257%

10

72 hours or more 157

0.9%

11

12

21. The figures in Table 1 were calculated from the difference between the

13 timestamp of the initial “In_BP_Station” action code and the final “Book_Out_DT”

14 timestamp for a specific detainee, and the corresponding “EVENT_NUMBER” value

15 reported. These detainee-specific timestamps and the associated “EVENT_NUMBER”

16 are analyzed to calculate length of detainment time, and the resulting value is defined as a

17 single “Detainment Event.” Individuals held in CBP custody more than once for each of

18 the various numbers of hours listed in the first column are only counted once when

19 calculating the respective percentages in the third column.

20

22. I observed that a significant number of individuals were recorded to have

21 been in CBP custody on more than one occasion during the Relevant Time Period. While

22 only 17,006 individuals were detained during this period, there were 20,145 “Detainment

23 Events,” associated with those individuals. The reason for the higher number of

24 Detainment Events is not clear from the e3DM spreadsheet. These individuals could have

25 been apprehended more than once, or transferred to and from different U.S. government

26 agencies before returning to CBP custody. Table 1 does not reflect the fact that some

27 individuals are associated with multiple Detainment Events. Table 1.1, however, does

28

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1 reflect the number of “Detainment Events” where any individual was detained for the

2 various number of hours listed in the first column:

3

Table 1.1

4

Time in Detention Number of

Percentage of 20,145 Total

5

Detainment Events Detainment Events

6

12 hours or more 15,782

78.342%

7

24 hours or more 6,881

34.157%

8

36 hours or more 2,891

14.351%

9

48 hours or more 1,069

5.307%

10

72 hours or more 157

0.779%

11

12

23. Table 1.1 reflects the number of hours each detainee was held on every

13 occasion of detainment. For example, if a detainee were confined for 12 hours, released,

14 then subsequently apprehended and detained for another 12 hours, Table 1 would only

15 count that detainee once, in the “12 hours or more” category. Table 1.1 would instead

16 count two Detainment Events, each under the category of “12 hours or more.” Thus,

17 Table 1.1 more accurately reflects the hours of confinement a detainee is held on each

18 occasion under CBP custody.

19

24. The difference between Table 1 and Table 1.1 also indicates that within the

20 Relevant Time Period detainees were held more than once on over 3000 occasions. This

21 indicates that a significant number of detainees experience the hold rooms more than

22 once.

23

ii. Provision of Sleeping Mats

24

25. For all detainees held in U.S. Border Patrol custody over this time period,

25 there are only 122 detainees who reportedly received a sleeping mat. That is 0.7% out of

26 the 16,992 unique Alien file Numbers identified in the e3DM Spreadsheet.

27

26. To calculate this figure, I searched for any occurrence in the

28 “DA_COMMENT_TEXT” column of terms related to sleeping mats: “bed,” “foam” or

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1 “mat” (with an exclusion for “mat wit,” which I observed meant “material witness”). I

2 isolated those results and expunged the irrelevant hits to form a preliminary list of records

3 indicating that a mat had been provided. I then did a visual check of the rows not isolated

4 in my initial search with “DA_COMMENT_TEXT” entries for any other notes or remarks

5 which might indicate that a mat had been provided and added any relevant records to the

6 preliminary list.

7

iii. Provision of Showers

8

27. For all detainees held in U.S. Border Patrol custody over this time period,

9 there are only 115 detainees who reportedly received a shower. That is 0. 677% of the

10 16,992 total number of individuals identified from the e3DM Spreadsheet.

11

28. To calculate this figure, I searched for any occurrence in the

12 “DA_COMMENT_TEXT” column for the term “shower.” Following that text search, I

13 also did a visual search for any other text related to showers on the remaining rows.

14

29. I also searched for any occurrence of the “SHWRP” action code (defined as

15 “Shower Provided”).

16

iv. Provision of Dental Care Supplies

17

30. For all detainees held in U.S. Border Patrol custody over this time period,

18 there are only 1,642 detainees who reportedly received provision of some dental care

19 supplies, including toothbrush or toothpaste. That is 9.663% out of the 16,992 unique

20 Alien file Numbers identified from the e3DM Spreadsheet.

21

31. To calculate this figure, I searched for any occurrence in the

22 “DA_COMMENT_TEXT” column of terms related to dental care: “tooth,” “teeth,” or

23 “brush.” Following that text search, I also did a visual search for any other text related to

24 dental care on the remaining rows.

25

v. Provision of Feminine Hygiene Supplies

26

32. For all detainees held in U.S. Border Patrol custody over this time period,

27 there are only 93 detainees who reportedly received toilet paper or feminine hygiene

28

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1 supplies. That is 0.5473% of the 16,992 unique Alien file Numbers identified from the

2 e3DM Spreadsheet.

3

33. To calculate this figure, I searched for any occurrence in the

4 “DA_COMMENT_TEXT” column of terms related to toilet paper or feminine hygiene

5 supplies: “toilet paper,” “feminine hygiene products,” “feminine products,” “maxi pad,”

6 “pad,” and “pads.” Following that text search, I also did a visual search for any other text

7 related to toilet paper or feminine hygiene supplies on the remaining rows.

8

34. Regarding the provision of feminine hygiene supplies, I was not able to run

9 analysis of the data limited by gender because the e3DM Spreadsheet does not have

10 adequate data to determine the gender of any detainee.

11

vi. Provision of Baby Supplies

12

35. For all detainees held in U.S. Border Patrol custody over this time period,

13 there are only 208 detainees who reportedly received baby supplies. I calculated that

14 there were 372 infants under the age of three held in U.S. Border Patrol custody over this

15 time period.

16

36. To calculate the number of detainees who reportedly received baby supplies,

17 I searched for any occurrence in the “DA_COMMENT_TEXT” column of terms related

18 to baby supplies: “bottle,” “diaper,” “diapers,” “formula,” and “gerber,” and “nido.”

19 Following that text search, I also did a visual search for any other text related to baby

20 supplies on the remaining rows.

21

37. To calculate the number of infants held in U.S. Border Patrol custody over

22 this time period, I searched for individual detainees where the difference in their

23 “BIRTH_DT” (birth date) was three years or less from the timestamp of the initial

24 “In_BP_Station” action code.

25

vii. Provision of Food

26

a. Gap Time Between Food Offerings

27

38. For all detainees held in U.S. Border Patrol custody over this time period,

28 the average gap time between reported food offerings to detainees was 5.056 hours.

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1

39. In calculating these figures, I considered both the “MLACC” action code

2 (described as “Served meal(Accepted)”) and “MLREF” action code (described as “Served

3 meal(Refused)”) as an incident of a detainee being offered food.

4

40. I also observed that there were occurrences in the

5 “DA_COMMENT_TEXT” where a detainee may have been offered food but those

6 occurrences were not logged with an “MLACC” or “MLREF” action code.

7

41. I searched for any occurrence in the “DA_COMMENT_TEXT” column of

8 terms related to food: “food,” “meal,” “breakfast,” “lunch,” “dinner,” “eat,” “eating,”

9 “bean,” “cheese,” “milk,” “drink,” “drinking,” “ate,” “water,” “juice,” “formula,”

10 “gerber,” “nido,” “pedialyte,” “electrolyte,” “snack,” “soup,” “burrito,” “burro,” “animal

11 crackers,” and “crackers.”

12

42. My search resulted in 2,168 occurrences. For example, “subject has blanket

13 and snack requires nothing further at this time.” For the purposes of this analysis, I

14 counted these log entries as an incident of a detainee being offered food.

15

43. Accordingly, the average gap time between food was calculated either from

16 1) the difference between the timestamps of an “MLACC” action code (described as

17 “Served meal(Accepted)”), an “MLREF” action code (described as “Served

18 meal(Refused)”), or occurrences in the “DA_COMMENT_TEXT” field as described

19 above; 2) the difference between the timestamps of an “MLACC” or “MLREF” action

20 code or food-related occurrence appearing in the “DA_COMMENT_TEXT” and a final

21 book out timestamp where no subsequent “MLACC” or “MLREF” action code or food-

22 related “DA_COMMENT_TEXT” appeared; or 3) the difference between the initial book

23 in timestamp and an initial “MLACC” or “MLREF” action code or food-related

24 occurrence appearing in the “DA_COMMENT_TEXT” field.

25

44. My analysis indicated that there were 6,719 instances of a gap extending 12

26 or more hours without an individual being offered food of any kind.

27

28

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1

45. There were 4,474 instances of such a gap extending 15 or more hours; 2,425

2 instances of such a gap extending 20 or more hours; and 1,400 instances of such a gap

3 extending 24 or more hours.

4

b. Gap Time Between Meals (Burrito)

5

46. For the Tucson Sector Stations, the vast majority of the 87,712 results from

6 the food-related term search of the “DA_COMMENT_TEXT” column hit on terms

7 related to three types of food: burritos, juice, and crackers.

8

47. In order to isolate the incidents where a detainee was offered a burrito, I

9 searched for any occurrence in the “DA_COMMENT_TEXT” column of terms related to

10 burrito: “burrito,” “burritos,” and “burro.”

11

48. For all detainees held in U.S. Border Patrol custody during the Relevant

12 Time Period, there were 52,382 instances logged, where a meal (burrito) was offered.

13

49. For all detainees held in U.S. Border Patrol custody during the Relevant

14 Time Period, the average gap time between burritos reportedly offered to detainees was

15 7.336 hours.

16

50. The e3DM data produced by Defendants does not appear to reflect whether

17 meals were offered upon arrest or during times of transport between different facilities.

18 To my knowledge, Defendants have not produced any policies or procedures regarding

19 the provision of meals during transit or between time of arrest and initial book in at a

20 Border Patrol station.

21

viii. Provision of Medical Screening

22

51. For all detainees held in U.S. Border Patrol custody over this time period, I

23 did not identify any medical screening reportedly performed on a detainee.

24

52. I did not observe any columns or action codes with definitions related to

25 medical screening, either in the e3DM Spreadsheet itself or in the list of explanations,

26 Exhibit 119. I searched for any occurrence in the “DA_COMMENT_TEXT” column of

27 terms related to medical screening: “doctor”, “emergency”, “medical eval”, “medical

28 screen”, “medical test”, “medic”, “hospital”, “observation” and “ER”. Following that text

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1 search, I also did a visual search for any other text related to baby supplies on the

2 remaining rows.

3

53. That search did not result in any hits for medical screening.

4

ix. Provision of Medical Treatment

5

54. For all detainees held in U.S. Border Patrol custody over this time period, in

6 one of the eight facilities in the Tucson sector described above, I identified 527 incidents

7 of medical treatment reportedly provided to a detainee.

8

55. I did not observe any columns or action codes with definitions related to

9 medical treatment. Next, I searched for any occurrence in the “DA_COMMENT_TEXT”

10 column of terms related to medical treatment: “complained”, “complaining”, “EMT”,

11 “headache”, “health”, “injured”, “medication”, “medicine”, “meds”, “pain”, “pills”,

12 “prescribed”, “treated”, “treatment”. Following that text search, I also did a visual search

13 for any other text related to medical treatment on the remaining rows.

14

B. Station-by-Station Analysis

15

56. I performed the following analysis of the e3DM Spreadsheet data for each

16 of the Tucson Sector Stations.

17

i. Provision of Sleeping Mats

18

57. The following table represents the number of detainees held in one of the

19 Tucson Sector facilities who reportedly received a sleeping mat, compared to the total

20 number of individuals identified from the e3DM Spreadsheet detained in each of these

21 facilities over this time period:

22 Table 2 23 Facility
24
25 Casa Grande 26 Douglas 27 Tucson Sector Tucson
Coordinating Center 28

Number of Detainees Provided Mats 3
84
35

Number of Total Detainees
1,700 3,909 18,087

Percentage
0.176% 2.149% 0.194%

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1

58. To calculate this figure, I searched for any occurrence in the

2 “DA_COMMENT_TEXT” column of terms related to sleeping mats: “bed,” “foam,” or

3 “mat” (with an exclusion for “mat wit”). Following that text search, I also did a visual

4 search for any other text related to sleeping mats on the remaining rows.

5

59. Three facilities—Douglas, Nogales and Tucson Sector Tucson Coordinating

6 Center —yielded results from these searches.

7

ii. Provision of Showers

8

60. The following table represents the number of detainees held in one of the

9 Tucson Sector Stations who reportedly received a shower, compared to the total number

10 of individuals identified from the e3DM Spreadsheet detained in each of these facilities

11 over this time period:

12

13 Table 3 Facility
14
15

Number of

Number of Total

Detainees Provided Detainees

Shower

16 Casa Grande

20

1,700

17 Douglas

1

3,909

18 Nogales

2

19

Tucson Sector Tucson Coordinating Center

92

4,457 18,087

Percentage
1.176% 0.026% 0.045% 0.509%

20

21

61. To calculate this figure, I searched for any occurrence in the

22 “DA_COMMENT_TEXT” column for the term “shower.” Following that text search, I

23 also did a visual search for any other text related to showers on the remaining rows.

24

62. I also searched for any occurrence of the “SHWRP” action code (described

25 as “Shower Provided”).

26

63. Four facilities—Casa Grande, Douglas, Nogales and Tucson Sector Tucson

27 Coordinating Center —yielded results from these searches.

28

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1

64. Of the 115 instances where subjects were provided a shower, 74 were in

2 CBP custody for at least 24 hours, 41 were in CBP custody for at least 48 hours, and 4

3 were in CBP custody for at least 72 hours. Based on a comparison with a table of

4 common Hispanic women’s names, 15 were possibly females. Seven were juveniles.

5

65. To calculate the number of juveniles held in one of the Tucson Sector

6 Stations this time period, I searched for individual detainees where the difference in their

7 “BIRTH_DT” (birth date) was thirteen years or less from the timestamp of the

8 corresponding “SHWRP” action code, or timestamp of a shower-related occurrence

9 appearing in the “DA_COMMENT_TEXT” field.

10

66. My analysis of the provision of showers suggested that at least some of the

11 e3DM data produced by Defendants is unreliable. For example, I understand that, during

12 Plaintiffs’ inspection of the Casa Grande station on September 9, 2015, CBP informed

13 Plaintiffs’ counsel that there were no shower facilities at Casa Grande. However, the

14 e3DM spreadsheet shows that, between June 10 and September 28, 2015, 20 showers

15 were provided at that facility. Upon closer examination, it appears that 19 of those

16 20 showers were provided at midnight on August 4, 2015. The 20th shower was provided

17 at 4:15 a.m. that same day. These factors indicate that the 20 records may be incorrect.

18

67. Regarding the provision of showers, specifically to female subjects, I was

19 not able to run analysis of the data limited by gender because the e3DM Spreadsheet does

20 not have adequate data to determine the gender of any detainee.

21

iii. Provision of Food

22

68. The following table represents the average gap time between meals

23 reportedly offered to detainees in one of the Tucson Sector Stations over this

24 time period:

25

26

27

28

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1 Table 4
2 Facility
3
4 Ajo Brian A. Terry
5 Casa Grande
6 Douglas
7 Nogales
8 Sonoita
9 Tucson Sector Tucson 10 Coordinating Center
11 Willcox

Meals Offered 676 1,245 2,715 5,519 2,193 456
39,352 226

Meals Accepted
670 1,206
2,690 5,468 2,165 456

Meals Declined
6 39
25 51 28 0

Average Meal Gap Time
3.355 5.127
3.855 5.886 2.959 2.211

39,231

121

216

10

8.239 4.130

12

13

69. These figures were calculated in the same manner as described in Section

14 viii above, but at the station-by-station level.

15 III. EID SPREADSHEET ANALYSIS

16

70. I understand that the EID Spreadsheet (USA000699) includes records of the

17 last known holding cell at each facility in which detainees were housed during the

18 Relevant Time Period. I also understand that records regarding any prior cells in which

19 detainees were held has not been preserved.

20

71. The EID Spreadsheet produced by Defendants does not include any data

21 regarding the specific dates during which individuals were held in the holding cells listed.

22

72. I was asked to calculate the number of detainees at Casa Grande Station

23 during the Relevant Time Period who were last held in Cell 6. By filtering the

24 “DC_Station column” for “CAG_S” and the “DCL_CELL_NM” column for any field

25 containing the text “Cell 6,” I calculated that no fewer than 34 individuals were last held

26 in Cell 6 during the Relevant Time Period:

27

28

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1

Table 5

2

DC_STATION DCL_CELL_NM Detainee Count

3

CAG_S

Cell 6

22

4

CAG_S CAG_S

Cell 6_1507 Cell 6_4778

3 9

5

6 IV. METHODOLOGY

7

A. e3DM Spreadsheet

8

73. Upon my initial review of the e3DM Spreadsheet, I observed that the

9 document contained 498,387 rows of data, with an associated date range of October 6,

10 2014 to October 7, 2015. As explained below and based on my review, it is my

11 understanding that each row purports to represent a discrete event logged for a detainee

12 held in BP custody.

13

74. I implemented a variety of quality control measures before performing

14 analysis on the data. I discovered that a significant number of rows in the e3DM

15 Spreadsheet were duplicates of other rows. To remove the duplicate rows, I engaged in

16 the following process: First, I sorted the rows into chronological order. Then, I used a

17 text editing program to locate rows that contained identical information in the first twenty-

18 five columns of the e3DM Spreadsheet. Once identified, I removed those duplicate rows.

19

75. I also observed that the e3DM Spreadsheet included rows that were outside

20 of the Relevant Time Period. I observed that records outside the Relevant Time Period

21 invariably pertained to individuals who were also detained at some point during the

22 Relevant Time Period. When I searched the number of records on each day outside the

23 Relevant Time Period, I found that these records were dramatically fewer than the records

24 for each day inside the Relevant Time Period. I understand that Defendants were only

25 ordered to produce e3DM data for detainees held during the Relevant Time Period.

26 Considering all these factors, I concluded that the data from outside the Relevant Time

27 period was not comprehensive (i.e., the majority of records from those dates had been

28 omitted from the e3DM Spreadsheet produced by Defendants). Because the records

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1 outside the Relevant Time Period appeared largely incomplete and unreliable for

2 statistical analysis, I applied a date filter to include only rows with an associated date

3 range of June 10, 2015 to September 28, 2015 (the Relevant Time Period). I created this

4 filter based on the data in the “Action_DT” (action date) and “Book_Out_DT” (book out

5 date) columns.

6

76. After deduplication and date filtering, there were 277,009 rows of data in

7 the e3DM Spreadsheet.

8

77. Because each row purports to represent a discrete event logged for a

9 detainee, I then searched for all unique “ALIEN_FILD-NBRs” (defined as Alien file

10 Numbers) to attempt to determine the number of individuals captured in the e3DM and

11 e3DM Supplemental Spreadsheets. That search resulted in 17,006 unique Alien file

12 Numbers. This number includes the 14 anonymous individuals who were listed in the

13 Supplemental e3DM Spreadsheet (Ex. 97) and whose records were largely withheld.

14

78. In performing my analysis on this data, I observed a common workflow for

15 processing detainees that included rows logging the following events listed in the

16 “Actions” column of the e3DM Spreadsheet:

17

• “Arrest”

18

• “In_BP_Station” – when detainee arrived at Border Patrol station

19

• “In_Transit” – if detainee was transported from one station to another

20

• “In_BP_Station” – following any “In_Transit” action code

21

• Custodial action codes while a detainee was in a facility, including:

22

o “MLACC” – served meal, accepted

23

o “MLREF” – served meal, accepted

24

o “SHWRP” – shower provided

25

79. In my review of the e3DM Spreadsheet, I did not observe unique rows that

26 contained data logging the date and time a detainee was booked out of Border Patrol

27 custody (“Book_Out_DT”). Instead, the “Book_Out_DT” information was somehow

28

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1 entered into a field in a subsequent column of the row logging the “In_BP_Station” action

2 code.

3

B. Supplemental e3DM Spreadsheet

4

80. I implemented the same quality control measures for the Statistical

5 Information – Information Redacted from USA000653 Pursuant to 8 U.S.C. 1367

6 spreadsheet (“supplemental e3DM Spreadsheet”).

7

81. Upon my initial review of the supplemental spreadsheet, I observed that the

8 document contained 402 rows of data.

9

82. I deduplicated the rows by sorting them into chronological order and used a

10 text editing program to locate rows that contained identical information in the first twenty-

11 five columns of the supplemental spreadsheet.

12

83. I also applied a date filter to include only rows with an associated date range

13 of June 10, 2015 to September 28, 2015.

14

84. After deduplication and date filtering, there were 216 rows of data in the

15 supplemental spreadsheet.

16

85. I also identified 14 unique Alien file numbers, suggesting that the 216

17 records pertained to 14 different individuals.

18 V. ADDITIONAL DOCUMENTS RELIED UPON

19

86. Exhibit 78 is a true and correct copy of a document produced by Defendants

20 on or about August 24, 2015, Bates labeled USA000001-004, which purports to be a list

21 of all logs required to be produced under the Court’s August 14, 2004 Order. The

22 document provides a description of Defendants’ Enforcement Integrated Database (EID),

23 the e3 application through which Border Patrol records information specific to individual

24 detainees, and the e3DM Detention Module, which “maintains information related to

25 individuals who are detained in BP custody.” (Ex. 78 at USA000003.)

26

87. Exhibit 82 is a true and correct copy of a document produced by Defendants

27 on or about September 4, 2015, Bates labeled USA000119-122, which purports to be a

28 CBP Memorandum dated September 24, 2012 with the subject heading: “Use of the e3

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1 Detention Module,” which requires as of October 1, 2012 that “usage of the e3 Detention

2 Module (e3DM) by all field elements will be mandatory for all transfers out of U.S.

3 Border Patrol custody and inter-sector/station transfers.” (Ex. 82 at USA000121.) The

4 memorandum also states that “Due to the importance that Congress, DHS and CBP place

5 on the integrity of data returned from all information technology systems, it is imperative

6 that all data be as complete and accurate as possible” and requires “each sector will

7 establish local protocols for using the module[.]” (Id.)

8

88. Exhibit 86 is a true and correct copy of a document produced by Defendants

9 on or about September 4, 2015, Bates labeled USA000321, which purports to be a CBP

10 Memorandum dated October 8, 2013 with subject heading “Use of the Updated e3

11 Detention Module,” which states that “all Chief Patrol Agents will ensure that the updated

12 e3DM is used to the fullest extent to capture the custodial actions and transportation for

13 all detainees.” (Ex. 86 at USA000321.)

14

89. Exhibit 193 is a true and correct copy of a letter dated October 16, 2015

15 from Plaintiffs’ counsel requesting that Defendants “produce the manual or instructions

16 for inputting and storing [e3DM] data through the e3 application and e3DM module so

17 that [Plaintiffs] can understand how Border Patrol creates and maintains these records,

18 and the nature of the data reflected in those records.” (Ex. 193 at 1.)

19

90. Exhibit 194 is a true and correct copy of a letter dated October 23, 2015,

20 received by Plaintiffs’ counsel, wherein Defendants “decline to produce those additional

21 materials, if any exist” in reference to the e3DM manual or instructions requested in

22 Exhibit 193. (Ex. 194 at 1.)

23

91. Exhibit 96 is a true and correct copy of a document produced by Defendants

24 on or about October 9, 2015, Bates labeled USA00652, entitled “e3 Detention Module

25 Custodial Action Codes,” which purports to explain “Action Codes” appearing in

26 Defendant’s e3DM data. (Ex. 96.)

27

92. Exhibit 97 is a true and correct copy of a document produced by Defendants

28 on or about October 12, 2015, Bates labeled USA000654-665 and entitled “Statistical

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1 Information - Information Redacted From USA000653 Pursuant to 8 U.S.C. 1367,"

2 which purports to include partial detainee records that were omitted from Defendants'

3 original production of e3DM data. (Ex 97 at USA000654.)

4

93. Exhibit 119 is a true and correct copy ofBates labeled USA002184-2186

5 produced by Defendants on or about November 6, 2015 and purports to provide

6 descriptions of column headings in the e3DM data spreadsheet, USA00653. This

7 document was previously produced, Bates labeled USA00700-020.

8

94. Exhibit192 at USA002184, on November 13, 2015, Defendants produced a

9 second document Bates labeled USA002184, which purports to explain station

10 abbreviations in the e3DM data spreadsheet (USA000653).

11

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing

12 is true and correct.

13

Executed this 4th day ofDecember, 2015.

14
/
15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 Harold J. McElhinny* Kevin M. Coles*
2 Elizabeth G. Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: HMcElhinny@mofo.com Email: KColes@mofo.com
6 Email: EBalassone@mofo.com

7 Attorneys for Plaintiffs

8 * Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

9 Additional counsel listed on next page

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

14 Jane Doe # 1; Jane Doe # 2; Norlan Flores, on behalf of themselves and all others
15 similarly situated,

16 v.

Plaintiffs,

17 Jeh Johnson, Secretary, United States
18 Department of Homeland Security, in his official capacity; R. Gil Kerlikowske,
19 Commissioner, United States Customs & Border Protection, in his official capacity;
20 Michael J. Fisher, Chief of the United States Border Patrol, in his official capacity;
21 Jeffrey Self, Commander, Arizona Joint Field Command, in his official capacity;
22 Manuel Padilla, Jr., Chief Patrol AgentTucson Sector, in his official capacity,

23 Defendants.

24

Case No. 4:15-cv-00250-TUC-DCB
DECLARATION OF KEVIN M. COLES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
PARTIALLY REDACTED

25

26

27

28

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1 Colette Reiner Mayer* MORRISON & FOERSTER LLP
2 755 Page Mill Road Palo Alto, CA 94304-1018
3 Telephone: (650) 813-5600 Facsimile: (650) 494-0792
4 Email: CRMayer@mofo.com
5

Travis Silva* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: tsilva@lccr.com

6 Louise C. Stoupe*

Pieter S. de Ganon*

Victoria Lopez (Bar No. 330042)**

7 MORRISON & FOERSTER LLP

Daniel J. Pochoda (Bar No. 021979)

Shin-Marunouchi Building, 29th Floor

James Duff Lyall (Bar No. 330045)**

8 5-1, Marunouchi 1-Chome

ACLU FOUNDATION OF ARIZONA

Tokyo, Chiyoda-ku 100-6529, Japan

3707 North 7th Street, Suite 235

9 Telephone: +81-3-3214-6522

Phoenix, AZ 85014

Facsimile: +81-3-3214-6512

Telephone: (602) 650-1854

10 Email: LStoupe@mofo.com

Facsimile: (602) 650-1376

Email: PdeGanon@mofo.com

Email: vlopez@acluaz.org

11

Email: dpochoda@acluaz.org

Email: jlyall@acluaz.org

12 Linton Joaquin*

Karen C. Tumlin*

13 Nora A. Preciado*

NATIONAL IMMIGRATION LAW

14 CENTER

3435 Wilshire Boulevard, Suite 2850

15 Los Angeles, CA 90010

Telephone: (213) 639-3900

16 Facsimile: (213) 639-3911

Email: joaquin@nilc.org

17 Email: tumlin@nilc.org

Email: preciado@nilc.org

18

Mary Kenney*

19 Emily Creighton*

Melissa Crow*

20 AMERICAN IMMIGRATION COUNCIL

1331 G Street NW, Suite 200

21 Washington, D.C. 20005

Telephone: (202) 507-7512

22 Facsimile: (202) 742-5619

Email: mkenney@immcouncil.org

23 Email: ecreighton@immcouncil.org

Email: mcrow@immcouncil.org

24

Attorneys for Plaintiffs

25

* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

26 ** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

27

28

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1 I, KEVIN M. COLES, hereby declare:

2

1. I am a member of the bar of the State of California, an associate in the law

3 firm of Morrison & Foerster LLP and counsel of record for Plaintiffs in this litigation. I

4 have personal knowledge of the facts stated herein and, if called as a witness, could and

5 would competently testify thereto.

6

2. I am managing the review of the video surveillance footage and documents

7 produced by Defendants in this litigation and have participated in most or all of the

8 corresponding meet and confer discussions with Defendants’ counsel.

9 I. 10

SURVEILLANCE VIDEO PRODUCTIONS 3. On September 28, 2015, the Court ordered Defendants to produce “all

11 existing video recordings, dating from June 10, 2015 through current, for each Border

12 Patrol station in the Tucson sector” within 15 days of the order being filed. (ECF No. 64.)

13

4. Due to Defendants’ representations regarding the technical impossibility of

14 producing all video by the Court’s deadline, the parties stipulated to a revised timeline

15 allowing for rolling productions of video from Willcox, Naco and Nogales stations. (See

16 generally, ECF No. 66-2.) Defendants’ counsel also represented to Plaintiffs’ counsel that

17 no surveillance video from Ajo station existed because the system was entirely offline.

18

5. On or about October 14, 2015, Plaintiffs received Defendants’ first video

19 surveillance production (produced via UPS on October 13). Included in the productions

20 were a total of 24 external hard drives (4 from Tucson, 4 from Casa Grande, 4 from

21 Douglas, 11 from Nogales, and 1 from Sonoita). I understand this production included

22 more than 42 terabytes of data. This production also included video playback software

23 licenses for viewing some of the video produced from Tucson station.

24

6. On or about October 19, 2015, Plaintiffs received a second production of 9

25 external hard drives, including 8 from Brian A. Terry and 1 from Willcox (produced via

26 UPS on October 15). I understand that this production included more than 19 terabytes of

27 data.

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1

7. On or about October 30, 2015, Plaintiffs received a third production of 12

2 external hard drives (4 from Nogales, 7 from Brian A. Terry, and 1 from Willcox)

3 (produced via UPS on October 29). I understand that this production included more than

4 27 terabytes of data.

5

8. On or about November 13, 2015, Plaintiffs received a fourth production of

6 13 external hard drives from Brian A. Terry (produced via UPS on November 12), again

7 with more than 27 terabytes of data.

8

9. On or about November 19, 2015, Plaintiffs received a fifth and final

9 production of 5 external hard drives (4 from Brian A. Terry and 1 from Willcox)

10 (produced via UPS on November 18). I understand that this production included more

11 than 27 terabytes of data.

12

10. In total, Defendants produced 63 hard drives from 7 Border Patrol stations

13 in the Tucson Sector between October 13 and November 18, 2015. I understand that these

14 productions included 94.57 terabytes of data

15

11. In order to determine what video footage was produced by Defendants, I

16 reviewed the materials this Court ordered Defendants to provide.

17

12. On August 14, 2015, the Court ordered Defendants to “produce a list of

18 video surveillance being conducted and maintained in holding cells and all fixtures

19 contained therein, including the bathroom, and any other areas in the CBP facility used for

20 or accessed by detainees.” Defendants produced three such lists.

21

13. Attached as Exhibit 79 is a true and correct copy of a document Bates

22 labeled USA000005-006, produced on or about August 24, 2015.1 Attached as Exhibit 80

23 is a true and correct copy of a document Bates labeled USA000007-009, dated and

24 produced by Defendants on or about August 27, 2105. Attached as Exhibit 88 is a true

25 and correct copy of a document Bates labeled USA000356-358, dated September 3, 2015,

26

27

1 All exhibits cited in this declaration are attached to the Appendix of Exhibits in

Support of Plaintiffs’ Motion for Preliminary Injunction.

28

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1 and produced by Defendants on or about September 4, 2015, which purports to be an

2 updated version of Exhibit 80.

3

14. None of the lists produced by Defendants accurately describes the video

4 surveillance footage maintained and produced by Defendants.

5

15. For example, with respect to Tucson station video surveillance, Exhibit 88

6 states that there were total cameras, yet Defendants’ video production on October 13,

7 2015 included video from no fewer than different cameras.

8

16. While Exhibit 88 states that the earliest footage of holding rooms available

9 was from August 17, 2015, Plaintiffs’ review uncovered several hours of footage

10 timestamped August 9, then nothing until August 19.

11

17. Defendants’ documents also appear to identify by number the specific

12 Digital Video Recorders (“DVRs”) where video from various locations was recorded and

13 preserved. However, the DVR numbers described in Exhibit 88 did not fully align with

14 the DVR files produced.

15

18. Additionally, more than 17 days of holding room video was produced,

16 despite Exhibit 88 stating that footage from the holding rooms was not being archived and

17 the normal duration of retention for that footage was only 17 days.

18 II. DIFFICULTY ASSOCIATED WITH VIDEO PRODUCTIONS

19

19. We faced several technical hurdles preparing to review of the produced hard

20 drives of surveillance video.

21

20. Data from 12 of the 63 hard drives could not be accessed without loading

22 into Network Attached Storage (“NAS”) boxes. Each NAS box can only house up to 4

23 hard drives at a time, and must be reconfigured each time new hard drives are loaded.

24

21. Defendants initially informed us that these Network boxes would work for

25 Brian A. Terry station. However, this was not the case. After consulting with Defendants

26 several times, we were finally able to access the hard drives by using different equipment.

27

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1

22. Five different video playback software programs were required to view

2 video from the various stations. Each program had its own unique user interface and

3 functionality, including playback speeds and maneuverability.

4

23. Videos from several stations, (specifically, Tucson, Douglas and Brian A.

5 Terry stations), were produced in disordered, highly fragmented form, impeding our

6 ability to assess what video was produced from which areas at each station, and how much

7 video was reviewable.

8

24. Video from Tucson, for instance, was produced in hundreds of different

9 files from 4 DVRs purportedly recording and preserving video from that station. Each file

10 contained roughly two hours of video from up to different cameras. The file dates

11 from one DVR did not always align with the file dates from other DVRs, so that in many

12 cases, video of all areas accessible by detainees for a given date was never produced.

13

25. The same alignment issues were present to a greater degree with the Brian

14 A. Terry video productions. Defendants produced a total of 32 external hard drives of

15 video from this station over the course of several weeks. The most recent production of 4

16 hard drives was received on or about November 19, 2015. Each of the 32 total drives

17 produced contains a vast array of fragmented files from various cameras covering a broad

18 spectrum of dates. The 32 drives were produced in two “suites” associated with different

19 DVRs and labeled 1.1 through 1.16 and 2.1 through 2.16. The first suite contained data

20 prior to July, 2015 and September 28 through 30, 2015. The second suite contained data

21 for August 20 through 31, 2015 and September 1 through 29, 2015. Upon review, we

22 observed that video from each DVR indicated the camera numbers associated with each

23 feed. However, we also observed that these camera numbers universally shifted to

24 different camera numbers between the two hard drive suites. This shift appears to have

25 taken place on or around August 20, 2015. At my direction, reviewers attempted to align

26 camera numbers between suites through visual observation and comparison of videos.

27 The resulting alignment is reflected in the column headings of Table 3, appended hereto in

28 Attachment A. The reviewers ultimately found that hold room surveillance video was

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1 produced from as early as February, 2015, yet only one day of video (from only some of

2 the hold rooms on June 23, 2015) was produced for the entire period between June 9,

3 2015 and August 19, 2015.

4

26. Exhibit 98 is a true and correct copy of a document produced by Defendants

5 on or about October 19, 2015, which purports to provide set up instructions for playback

6 of surveillance video from Nogales station. The document also purports to include a map

7 of surveillance camera locations and viewing areas at USA000672. To my knowledge,

8 Defendants did not produce any such maps for any other station.

9

27. While video from several stations purports to indicate the specific location

10 or cell number being recorded, video from other stations did not. For example, much of

11 the Tucson surveillance video merely indicated camera numbers. Counsel for Defendants

12 refused my oral request for information aligning camera numbers with specific cell

13 numbers. Plaintiffs were consequently forced to compare much of the holding room

14 videos to other surveillance videos, photographs from their inspections, and even floor

15 plans produced by Defendants in order to determine which cells we were looking.

16 III. OVERVIEW OF SURVEILLANCE VIDEO PRODUCED FROM HOLD ROOMS
17

18

28. I understand there are eight Border Patrol Stations in the Tucson area.

19 Surveillance video was produced from seven of these stations. Video produced by

20 Defendants included hold rooms, processing areas, sally ports, interview rooms, and other

21 areas accessible by detainees.

22

29. Specifically with respect to the hold room videos, I believe Defendants

23 produced video from different hold rooms across seven of the eight Tucson Sector

24 stations. I have personally reviewed some hold room video from all of the seven stations.

25

30. At my direction, reviewers observed filenames and surveillance video to

26 determine dates of video produced for each of the 88 hold rooms. Appended hereto in

27 Attachment A are Tables 1 through 6 indicating the amount of hold room surveillance

28

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1 video which Plaintiffs have been able to locate in Defendants’ productions from Tucson,

2 Douglas, Brian A. Terry, Sonoita, Casa Grande, and Willcox stations.

3

31. In addition to the video represented in the these six tables, we found video

4 from all hold rooms at Nogales station, covering most or all of the entire period from

5 June 1, 2015 to September 30, 2015.

6

32. No footage whatsoever was produced from Ajo station.

7

33. As can be ascertained from the appended station-by-station tables and

8 summaries above, CBP appears to have destroyed and/or failed to produce significant

9 volumes of hold room surveillance video.

10

34. Furthermore, according to a letter I received from Defendants’ counsel,

11 Sarah Fabian, on October 23, 2015, a true and correct copy of which is attached as

12 Exhibit 194, CBP does not appear to have preserved most of the tracking records showing

13 hold rooms where detainees were housed during their detentions.

14 IV. GENERAL OBSERVATIONS FROM REVIEW OF VIDEO PRODUCTIONS
15

16

35. During my review of Tucson surveillance video, I observed that people are

17 often detained in crowded conditions overnight.

18

36. I have observed surveillance video from all seven stations of detainees lying

19 down on concrete floors inside the hold rooms. These detainees commonly have only a

20 Mylar sheet separating themselves from the ground.

21

37. From my review of surveillance video from all seven stations, I believe that

22 mats are not provided for most detainees. I have also observed numerous instances where

23 too few mats were provided to accommodate all family members or children held in a

24 given cell at one time. (See, e.g., Exs. 146, 147.) I have been informed by reviewers

25 under my direction that Casa Grande, Willcox, Sonoita, and Brian A. Terry stations do not

26 appear ever to provide mats. Records produced by Defendants appear to confirm that

27 mats were never provided to detainees at Willcox, Sonoita or Brian A. Terry stations

28 between June 10, 2015 and September 28, and only 3 times at Casa Grande. I have

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1 observed numerous instances, from all seven stations, of detainees lying on the concrete

2 floors (see, e.g., Exs. 155, 157; Ex. 168; Ex. 191; Ex. 178; Ex.158; Ex. 150; Ex. 130),

3 often while mats go unused in other cells (see, e.g., Exs. 170, 147).

4

38. I have observed hold room lights kept on at all hours of the day and night.

5 (See, e.g., Ex. 167; Exs. 186, 187.) I have also observed that, even when hold room lights

6 are turned off, light still floods in through interior windows facing the processing areas.

7 (See, e.g., Ex. 182.)

8

39. I am informed by reviewers under my direction that water jugs are rarely if

9 ever used at Douglas station. I have observed instances of detainees sharing the same few

10 paper cups at Tucson station and drinking straight from water jugs at Tucson and Casa

11 Grande stations. (See, e.g., Exs. 130, 125, 129, 133, 141.)

12

40. I have observed numerous instances of detainees forced to file out and back

13 in to their holding cells at various hours throughout the day and night.

14

41. I am informed by reviewers under my direction that cleaning crews appear

15 sporadically in the hold rooms, and that, at Casa Grande station, hold rooms are only

16 cleaned once every 48 hours.

17

42. To my knowledge, Defendants produced no policies or procedures regarding

18 the required frequency of cleaning hold rooms.

19

43. I have observed numerous instances of trash accumulating in the cells where

20 no waste bins are visibly provided. (See, e.g., Ex. 189; Ex. 153; Ex. 156.)

21

44. I am informed by reviewers under my direction that detainees are rarely, if

22 ever, seen brushing their teeth or showering.

23

45. I have not observed any instances from any of the seven stations where a

24 detainee was provided a bed or mattress, regardless the duration of their detention.

25

46. I am informed by reviewers under my direction that surveillance video

26 shows one water jug in Hold Room 5 at Casa Grande station that was never replaced or

27 cleaned for five days, despite the cell being swept by maintenance crews on several

28 occasions. No fewer than a dozen different detainees drank directly from the water jug

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1 during that time. No paper cups were placed in Hold Room 5 or provided to detainees

2 occupying that room during the five days.

3 V. 4

VIDEO SURVEILLANCE SCREENSHOT AUTHENTICATION 47. Exhibit 120 is a true and correct copy of a screenshot captured at my

5 direction from Casa Grande station surveillance video produced by Defendants on

6 October 13, 2015, which was stamped with time “2015-Jul-22 09:02:30.313 AM (MST)”

7 and location “Cell 5.”

8

48. Exhibit 121 is a true and correct copy of a screenshot captured at my

9 direction from Casa Grande station surveillance video produced by Defendants on

10 October 13, 2015, which was stamped with time “2015-Jul-24 04:13:47.983 PM (MST)”

11 and location “Cell 5.”

12

49. Exhibit 122 is a true and correct copy of a screenshot captured at my

13 direction from Casa Grande station surveillance video produced by Defendants on

14 October 13, 2015, which was stamped with time “2015-Jul-24 04:17:09.001 PM (MST)”

15 and location “Cell 5.”

16

50. Exhibit 123 is a true and correct copy of a screenshot captured at my

17 direction from Casa Grande station surveillance video produced by Defendants on

18 October 13, 2015, which was stamped with time “2015-Jul-25 06:43:41.911 PM (MST)”

19 and location “Cell 5.” The image is redacted to protect the identity of the individual(s)

20 appearing therein.

21

51. Exhibit 124 is a true and correct copy of a screenshot captured at my

22 direction from Casa Grande station surveillance video produced by Defendants on

23 October 13, 2015, which was stamped with time “2015-Jul-24 06:44:53.916 PM (MST)”

24 and location “Cell 5.” The image is redacted to protect the identity of the individual(s)

25 appearing therein.

26

52. Exhibit 125 is a true and correct copy of a screenshot captured at my

27 direction from Casa Grande station surveillance video produced by Defendants on

28 October 13, 2015, stamped with time “2015-Jul-20 05:18:07.615 PM (MST)” and location

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1 “Cell 5.” The image is redacted to protect the identity of the individual(s) appearing

2 therein.

3

53. Exhibit 126 is a true and correct copy of a screenshot captured at my

4 direction therein from Casa Grande station surveillance video produced by Defendants on

5 October 13, 2015, stamped with time “2015-Jul-20 06:47:02.415 PM (MST)” and location

6 “Cell 5.”

7

54. Exhibit 127 is a true and correct copy of a screenshot captured at my

8 direction from Casa Grande station surveillance video produced by Defendants on

9 October 13, 2015, stamped with time “2015-Jul-21 06:56:57.518 AM (MST)” and

10 location “Cell 5.”

11

55. Exhibit 128 is a true and correct copy of a screenshot captured at my

12 direction from Casa Grande station surveillance video produced by Defendants on

13 October 13, 2015, stamped with time “2015-Jul-20 08:25:29.956 PM (MST)” and

14 location “Cell 5.” The image is redacted to protect the identity of the individual(s)

15 appearing therein.

16

56. Exhibit 129 is a true and correct copy of a screenshot captured at my

17 direction from Casa Grande station surveillance video produced by Defendants on

18 October 13, 2015, stamped with time “2015-Jul-20 08:48:45.093 PM (MST)” and location

19 “Cell 5.” The image is redacted to protect the identity of the individual(s) appearing in

20 the image.

21

57. Exhibit 130 is a true and correct copy of a screenshot captured at my

22 direction from Casa Grande station surveillance video produced by Defendants on

23 October 13, 2015, stamped with time“2015-Jul-20 09:54:00.459 PM (MST)” and location

24 “Cell 5.” The image is redacted to protect the identity of the individual(s) appearing

25 therein.

26

58. Exhibit 131 is a true and correct copy of a screenshot captured at my

27 direction from Casa Grande station surveillance video produced by Defendants on

28

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1 October 13, 2015, stamped with time “2015-Jul-20 11:43:42.031 AM (MST)” and

2 location “Cell 5.”

3

59. Exhibit 132 is a true and correct copy of a screenshot captured at my

4 direction from Casa Grande station surveillance video produced by Defendants on

5 October 13, 2015, stamped with time“2015-Jul-20 12:54:12.328 PM (MST)” and location

6 “Cell 5.”

7

60. Exhibit 133 is a true and correct copy of a screenshot captured at my

8 direction from Casa Grande station surveillance video produced by Defendants on

9 October 13, 2015, stamped with time “2015-Jul-20 06:54:36.499 AM (MST)” and

10 location “Cell 5.” The image is redacted to protect the identity of the individual(s)

11 appearing therein.

12

61. Exhibit 134 is a true and correct copy of a screenshot captured at my

13 direction from Casa Grande station surveillance video produced by Defendants on

14 October 13, 2015, stamped with time“2015-Jul-21 09:26:28.354 AM (MST)” and location

15 “Cell 5.” The image is redacted to protect the identity of the individual(s) appearing

16 therein.

17

62. Exhibit 135 is a true and correct copy of a screenshot captured at my

18 direction from Casa Grande station surveillance video produced by Defendants on

19 October 13, 2015, stamped with time “2015-Jul-22 09:07:39.338 AM (MST)” and

20 location “Cell 5.”

21

63. Exhibit 136 is a true and correct copy of a screenshot captured at my

22 direction from Casa Grande station surveillance video produced by Defendants on

23 October 13, 2015, stamped with time“2015-Jul-22 09:51:03.583 PM (MST)” and location

24 “Cell 5.” The image is redacted to protect the identity of the individual(s) appearing

25 therein.

26

64. Exhibit 137 is a true and correct copy of a screenshot captured at my

27 direction from Casa Grande station surveillance video produced by Defendants on

28

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1 October 13, 2015, stamped with time “2015-Jul-23 05:55:49.343 AM (MST)” and

2 location “Cell 5.”

3

65. Exhibit 138 is a true and correct copy of a screenshot captured at my

4 direction from Casa Grande station surveillance video produced by Defendants on

5 October 13, 2015, stamped with time “2015-Jul-24 05:30:39.414 PM (MST)” and location

6 “Cell 5.”

7

66. Exhibit 139 is a true and correct copy of a screenshot captured at my

8 direction from Casa Grande station surveillance video produced by Defendants on

9 October 13, 2015, stamped with time“2015-Jul-24 09:04:15.572 AM (MST)” and location

10 “Cell 5.” The image is redacted to protect the identity of the individual(s) appearing

11 therein.

12

67. Exhibit 140 is a true and correct copy of a screenshot captured at my

13 direction from Casa Grande station surveillance video produced by Defendants on

14 October 13, 2015, stamped with time “2015-Jul-24 09:06:30.584 AM (MST)” and

15 location “Cell 5.”

16

68. Exhibit 141 is a true and correct copy of a screenshot captured at my

17 direction from Casa Grande station surveillance video produced by Defendants on

18 October 13, 2015, stamped with time “2015-Jul-25 09:51:47.932 AM (MST)” and

19 location “Cell 5.”

20

69. Exhibit 142 is a true and correct copy of a screenshot captured at my

21 direction from Casa Grande station surveillance video produced by Defendants on

22 October 13, 2015, stamped with time “2015-Jul-25 12:09:59.662 AM (MST)” and

23 location “Cell 5.”

24

70. Exhibit 143 is a true and correct copy of a screenshot captured at my

25 direction from Casa Grande station surveillance video produced by Defendants on

26 October 13, 2015, stamped with time “2015-Jul-26 02:18:54.729 PM (MST)” and location

27 “Cell 9.” The image is redacted to protect the identity of the individual(s) appearing

28 therein.

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1

71. Exhibit 144 is a true and correct copy of a screenshot captured at my

2 direction from Casa Grande station surveillance video produced by Defendants on

3 October 13, 2015, stamped with time “2015-Jul-26 02:18:36.729 PM (MST)” and location

4 “Cell 9.” The image is redacted to protect the identity of the individual(s) appearing

5 therein.

6

72. Exhibit 145 is a true and correct copy of a screenshot captured at my

7 direction from Douglas station surveillance video produced by Defendants on October 13,

8 2015, stamped with time “09-07-2015 08:49:50:000” and camera number “C20.”

9

73. Exhibit 146 is a true and correct copy of a screenshot captured at my

10 direction from Douglas station surveillance video produced by Defendants on October 13,

11 2015, stamped with time “09-07-2015 11:13:59:828” and camera number “C20.”

12

74. Exhibit 147 is a true and correct copy of a screenshot captured at my

13 direction from Douglas station surveillance video produced by Defendants on October 13,

14 2015. The image shows 10 feeds stamped with camera numbers “C19,” “C20,” “C21,”

15 C22,” “C23,” “C24,” “C25,” “C8,” “C14,” and “C16” times between 09-07-2015

16 12:18:15:765 and 12:18:16:765. The image is redacted to protect the identity of the

17 individual(s) appearing therein.

18

75. Exhibit 148 is a true and correct copy of a screenshot captured at my

19 direction from Douglas station surveillance video produced by Defendants on October 13,

20 2015, stamped with time “09-07-2015 06:18:20:093” and camera number “C21.”

21

76. Exhibit 149 is a true and correct copy of a screenshot captured at my

22 direction from Douglas station surveillance video produced by Defendants on October 13,

23 2015, stamped with time “09-07-2015 06:32:56:125” and camera number “C21.” The

24 image is redacted to protect the identity of the individual(s) appearing therein.

25

77. Exhibit 150 is a true and correct copy of a screenshot captured at my

26 direction from Douglas station surveillance video produced by Defendants on October 13,

27 2015, stamped with time “09-09-2015 04:34:06:718” and camera number “C8.”

28

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1

78. Exhibit 151 is a true and correct copy of a screenshot captured at my

2 direction from Douglas station surveillance video produced by Defendants on October 13,

3 2015, stamped with time “09-11-2015 00:01:04:453” and camera number “C8.” The

4 image is redacted to protect the identity of the individual(s) appearing therein.

5

79. Exhibit 152 is a true and correct copy of a screenshot captured at my

6 direction from Douglas station surveillance video produced by Defendants on October 13,

7 2015, stamped with time “09-11-2015 22:45:05:265” and camera number “C8.” The

8 image is redacted to protect the identity of the individual(s) appearing therein.

9

80. Exhibit 153 is a true and correct copy of a screenshot captured at my

10 direction from Douglas station surveillance video produced by Defendants on October 13,

11 2015, stamped with time “09-11-2015 17:38:45:546” and camera number “C8.”

12

81. Exhibit 158 is a true and correct copy of a screenshot captured at my

13 direction from Nogales station surveillance video produced by Defendants on October 13,

14 2015, stamped with time “2015/06/14 AM02:03:18,” camera number “CAM17 Camera

15 17” and location “Cell #3.”

16

82. Exhibit 159 is a true and correct copy of a screenshot captured at my

17 direction from Nogales station surveillance video produced by Defendants on October 13,

18 2015, stamped with time “2015/06/14 AM02:21:16,” camera number “CAM17 Camera

19 17” and location “Cell #3.” The image is redacted to protect the identity of the

20 individual(s) appearing therein.

21

83. Exhibit 160 is a true and correct copy of a screenshot captured at my

22 direction from Nogales station surveillance video produced by Defendants on October 13,

23 2015, stamped with time “2015/06/14 AM02:21:53,” camera number “CAM17 Camera

24 17” and location “Cell #3.” The image is redacted to protect the identity of the

25 individual(s) appearing therein.

26

84. Exhibit 161 is a true and correct copy of a screenshot captured at my

27 direction from Nogales station surveillance video produced by Defendants on October 13,

28 2015, stamped with time “2015/06/14 AM12:02:30,” camera number “CAM17 Camera

DECL. OF KEVIN M. COLES ISO MOTION FOR PRELIMINARY INJUNCTION

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1 17” and location “Cell #3.” The image is redacted to protect the identity of the

2 individual(s) appearing therein.

3

85. Exhibit 162 is a true and correct copy of a screenshot captured at my

4 direction from Nogales station surveillance video produced by Defendants on October 13,

5 2015, stamped with time “2015/06/14 PM10:52:39,” camera number “CAM1 Cell 1” and

6 location “Cell 6.” The image is redacted to protect the identity of the individual(s)

7 appearing therein.

8

86. Exhibit 163 is a true and correct copy of a screenshot captured at my

9 direction from Nogales station surveillance video produced by Defendants on October 13,

10 2015, stamped with time “2015/06/14 PM10:52:58,” camera number “CAM1 Cell 1” and

11 location “Cell 6.”

12

87. Exhibit 164 is a true and correct copy of a screenshot captured at my

13 direction from Nogales station surveillance video produced by Defendants on October 13,

14 2015, stamped with time “2015/06/13 PM04:15:45,” camera number “CAM11

15

” and location “Cell #7.” The image is redacted to protect the identity of the

16 individual(s) appearing therein.

17

88. Exhibit 165 is a true and correct copy of a screenshot captured at my

18 direction from Nogales station surveillance video produced by Defendants on October 13,

19 2015, stamped with time “2015/06/13 PM07:20:05,” camera number “CAM11

20

” and location “Cell #7.” The image is redacted to protect the identity of the

21 individual(s) appearing therein.

22

89. Exhibit 166 is a true and correct copy of a screenshot captured at my

23 direction from Nogales station surveillance video produced by Defendants on October 13,

24 2015, stamped with time “2015/06/13 AM09:46:49,” camera number “CAM11

25

” and location “Cell #7.” The image is redacted to protect the identity of

26 the individual(s) appearing therein.

27

90. Exhibit 167 is a true and correct copy of a screenshot captured at my

28 direction from Nogales station surveillance video produced by Defendants on October 13,

DECL. OF KEVIN M. COLES ISO MOTION FOR PRELIMINARY INJUNCTION

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1 2015. The image shows 16 feeds, all stamped with time “2015/06/14 AM02:03:18,”

2 camera numbers “CAM2 Cell 2,” “CAM3 Cell 3,” “CAM4 Cell 4,” “CAM5 Cell 5,”

3 “CAM6 Cell 6,” “CAM7 Cell 7,” “CAM8 Cell 8,” “CAM9, Cell 9,” “CAM10

4 Cells 2 & 3,” “CAM11

” “CAM12

” “CAM3

5

” “CAM14

” “CAM15

6

” “CAM16

” and “CAM17 Camera 17.” The image is

7 redacted to protect the identity of the individual(s) appearing therein.

8

91. Exhibit 170 is a true and correct copy of a screenshot that I captured from

9 Tucson station surveillance video produced by Defendants on October 13, 2015. The

10 image shows feeds stamped with camera numbers “C1” through “C16” and times

11 between “08-09-2015 18:03:10:916” and “18:03:11:103.” The image is redacted to

12 protect the identity of the individual(s) appearing therein.

13

92. Exhibit 171 is a true and correct copy of a screenshot that I captured from

14 Tucson station surveillance video produced by Defendants on October 13, 2015. The

15 image shows feeds stamped with camera numbers “C1” through “C16” and times

16 between “08-09-2015 00:42:59:183” and “00:42:59:386.” The image is redacted to

17 protect the identity of the individual(s) appearing therein.

18

93. Exhibit 172 is a true and correct copy of a screenshot that I captured from

19 Tucson station surveillance video produced by Defendants on October 13, 2015. The

20 image shows feeds stamped with camera numbers “C1” through “C16,” time “9/3/2015

21 1:35:12 PM,” and locations “Cell 4,”

,”

”

22 “Cell 5,” “Cell 5” (2), “Cell 6,” “Cell 7,” “Cell 8,”

” “

”

23

” “Cell 21,” “Cell 20,” “Cell 19,” “Cell 19” (2), and “

24

” The image is redacted to protect the identity of the individual(s) appearing

25 therein.

26

94. Exhibit 173 is a true and correct copy of a screenshot that I captured from

27 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

28 playback software indicates that this image is from Cell 4 (Camera 1) on 9/22/2015 at

DECL. OF KEVIN M. COLES ISO MOTION FOR PRELIMINARY INJUNCTION

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1 6:28:41 AM. The image is redacted to protect the identity of the individual(s) appearing

2 therein.

3

95. Exhibit 174 is a true and correct copy of a screenshot that I captured from

4 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

5 playback software indicates that this image is from Cell 5 on 9/25/2015 at 9:40:47 PM.

6

96. Exhibit 175 is a true and correct copy of a screenshot that I captured from

7 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

8 playback software indicates that this image is from Cell 6 on 9/20/2015 at 2:56:58 AM.

9 The image is redacted to protect the identity of the individual(s) appearing therein.

10

97. Exhibit 176 is a true and correct copy of a screenshot that I captured from

11 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

12 playback software indicates that this image is from Cell 6 on 9/27/2015 at 9:14:40 PM.

13 The image is redacted to protect the identity of the individual(s) appearing therein.

14

98. Exhibit 177 is a true and correct copy of a screenshot that I captured from

15 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

16 playback software indicates that this image is from Cell 7 on 9/22/2015 at 6:28:41 AM.

17 The image is redacted to protect the identity of the individual(s) appearing therein.

18

99. Exhibit 178 is a true and correct copy of a screenshot that I captured from

19 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

20 playback software indicates that this image is from Cell 19 on 9/08/2015 at 1:35:53 AM.

21 The image is redacted to protect the identity of the individual(s) appearing therein.

22

100. Exhibit 179 is a true and correct copy of a screenshot that I captured from

23 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

24 playback software indicates that this image is from Cell 19 on 9/15/2015 at 5:01:44 AM.

25 The image is redacted to protect the identity of the individual(s) appearing therein.

26

101. Exhibit 180 is a true and correct copy of a screenshot that I captured from

27 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

28

DECL. OF KEVIN M. COLES ISO MOTION FOR PRELIMINARY INJUNCTION

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1 playback software indicates that this image is from Cell 19 on 9/21/2015 at 8:34:07 PM.

2 The image is redacted to protect the identity of the individual(s) appearing therein.

3

102. Exhibit 181 is a true and correct copy of a screenshot that I captured from

4 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

5 playback software indicates that this image is from Cell 19 on 9/8/2015 at 1:35:53 AM.

6 The image is redacted to protect the identity of the individual(s) appearing therein.

7

103. Exhibit 182 is a true and correct copy of a screenshot that I captured from

8 Tucson station surveillance video produced by Defendants on October 13, 2015, stamped

9 with time “08-09-2015 00:42:59:511” and camera number “CH 2.” The image is redacted

10 to protect the identity of the individual(s) appearing therein.

11

104. Exhibit 183 is a true and correct copy of a screenshot that I captured from

12 Tucson station surveillance video produced by Defendants on October 13, 2015, stamped

13 with time “08-09-2015 18:03:10:978” and camera number “CH 2.” The image is redacted

14 to protect the identity of the individual(s) appearing therein.

15

105. Exhibit 184 is a true and correct copy of a screenshot that I captured from

16 Tucson station surveillance video produced by Defendants on October 13, 2015, stamped

17 with time “08-09-2015 00:42:59:417” and camera number “CH 3.” The image is redacted

18 to protect the identity of the individual(s) appearing therein.

19

106. Exhibit 185 is a true and correct copy of a screenshot that I captured from

20 Tucson station surveillance video produced by Defendants on October 13, 2015, stamped

21 with time “08-09-2015 18:03:10:947” and camera number “CH 3.” The image is redacted

22 to protect the identity of the individual(s) appearing therein.

23

107. Exhibit 186 is a true and correct copy of a screenshot that I captured from

24 Tucson station surveillance video produced by Defendants on October 13, 2015. The

25 image shows feeds stamped with camera numbers “C1” through “C16,” time

26 “9/28/2015 11:59:58 PM,” and locations “Cell 4,” “

” “

27

” “Cell 5,” “Cell 5” (2), “Cell 6,” “Cell 7,” “Cell 8,” “

” “

28

” “

” “Cell 21,” “Cell 20,” “Cell 19,” “Cell 19” (2), and

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1 “

.” The image is redacted to protect the identity of the

2 individual(s) appearing therein.

3

108. Exhibit 187 is a true and correct copy of a screenshot that I captured from

4 Tucson station surveillance video produced by Defendants on October 13, 2015. The

5 image shows four feeds stamped with time “9/28/2015 3:42:34 AM,” camera numbers

6 “C6,” “C9,” “C8,” and “C4,” and locations “

” “Cell 18

7 (Camera 2),” “Cell 1,” and “

.”

8

109. Exhibit 188 is a true and correct copy of a screenshot that I captured from

9 Tucson station surveillance video produced by Defendants on October 13, 2015, stamped

10 with time “08-19-2015 05:16:42:107” and camera number “CH 1.”

11

110. Exhibit 189 is a true and correct copy of a screenshot that I captured from

12 Tucson station surveillance video produced by Defendants on October 13, 2015, stamped

13 with time “08-09-2015 08:23:03:133” and camera number “CH 3.”

14

111. Exhibit 203 is a true and correct copy of a screenshot that I captured from

15 Tucson station surveillance video produced by Defendants on October 13, 2015. Video

16 playback software indicates that this image is from Cell 6 on 9/08/2015 at 9:34:02 AM.

17 The image is redacted to protect the identity of the individual(s) appearing therein.

18

112. Exhibit 154 is a true and correct copy of a screenshot captured at my

19 direction from Brian A. Terry station surveillance video produced by Defendants on

20 October 15, 2015. Video playback software indicates that this image is from Camera 61

21 on 6/6/2015 at 11:10:30 AM. The image is redacted to protect the identity of the

22 individual(s) appearing therein.

23

113. Exhibit 155 is a true and correct copy of a screenshot captured at my

24 direction from Brian A. Terry station surveillance video produced by Defendants on

25 October 15, 2015. Video playback software indicates that this image is from Camera 56

26 on 8/31/2015 at 6:55:41 AM. The image is redacted to protect the identity of the

27 individual(s) appearing therein.

28

DECL. OF KEVIN M. COLES ISO MOTION FOR PRELIMINARY INJUNCTION

18

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1

114. Exhibit 156 is a true and correct copy of a screenshot captured at my

2 direction from Brian A. Terry station surveillance video produced by Defendants on

3 October 15, 2015. Video playback software indicates that this image is from Camera 87

4 on 9/5/2015 at 7:54:28 PM. The image is redacted to protect the identity of the

5 individual(s) appearing therein.

6

115. Exhibit 157 is a true and correct copy of a screenshot captured at my

7 direction from Brian A. Terry station surveillance video produced by Defendants on

8 October 15, 2015. Video playback software indicates that this image is from Camera 93

9 on 9/11/2015 at 9:07:23 PM. The image is redacted to protect the identity of the

10 individual(s) appearing therein.

11

116. Exhibit 168 is a true and correct copy of a screenshot captured at my

12 direction from Sonoita station surveillance video produced by Defendants on October 13,

13 2015, stamped with time “2015/09/15 00:57:39” and camera number “[Site1]Ch1.” The

14 image is redacted to protect the identity of the individual(s) appearing therein.

15

117. Exhibit 169 is a true and correct copy of a screenshot captured at my

16 direction from Sonoita station surveillance video produced by Defendants on October 13,

17 2015, stamped with time “2015/09/15 01:12:11” and camera number “[Site1]Ch2.” The

18 image is redacted to protect the identity of the individual(s) appearing therein.

19

118. Exhibit 190 is a true and correct copy of a screenshot captured at my

20 direction from Willcox station surveillance video produced by Defendants on October 15,

21 2015, stamped with time “LTZ 6/13/2015 10:00:03 AM” and location “Cell D107.”

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

DECL. OF KEVIN M. COLES ISO MOTION FOR PRELIMINARY INJUNCTION

19

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Case 4:15-cv-00250-DCB Document 206-6 Filed 08/17/16 Page 23 of 29
Attachment A

Case 4:15-cv-00250-DCB Document 206-6 Filed 08/17/16 Page 24 of 29

Table 1:* Hold Room Surveillance Video Produced from Tucson Station

Dates:**
Before June 10, 2015
June 10-30

1 None
None

2 None
None

3 None
None

4

5

None None

None None

6 None
None

Cells

7

8 16

None None None

None None None

17 18 19 None None None
None None None

20 None
None

21 None
None

July 1-31 None None None None None None None None None None None None None None

Aug. 1-31 5

5

5

23 18 18 18 18 5

5

5

18

18

18

hours hours hours hours hours hours hours hours hours hours hours hours hours hours

Sept. 1-28 4 days None None 26 26 26 26

26 None None 4

26 26

26

days days days days days

days days days days

After Sept. None None None None None None None None None None None None None None 28, 2015

* The number of days appearing in Tables 1 through 6 reflects days for which at least some hold room surveillance video was produced. For example, if hold room surveillance video was produced from noon on August 1 until noon on August 2, the table would reflect that two days of video were produced. In the event that less than one full day of hold room surveillance video was produced for a given date range, the table reflects the approximate number of hours produced for that date range.
** All dates in Tables 1 through 6 are from the year 2015.
1
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Table 2: Hold Room Surveillance Video Produced from Douglas Station

Dates:
Before June 10, 2015

Cells

1

2

3

4

5

6

7

8 to 13***

14

15

16

17

18

19

20

109 22 22 22 None 109 22 None None None None None None None None

days days days days

days days

June 10-30 3

None None None None 3

None None None None None None None None None

days

days

July 1-31 None 26 26 26 4 None 26 None None None None None None None None

days days days days

days

Aug. 1-31

13 24 24 24 29 13 24 8 days days days days days days days days
each

8

8

8

8

8

8

8

days days days days days days days

Sept. 1-28 28 28 28 28 27 28 28 27 days days days days days days days days each

27 27 27 27 27 27 27 days days days days days days days

After Sept. 2

2

2

2

None 2

2

None None None None None None None None

28, 2015 days days days days

days days

*** Cells 8 through 13 are six separate isolation cells that have all been represented in one column for economy of space.

2
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Table 3: Hold Room Surveillance Video Produced from Brian A. Terry Station

Camera numbers**** (By Camera Nos. for DVRs 1.1-1.16 and/or 2.1-2.16):

Dates
Before June 10, 2015
June 1030

58 59 60 61 62 63 64 115 116/ 117/ 118/ 119/ 120/ 121/ 122/ 123/ 124/ /87 /77 /95 /79 /94 /93 /92 /50 51 52 53 54 55 56 57 58 59 /61 /62 99 99 99 99 99 99 99 ≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 None None days days days days days days days day day day day day day day day day day
≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 ≤ 1 None None None None None None None None None None None None day day day day day day day

July 1-31 None None None None None None None None None None None None None None None None None None None

Aug. 1-31 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 days days days days days days days days days days days days days days days days days days days

Sept. 1- 28 28 28 28 28 28 28 28 28 28 28 28 28 28 28 28 28 28 28

28

days days days days days days days days days days days days days days days days days days days

After

2 2 2 2 2 2 2 ≤1 ≤1 ≤1 ≤1 ≤1 ≤1 ≤1 ≤1 ≤1 ≤1 ≤1 ≤1

Sept. 28, day day day day day day day day day day day day day day day day day day day

2015

**** As explained more fully in paragraph 25 of this Declaration, Plaintiffs’ review of surveillance video revealed that all camera numbers from Brian A. Terry Station changed on or around August 20, 2015. The two cameras numbers identified in each column heading of Table 3 reflect what is believed to be the alignment of hold room surveillance video locations from before and after the number shift.

3
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Table 4: Hold Room Surveillance Video Produced from Sonoita Station

Dates

1

Before

None

June 10, 2015

2 None

Cells (By Channel Numbers)

3 None

4 None

5 None

6 None

Jun.10- 30 None

None

None

None

None

None

Jul. 1 - 31 None

None

None

None

None

None

Aug. 1-31 None

None

None

None

None

None

Sept. 1-28, 2015

6 days

After

None

Sept. 28, 2015

6 days None

6 days None

6 days None

6 days None

6 days None

4
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Table 5: Hold Room Surveillance Video Produced from Casa Grande Station

Dates
Before June 10, 2015 Jun.1030

1 None
None

2 None
None

3 None
None

4 None
None

Cells

5 None

6 None

None

None

7 None
None

8 None
None

9 None
None

10 None
None

Jul. 1 - 31 12 days 12 days 12 days 12 days 12 days 12 days 12 days 12 days 12 days 12 days

Aug. 1-31 19 days 19 days 19 days 19 days 19 days 19 days 19 days 19 days 19 days 19 days

Sept. 1-28 28 days 28 days 28 days 28 days 28 days 28 days 28 days 28 days 28 days 28 days

After

12 hours 12 hours 12 hours 12 hours 12 hours 12 hours 12 hours 12 hours 12 hours 12 hours

Sept. 28,

2015

5
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Table 6: Hold Room Surveillance Video Produced from Willcox Station

DATES D107

Before June 10, 2015

None

June 10- 30 15 days

D108 None
15 days

D109 None
15 days

Kennel Fuel PTZ None
19 days

Cells

D114 None

D115 None

19 days 19 days

D116 None
19 days

D117 None
15 days

D118 None
None

D119 None
15 days

July 1 - 31 None None None 1 day 1 day 1 day 1 day None None None

Aug. 1-31 None None None None None None None None None None

Sept. 1-28, None 2015

After Sept. 28, 2015

None

None None

None None

None None

None None

None None

None None

None None

None None

None None

6
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 Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 1 of 29

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10

Plaintiffs,

ORDER

11 v.

12 Jeh Johnson, et al.,

13

Defendants.

14

15

Plaintiffs filed this action on June 8, 2015, asserting six claims for relief related to

16 alleged inhumane and punitive treatment of Tucson Sector1 civil immigration detainees.

17 Plaintiffs allege five claims of violations of the Due Process Clause of the Fifth

18 Amendment based on deprivation of sleep, of hygienic and sanitary conditions, of

19 adequate medical screening and care, of adequate food and water, and of warmth. (Doc. 1

20 ¶¶ 184-218.) Plaintiffs also alleged the Defendants violated the Administrative

21 Procedures Act (APA) by failing to enforce their own procedures related to the operation

22 of holding cells in Tucson Sector facilities, id. ¶¶ 219-24, but this claim was dismissed,

23 (Order (Doc. 118)). Previously in addition to granting in part and denying in part

24 Defendants’ Motion to Dismiss, the Court certified the case as a class action. (Order

25 (Doc. 117)). The Court now considers Plaintiffs’ Motion for a Preliminary Injunction.

26

27

1 The Tucson Sector includes Border Patrol facilities at Bisbee (Brian A. Terry

28

Station/ Naco Station), Casa Grande, Douglas, Nogales, Sonoita, Tucson, Why (Ajo Station), Willcox, and Three Points. The Motion for Preliminary Injunction relied on

early discovery conducted at Tucson, Douglas, Nogales, and Casa Grande.

Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 2 of 29

1 Following an evidentiary hearing, the Court finds the evidence supports the Plaintiffs’ 2 experts’ declarations attached to the Motion for a Preliminary Injunction,2 and grants the

3 motion for the reasons that follow.

4

A. Preliminary Injunction: Standard of Review

5

Preliminary injunctions are an “extraordinary remedy never awarded as of right.”

6 Winter v. NRDC, 555 U.S. 7, 24 (2008). In Winter, the Supreme Court explained the

7 four-factor test. “A plaintiff seeking a preliminary injunction must show that: (1) she is

8 likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence

9 of preliminary relief, (3) the balance of equities tips in her favor, and (4) an injunction is

10 in the public interest.” Farris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012) (citing

11 Winter, 555 U.S. at 20). “The first factor under Winter is the most important—likely

12 success on the merits.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citing

13 Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.Cir. 2014) (“We begin with the first and

14 most important factor: whether petitioners have established a likelihood of success on the

15 merits.”)). “Because it is a threshold inquiry, when ‘a plaintiff has failed to show the

16 likelihood of success on the merits, we ‘need not consider the remaining three [Winter

17 elements].’” Id. (quoting Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris,

18 729 F.3d 937, 944 (9th Cir. 2013) (quoting DISH Network Corp. v. F.C.C., 653 F.3d 771,

19 776–77 (9th Cir. 2011)).

20

When a plaintiff is requesting a mandatory injunction, the burden is doubly

21 demanding because then the plaintiff must establish that the law and facts clearly favor

22

23

2 Motion for Preliminary Injunction (MPI) (Doc. 206); Opposition (Response) (Doc. 141); Reply (Doc. 145). The Plaintiffs’ experts are: Eldon Vail, a corrections

24

administrator; Robert Powitz, a forensic Sanitarian, with expertise in correctional public health; Joe Goldenson, M.D., Medical Director for Jail Health Services for the San

25

Francisco Department of Public Health; Joseph Gaston, Plaintiffs’ attorney responsible for data analysis, and Kevin Coles, Plaintiffs attorney responsible for reviewing video

26

surveillance tapes. Defendants experts are: George Allen, the Assistant Chief Patrol Agent for the Tucson Sector; Diane Skipworth, Sanitarian; Richard Bryce, retired

27

Undersheriff of Ventura County Sheriff’s Department in California; Philip Harber, M.D., Professor of Medicine with expertise in occupational-environmental (preventative)

28

medicine, and Justin Bristow, Border Patrol’s Acting Chief, Strategic Planning and Analysis, overseeing various programs including the e3 Processing Module/e3 Detention

Module (e3DM data system).

- 2 -

Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 3 of 29

1 her position, not simply that she is likely to succeed on the merits. Id. This was the

2 standard applied when an actress requested an injunction requiring Google to take

3 affirmative action—to remove (and to keep removing) Innocence of Muslims from

4 YouTube and other sites under its auspices. This relief was treated as a mandatory

5 injunction because it “orders a responsible party to ‘take action.’” Id. (quoting Marlyn

6 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009).

7 This heightened standard is necessary because a mandatory injunction “goes well beyond

8 simply maintaining the status quo pendente lite [and] is particularly disfavored,” id.

9 (quoting Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994)). Therefore,

10 “mandatory injunctions should not issue in ‘doubtful cases.’” Id. (quoting Park Vill.

11 Apartment Tenants Ass'n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir.

12 2011)).

13

Following Winter,3 the Ninth Circuit applies a sliding scale test where serious

14 questions going to the merits and a balance of hardships that tips sharply in favor of the

15 plaintiff can support issuance of a preliminary injunction if plaintiff also shows that there

16 is a likelihood of irreparable injury and the injunction is in the public interest. Alliance

17 for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

18

Harm that is merely monetary “will not usually support injunctive relief.”

19 American Trucking Associations v. City of Los Angeles, 559 F.3d 1046, 1057 (9th Cir.

20 2009). Harm that is “merely speculative” will not support injunctive relief. Id. This is

21 because “[a] preliminary injunction is an extraordinary remedy never awarded as of

22 right.” Winter, 555 U.S. at 55. In balancing the competing claims of injury and

23 consequences resulting from the granting or withholding of the requested relief, a court

24

25

3 Before Winter, a plaintiff could demonstrate either: (1) a likelihood of success on

26

the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor. These two

27

alternatives represented extremes of a single continuum, rather than two separate tests. Thus, the greater the relative hardship to the party seeking the preliminary injunction, the

28

less probability of success the party had to show. In Winter, the Supreme Court definitively refuted the “possibility of irreparable injury” standard as too lenient.

Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126–27 (9th Cir. 2009)

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 4 of 29

1 exercises its sound discretion, and, in equity, a court “should pay particular regard for the

2 public consequences in employing the extraordinary remedy of injunction.” Weinberger

3 v. Romero–Barcelo, 456 U.S. 305, 312 (1982). The government cannot be harmed,

4 however, from an injunction that merely ends an unconstitutional practice. Rodriguez v. 5 Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013).

6

The Court “‘need not consider public consequences that are highly speculative.’”

7 Stormans, 586 F.3d at 1139. (quoting Golden Gate Restaurant Association v. City &

8 County of San Francisco, 512 F.3d 1112, 1126 (9th Cir. 2008)). “In other words, the

9 court should weigh the public interest in light of the likely consequences of the

10 injunction. Such consequences must not be too remote, insubstantial, or speculative and

11 must be supported by evidence.” Id.

12

In the Ninth Circuit “the deprivation of constitutional rights unquestionably

13 constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).

14 This is because “constitutional violations cannot be adequately remedied through

15 damages and therefore generally constitute irreparable harm.” Am. Trucking Ass’ns, Inc.,

16 559 F.3d at 1059. In the Ninth Circuit, “it is always in the public interest to prevent the

17 violation of a party’s constitutional rights.” Melendres, 695 F.3d at 1002 (quoting 18 Sammarano v. First Jud. Dist. Ct., 303 F.3d 949, 974 (9th Cir. 2002)). If plaintiffs “show

19 that a constitutional rights claim is likely to succeed, the remaining preliminary

20 injunction factors weigh in favor of granting an injunction.” Vivid Entm’t, LLC v.

21 Fielding, 956 F. Supp. 2d 1113, 1136 (C.D. Calif. 2013) (citing Melendres, 695 F.3d at 22 1002; Klein v City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009)).

23

In summary, as a threshold matter under Winter, the Plaintiffs must establish a

24 likelihood of success on the merits of their claims before the Court can grant a

25 preliminary injunction. If the Plaintiffs are unable to establish the threshold element of

26 likely success on the merits, the request for a preliminary injunction must be denied and

27 the Court need not review whether the remaining requirements for issuance of a

28 preliminary injunction are satisfied. If the threshold is met, the Plaintiffs must establish

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 5 of 29

1 the other three elements: they are likely to suffer irreparable harm without the injunction,

2 the balance of equity tips in favor of the injunction, and the public interest favors the

3 injunction. Alternatively, under the “sliding scale” approach, a preliminary injunction

4 may be granted if there are “serious questions going to the merits and a hardship balance

5 that tips sharply toward the [Plaintiffs],” so long as “the other two elements of the Winter

6 test, [irreparable harm and public interest], are also met.”

7

If a mandatory injunction is sought, the Plaintiffs must make a doubly burdensome

8 threshold showing: that the law and facts clearly favor their position, not simply that

9 there is a likelihood of success on the merits. This is because mandatory injunctions are

10 not granted unless extreme or very serious damage will result and are not issued in

11 doubtful cases.

12

B. Mandatory Injunction or Injunction to Maintain the Status Quo?

13

A mandatory injunction orders a party to take action, while a prohibitory

14 injunction prohibits action and preserves the status quo pending a determination of the

15 action on the merits. Marlyn Nutraceuticals, 571 F.3d at 878–79. “The relevant status

16 quo is that ‘between the parties pending a resolution of a case on the merits.’” Arizona 17 Dream Act Coalition (DACA) v. Brewer, 757 F.3d 1053, 1061 (9th Cir. 2014) (quoting

18 McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir. 2012)). In the context of a

19 preliminary injunction, the “status quo” refers to the legally relevant relationship between

20 the parties before the controversy arose. McCormack, 694 F.3d 1020. It is not enough

21 that the result of an injunction may be an action taken in response to it; as long as the

22 injunction does not mandate a change in the status quo it is prohibitory. Id. (citing see

23 Marlyn Nutraceuticals, 571 F.3d at 879).

24

It is not a defense that “Border Patrol has done everything possible with the

25 resources provided by Congress to ensure that conditions at its stations protect the health

26 and safety of the individuals in its custody.” (Response at 3.) The Court is not

27 unsympathetic, but a deprivation of constitutional rights cannot be justified by fiscal

28 necessity, Golden Gate Rest. Ass’n., 512 F.3d at 1126, and the government may be

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 6 of 29

1 compelled to expand the pool of resources to remedy a constitutional violation, Peralta v.

2 Dillard, 744 F.3d 1076, 1083 (9th Cir.2014) (en banc). The role of the judiciary is a

3 limited one—restricted to assessing the constitutionality of government conduct. It is for

4 the elected officials, both legislative and executive, and their administrators to determine

5 this Country’s immigration policies and how to finance and implement them.

6

Accordingly, the Court turns to the question of whether or not the government’s

7 actions are constitutional. Defendants submit that they provide medical care, warmth,

8 sanitation, food, and water, and allow detainees to sleep. Defendants assert they provide

9 for detainees basic human needs pursuant to Border Patrol’s 2008 Hold Rooms and Short

10 Term Custody Policy (2008 Policy) and the National Standards on Transport, Escort,

11 Detention, and Search (TEDS standards).

12

The Court accepts for purposes of this preliminary injunction that these guidelines,

13 the 2008 Policy and TEDS, provide for constitutional conditions of confinement, which

14 Defendants assert is the status quo. Plaintiffs have presented persuasive evidence that the

15 basic human needs of detainees are not being met pursuant to the current practices being

16 implemented by Defendants pursuant to these guidelines. The Court preliminarily orders

17 full and immediate compliance with these guidelines, with the clarification that the

18 guideline requiring Defendants to give clean bedding to detainees includes mats for

19 detentions exceeding 12 hours.

20

C. Unconstitutional Conditions of Confinement

21

“When the State takes a person into custody and holds him there against his will,

22 the Constitution imposes upon it a corresponding duty to assume some responsibility for

23 his safety and general well-being: Under this rationale, the State must provide for a

24 detainee’s “basic human needs—e.g., food, clothing, shelter, medical care, and

25 reasonable safety—.”DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189,

26 199-200 (1989).

27

It is undisputed that Border Patrol holds the Plaintiffs as civil detainees, pursuant

28 to civil immigration laws, Zadvydas v. Davis, 533 U.S. 678, 690 (2001), therefore, they

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 7 of 29

1 are protected under the Fifth Amendment from being held without due process of law

2 under conditions that amount to punishment. Wong Wing v. United States, 163 U.S. 228,

3 237 (1896). Similarly, the Eighth Amendment’s prohibition against cruel and unusual

4 punishment requires prison officials to provide humane conditions of confinement,

5 including adequate food, clothing, shelter, sanitation, and medical care, and take

6 reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S.

7 825, 832 (1994). But to be liable under the Eighth Amendment, a prison official must act

8 with deliberate indifference to an inmate’s health or safety. Id. at 834. Conditions of

9 confinement that violate the Eighth Amendment necessarily violate the Fifth

10 Amendment, but the reverse is not necessarily true. In other words, Plaintiffs are

11 protected by both the Fifth and Eighth Amendments.

12

Because Plaintiffs are civil detainees and not prisoners, the Court applies the Fifth

13 Amendment, mirrored by the Fourteenth Amendment,4 Due Process Clause. Both the

14 Fifth and Fourteenth Amendments protect a non-convicted detainee from punishment

15 prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 534–35 (1979). “This

16 standard differs significantly from the standard relevant to convicted prisoners, who may

17 be subject to punishment so long as it does not violate the Eighth Amendment’s bar

18 against cruel and unusual punishment.” Pierce v. County of Orange, 526 F.3d 1190, 1205 19 (9th Cir. 2008). The “more protective” Fourteenth Amendment standard requires the

20 government to do more than provide minimal necessities, Jones v. Blanas, 393 F.3d 918, 21 931 (9th Cir. 2004),5 but, a detainee does not have a fundamental liberty interest under the

22

23

4 The Due Process Clause of the Fourteenth Amendment bars any State from

24

depriving any person of rights secured under the Bill of Rights (the first eight amendments). Therefore, the Court relies equally on cases applying the Fourteenth and

25 Fifth Amendment Due Process Clauses.

26

5 Overruled in part by Peralta, 744 F.3d at 1083 (holding monetary damages as a retroactive remedy is unavailable against an official capacity defendant who lacks

27

authority over budgeting decisions; applying subjective intent standard allowing fiscal considerations to factor into deliberate indifference analysis in Eighth Amendment case).

28

The government cannot assert a lack of resources defense against an injunction because it is prospective relief, and the government may be compelled to expand the pool of

resources to remedy a constitutional violation. Id..

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 8 of 29

1 Fourteenth Amendment to be free from discomfort, Bell, 441 U.S. at 537. Under the

2 Fourteenth Amendment, “due process requires that the nature and duration of

3 commitment bear some reasonable relation to the purpose for which the individual is

4 committed.” Jackson v. Indiana, 406 U.S. 715, 738, (1972).

5

To evaluate the constitutionality of a pretrial detention condition, a district court

6 must determine whether those conditions amount to punishment of the detainee. Bell, 441 7 U.S. at 535; Pierce, 526 F.3d at 1205; Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir.

8 2004). For a particular governmental action to constitute punishment, (1) that action

9 must cause the detainee to suffer some harm or disability, and (2) amount to punishment.

10 Pierce, 526 F.3d at 1205 (quoting Bell, 441 U.S. at 538). To constitute punishment, the

11 governmental action must cause harm or disability that either significantly exceeds or is

12 independent of the inherent discomforts of confinement. Demery, 378 F.3d at 1030. In

13 the absence of evidence of express intent, a court may infer that the purpose of a

14 particular restriction or condition is punishment if the restriction or condition is not

15 reasonably related to a legitimate governmental objective or is excessive in relation to the

16 legitimate governmental objective. Pierce, 526 F.3d at 1205 (citing Bell, 441 U.S. at

17 539); Demery, 378 F.3d at 1028 (citing Bell, 441 at 538).

18

“Maintaining institutional security and preserving internal order and discipline are

19 essential goals that may require limitation or retraction of the retained constitutional

20 rights of both convicted prisoners and pretrial detainees.” Bell, 441 U.S. at 546; Pierce,

21 526 F.3d at 1205. In the absence of substantial evidence that indicates officials have

22 exaggerated their responses, courts should ordinarily defer to the expert judgment of

23 correction officials to determine whether detention restrictions or conditions are

24 reasonably related to maintaining security and order and operating the institution in a

25 manageable fashion. Bell, 441 U.S. at 540 n. 23.

26

A reasonable relationship between the governmental objective and the challenged

27 condition does not require an “exact fit,” proof that the policy in fact advances the

28 legitimate governmental objective, or even that it is the “least restrictive alternative.”

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 9 of 29

1 Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002). However, the correction

2 official must have reasonably thought that the policy would advance a legitimate

3 governmental objective. Id. The relevant question is whether the official’s judgment was

4 rational, that is whether the Defendants might reasonably have thought that their policies

5 and practices would advance legitimate interests. Id. at 1046 (citing Mauro v. Arpaio, 6 188 F.3d 1054, 1060 (9th Cir. 1999)).

7

In summary, a condition of confinement for an inmate who has not been convicted

8 violates the Fifth and Fourteenth Amendments if it imposes some harm to the detainee

9 that significantly exceeds or is independent of the inherent discomforts of confinement

10 and is not reasonably related to a legitimate governmental objective or is excessive in

11 relation to the legitimate governmental objective. Kingsley v. Hendrickson, 135 S. Ct.

12 2466, 2473-74 (2015). Under the Fourteenth Amendment, the Court makes an objective

13 assessment whether there is a reasonable relationship between the government’s conduct

14 and a legitimate purpose. Id. at 2469. This is the measurement for harm relevant for

15 assessing the merits of Plaintiffs’ constitutional claims that the conditions of confinement

16 are punitive.

17

Importantly, the Court notes that Plaintiffs are not pretrial detainees and that the

18 civil nature of their confinement provides an important gloss on the meaning of

19 “punitive” in the context of their confinement. Because they are detained under civil,

20 rather than criminal, process, they are most decidedly entitled to “more considerate

21 treatment” than those who are criminally detained. Cf. Estelle v. Gamble, 429 U.S. 97,

22 104, (1976); Youngberg v. Romeo, 457 U.S. 307, 321–22, (1982). In this way, decisions

23 defining the constitutional rights of prisoners establish a floor for the constitutional rights 24 of the Plaintiffs. Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir. 2012) (citations omitted).

25 Therefore, the Court should presume the Plaintiffs are being subjected to punishment if

26 they are confined in conditions identical to, similar to, or more restrictive than those

27 under which the criminally convicted are held. See Sharp v. Weston, 233 F.3d 1166, 28 1172–73(9th Cir. 2000) (finding that Youngberg required that individuals civilly confined

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 10 of 29

1 at a commitment center receive “more considerate” treatment than inmates at the

2 correctional center in which the commitment center was located). Similarly, “[i]f pretrial

3 detainees cannot be punished because they have not yet been convicted, [citing Bell ],

4 then [civil] detainees cannot be subjected to conditions of confinement substantially

5 worse than they would face upon commitment.” Lynch v. Baxley, 744 F.2d 1452, 1461 6 (9th Cir. 1984). “Or, to put it more colorfully, purgatory cannot be worse than hell.”

7 Jones, 393 F.3d at 933.

8

This is precisely the case here. Assistant Chief Patrol Agent for the Tucson

9 Sector, George Allen, admitted, when this Court asked him to compare the conditions of

10 confinement at Tucson Sector Border Patrol stations with those afforded criminal

11 detainees at the Santa Cruz County jail, that in jail, detainees have a bed, with blankets,

12 clean clothing, showers, toothbrushes and toothpaste, warm meals, and an opportunity for

13 uninterrupted sleep. Likewise, the conditions of confinement for civil immigration

14 detainees improve once they are transferred from Border Patrol holding cells to detention

15 centers operated by the United States Marshals.

16

D. Discussion

17

The Tucson Sector stations are designed for short-term civil detention for

18 processing of immigrant detainees for transfer to Immigration and Customs Enforcement

19 (ICE) for civil immigration removal proceedings or Enforcement and Removal Office

20 (ERO) for juvenile custody determinations, to the United States Marshal for prosecution,

21 or for repatriation. (Allen Decl. ¶ 7.) There is no dispute that upon transfer to detention

22 by ICE, ERO or the United States Marshal affords conditions of confinement like those

23 found in the county jails where detainees have beds, blankets, clean clothing, showers,

24 personal hygiene items like toothbrushes, etc., hot meals, and the opportunity to sleep

25 uninterrupted.

26

Defendants argue the constitutionality of the conditions of confinement in the

27 Border Patrol stations must be assessed with due consideration given to the nature,

28 purpose, and duration, of an individual’s time in a Border Patrol station.” (Response at

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 11 of 29

1 24.) “[B]order Patrol stations are twenty-four hour operations, and in fact a significant

2 number of individuals who are detained in Border Patrol stations are apprehended during

3 the evening and night time hours.” Id. Defendants assert that providing sleeping

4 facilities and turning off lights would require structural changes at the facilities, create

5 safety risks, and impede its purpose to provide 24-7 immigration processing. Id. at 24-

6 25, see also: (Allen Decl. ¶¶ 46-47; Bryce Decl. ¶¶ 100-02; Skipworth Decl. ¶¶ 153;

7 Harber Decl. ¶ 65.) Accordingly, the hold rooms are not designed for sleeping and,

8 therefore, have no beds. (MPI, Ex. 81:Hold Room Policy (sealed) (Doc. 193)).

9

Assistant Chief Allen explains that Border Patrol processing begins in the field,

10 but on arrival at the detention facility intake begins in the “sally port” where detainees’

11 outer-clothing is removed for security reasons, (Allen Decl. ¶ 1-4), leaving detainees

12 without sweatshirts, jackets, or second layers of clothing for warmth. Detainees are

13 placed into group-holding rooms based on age, gender, family units, or criminal suspects.

14 Id. ¶ 4. Processing consists of obtaining biographical information and biometrics and

15 submitting this information through the e3Nex Generation Identification system to

16 determine prior criminal and immigration arrests. Id. ¶ 5. Fully processing a detainee

17 includes preparing an arrest report, immigration processing, service of immigration

18 forms, consular notifications, and communication with family members and attorneys as

19 appropriate. Id. If uninterrupted and if there is no remarkable criminal or immigration

20 history, processing would take between two and two and one-half hours. Id.

21

But there are interruptions, which can be caused by a large number of prior

22 apprehensions and the criminal background of the detainees awaiting processing, the

23 need to dispense meals, medical or health care, to arrange consular communications,

24 phone calls to family members or attorneys, to conduct investigations, and computer

25 system outages. Id. Evidence at the hearing revealed that detention in Border Patrol

26 holding rooms is also extended because of delays by the receiving agencies ICE, ERO,

27 and the United States Marshal in accepting the Border Patrol transfers. See also (Allen

28 Decl. ¶ 9.)

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 12 of 29

1

Discovery in this case reflects that between June 10, 2015 and September 28,

2 2015, only about 3,000 of approximately 17,000 detainees were processed out of Border

3 Patrol station detention within 12 hours. (Gaston Decl. ¶ 20.) Of these 17,000 detainees,

4 8,644 people were held at Border Patrol stations up to 23 hours, 6,807 were held up to 47

5 hours, 1,207 were held up to 71 hours, and 476 were held for 72 hours or more.

6 (Response at 6.) Defendants’ expert, Diane Skipworth, indicated that based on her

7 review “BP tries diligently to process detainees promptly, and generally does so within

8 24 hours.” (Skipworth Decl. ¶ 154.) Defendants’ other expert, Richard Bryce, believes

9 that nearly all detainees were processed within 48 hours. (Bryce Decl. ¶ 38.)

10

The conditions of confinement challenged by the Plaintiffs include: 1) deprivation

11 of sleep; 2) failure to provide a safe and sanitary environment, including potable water; 3)

12 inadequate and insufficient food, and 6) inadequate medical screening and care.

13

1. Success on the Merits

14

Sleeping:

15

“Detention facilities (and prisons) must provide detainees held overnight with beds

16 and mattresses. The absence of either violates detainees’ due process rights.” (MPI at 10 17 (citing Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989); accord 18 Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3rd Cir. 1986)). “Indeed, the use of

19 floor mattresses—i.e.., mattresses without bed frames—is unconstitutional ‘without

20 regard to the number of days a prisoner is so confined.’” Id. (quoting Lareau v. Manson,

21 651 F.2d 96, 105 (2nd Cir. 1981)).

22

According to Plaintiffs’ analysis of the Defendants’ e3DM data system,6 “out of

23 16,992 detainees between June 10 and September 28, 2015, only 122 were recorded to

24 have received a mat.” (Vail Decl. ¶ 62 (citing Gaston Decl. ¶ 25.) The remainder of

25 detainees’ bedding needs was met with a Mylar sheet/blanket. The 2008 Policy provides

26

27

6 This is an electronic data system designed by Defendants to track each action taken by Border Patrol for each detainee, including the time of arrest; check-in and out at

28

the station; when meals are served, mats are provided, personal hygiene items are delivered, health care is administered, and when a transfer is made to a hospital facility,

etc.

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 13 of 29

1 that “detainees requiring bedding will be given clean bedding.” (Ex. 87 at 000330.)

2 Under TEDS, only juveniles receive mats. (Ex. 95: TEDS at 000634). Adults get clean

3 blankets, which are Mylar sheets, upon request when available. Id. Video releases by

4 Defendants reflect overcrowded hold rooms with wall to wall detainees lying cocooned in

5 Mylar blankets and adjacent empty cells with some of the empty cells having mattresses

6 piled high. (Coles Decl. ¶ 37.) Plaintiffs found no mats in videos from the Casa Grande,

7 Willcox, Sonoita, and the Brian A. Terry stations. (Coles Decl. ¶ 37.)

8

Plaintiffs add that the harshness caused by the lack of mats and the inadequacy of

9 the Mylar blankets is compounded by the Defendants’ practices of keeping holding-cell

10 lights turned on 24-7, feeding one of the three regular hot meals to detainees at 4:00 a.m.,

11 moving detainees in and out of holding cells throughout the night for processing,

12 overcrowding cells which causes people to lie cramped together and next to toilet

13 facilities or to sit or stand up, and because the hard concrete floors and benches retain the 14 cold caused by low thermostat temperatures and make it too hard and cold to sleep. 7

15

Plaintiffs attest that there are prison standards for short-term detentions, defined as

16 being less than 10 hours, which require at least 25 square feet of unencumbered space per

17 occupant. (Vail Decl. ¶ 42). Prison standards for detaining two to 64 occupants requires

18 25 square feet of unencumbered space per occupant, id. ¶ 44, and 35 square feet when

19 confinement exceeds ten hours per day, id. (relying on American Correctional

20 Association (ACA) CORE Jail Standards, United States Department of Justice National

21

22

7 Toussaint v. McCarthy, 597 F. Supp. 1388, 1409-10 (N.D. Calif. 1984) (noise

23

occurring every night, often all night interrupting or preventing sleep gives rise to due process claim), reversed on other grounds; Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir.

24

1996) (no penological justification for psychological harm caused by living in constant illumination), amended on other grounds; King v. Frank, 328 F. Supp.2d 940, 946-47

25

(W.D. Wis. 2004) (constant illumination leading to sleep deprivation may violate Eighth Amendment); Bowers v. City of Philadelphia, 2007 WL 219651 (E.D. Pa. Jan. 25 2007)

26

(unconstitutional where overcrowding caused detainees to sleep overlapping one another and on every inch of concrete floors with heads next to toilets and on metal benches);

27

United States v. Wilson, 344 F. App’x 134, 137, 143 (6th Cir. 2009) (cells with only concrete bench and floors stated Eighth Amendment claim for subjection to cold); Knop

28

v. Johnson, 667 F. Supp. 467, 475-77 (W.D. Mich. 1987) (clothing must be minimally adequate for conditions of confinement); Henderson v. DeRobertis, 940 F.2d 1055, 1059

(7th Cir. 1991) (same).

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 14 of 29

1 Institute of Corrections (NIC), and United Nations Body of Principles for the Protection

2 of all Persons Under any form of Detention or Prison).

3

In comparison, the capacity numbers for the border patrol holding cells is

4 calculated as 35 square feet for the first detainee, plus an additional seven square feet for

5 each additional detainee. Id. ¶ 41, ¶ 29 (citing 2009 Border Patrol Handbook). At the

6 evidentiary hearing, the evidence reflected that holding-cell occupancy limits are

7 established for detainees sitting up, and the problem of overcrowding is compounded by

8 the need to lie down and would be further compounded if detainees were given mats to

9 lie down in the holding cells. Detainees need to lie down to sleep because they are

10 detained at the Border Patrol stations in excess of 12 hours. The Court finds the holding-

11 cell capacity numbers cannot accommodate the number of detainees being detained

12 longer than twelve hours because detention of this duration requires them to lie down to

13 sleep rather than sit up.

14

Defendants’ expert, Richard Bryce, objects to Plaintiffs’ comparison between

15 Border Patrol short-term immigration processing facilities and detention facilities like

16 prisons and jails. (Bryce Decl. ¶ 32.) He opines the Border Patrol facilities are on par

17 with short-term [prison] holding cells, id. ¶ 35, of the type which is used during the

18 booking process in jail facilities. He explains that “[n]o other law enforcement agency in

19 the United States faces the unique issue of populations subject to fluctuation based on the

20 entry patterns of aliens.” Id. The processing time depends on immigration patterns and

21 the characteristics of those apprehended, but generally he believes that nearly all

22 detainees are processed within 48 hours. Id. ¶ 38.

23

The Court rejects Bryce’s suggestion to allow conditions of confinement

24 appropriate for holding cells used at a jail facility for its booking process, which does

25 take hours instead of days. The processing being conducted at the Border Patrol stations,

26 whether or not it is being done for booking purposes, takes days (48 hours).

27

It is undisputed that the holding-cells are illuminated 24-7 for security reasons and

28 there is constant coming and going during the night, which Defendants assert is

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 15 of 29

1 necessary, given the very essence of the facility is to provide 24-7 immigration

2 processing. The Court accepts Defendants’ assertion that the holding cells need to be

3 illuminated for security where security cameras are not technologically capable of

4 recording in dimmed light. In terms of interruptions of sleep, the Court finds no security

5 reason nor any reason related to the processing activities being conducted at these

6 facilities to wake up detainees by scheduling one of the three burrito meals at 4:00 a.m.

7

As to warmth, without mats, the Mylar sheets are the only barriers between the

8 detainee and the cold, including the cold concrete floors and benches in the holding cells

9 upon which they are forced to lie. Defendants admit that the Mylar sheets do not provide

10 insulation but merely prevent evaporation so that when wrapped around the body the

11 Mylar blankets reflect approximately 80% of body heat back to the body and provide a

12 barrier between the body and air currents or drafts. (Skipworth Decl. ¶ 150.) The efficacy

13 of the Mylar blanket depends on comfortable room temperatures being maintained at

14 Border Patrol stations. Id.

15

Defendants report holding cell temperatures are set between 71 and 74 degrees,

16 (Response at 10 (citing Allen Decl ¶¶ 13-14; Skipworth Decl. ¶¶ 35, 133-134, 137-141,

17 147-48 (citing Ex. 2) Bryce Decl. ¶¶ 82, 83 (citing Ex. 3); Harber Decl. ¶ 66 (citing Ex.

18 4), and at the hearing the evidence reflected a variability of 2 degrees up or down.

19 Defendants assert the acceptable institutional standard is 68 to 80 degrees. (Skipworth

20 Decl. ¶ 133 (citing ANSI and ASHRAE standards). In addition to room temperature,

21 body heat is affected by the sedentary nature of the detention and whether or not

22 detainees have the ability to move around can be a factor in warmth. The Court

23 recognizes that Plaintiffs have a constitutional right to clothing that is at least minimally

24 adequate for the conditions of confinement, Knop v. Johnson, 66 F. Supp. 467, 475-77

25 (Mich. 1987), but when mats are provided for detentions exceeding 12 hours the analysis

26 regarding adequate clothing and comfortable room temperature may change. As of now,

27 the Court will require Defendants to continue monitoring cell temperatures.

28

The Court finds that the law and the facts clearly favor Plaintiffs’ position that

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 16 of 29

1 Defendants are violating Plaintiffs’ constitutional right to sleep. Preliminary, the Court

2 orders that clean bedding, which Defendants assert they are providing to all detainees,

3 must include a mat and a Mylar blanket for all detainees being held longer than 12 hours.

4

Sanitation:

5

“A sanitary environment is a basic human need that a penal institution must

6 provide for all inmates,” Toussaint, 597 F.Supp. at 1411, which includes a “right to

7 personal hygiene supplies such as toothbrushes and soap,” Keenan v. Hall, 83 F.3d 1083, 8 1091 (9th Cir. 1996), and “sanitary napkins for female prisoners,” Atkins v. County of

9 Orange, 372 F. Supp.2d 377, 406 (S.D.N.Y 2005). See also Dawson v Kendrick, 527 F.

10 Supp. 1252, 1288-89 (S.D.W.Va. 1981) (failing to provide clean bedding, towels,

11 clothing and sanitary mattresses, as well as toilet articles including soap, razors, combs,

12 toothpaste, toilet paper, access to a mirror and sanitary napkins for women constitutes

13 denial of sanitary living conditions). Sanitation includes “the control of vermin and

14 insects, food preparation, medical facilities, lavatories and showers, clean places for

15 eating, sleeping, and working.” Rhodes v. Chapman, 452 U.S. 337, 364 (1981).

16

Plaintiffs offer the opinion of Robert Powitz, a practicing forensic sanitarian, who

17 has expertise in correctional public health. He opines that Defendants do not comply

18 with their own Border Patrol standards, which do not comply with national standards for

19 correctional facilities with respect to hygiene. Id. ¶ 18-22 (relying on Performance-Based

20 Standards for Adult Local Detention Facilities (ALDF), American Public Health

21 Association Standards for health Services in Correctional Institutions, and U.S. Depart. of

22 Justice ICE Detention Standards).

23

He personally observed holding rooms with floors, walls, benches, drains, toilets,

24 sinks, stalls, and other fixtures—all of which were badly soiled. Id. ¶ 23. ICE detention

25 standards require garbage and refuse be collected and removed from common areas daily.

26 Id. ¶ 25. The hold rooms lacked trash receptacles, id. ¶ 27, and toilet stalls lacked waste

27 receptacles for sanitary napkins, diapers, and other bathroom waste. Id. ¶ 28. Cleaning

28 supplies did not appear to be segregated so as to prevent interchangeable use in toilet

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 17 of 29

1 areas and food storage or sleeping areas. Id. ¶ 88. Cleaning crews did not appear to

2 clean and sanitize common-touch points in detainee areas. Id. ¶ 89. He concluded that

3 cleaning was not sufficient to sanitize the holding cells. Id. ¶¶ 88,89. He explains that

4 exposure to garbage increases the risk of disease and presence of vermin, and is

5 psychologically stressful. Blood-born transmission can occur from exposure to diapers

6 and sanitary napkins. Id. ¶ 31.

7

According to Powitz, the CORE prison standard 4-4137 requires one toilet for

8 every twelve male prisoners and one toilet for every eight female detainees. See also

9 TEDS § I.A.7. He reports that “in most cases, the number of toilets in a hold room was

10 inadequate for the contemplated occupancy numbers posted or produced by Defendants.”

11 Id. ¶ 51. One large hold room at Nogales station, with capacity up to 88, had one

12 working toilet and one non-flushing toilet. Id. ¶ 52, see also ¶¶ 83-86 (relying on Border 13 Patrol logs8 reflecting long-term out of order sinks and toilets supporting his conclusion

14 that there is no regular maintenance program and policy), see also (Vail Decl. 51; Powitz

15 Decl. ¶ 52) (some rooms where over 40 detainees were forced to share one toilet).

16

Powitz explains that the toilet is a sink/toilet combination fixture, with the sink

17 fixture on top of the toilet and the water spigot is designed for use as a water fountain.

18 Id. ¶ 38. This explains the lack of hot water and why the fixtures were not capable of

19 providing an uninterrupted water flow of at least ten seconds, which is the minimal flow

20 required for adequate hand washing. Id. ¶ 64. This also creates a potential for

21 contamination from fecal matter and saliva. Id. ¶ 39. Plaintiffs complain that the

22 toilet/sink combination system for dispensing drinking water creates a potable water

23 problem. At the Tucson and Nogales stations, 5-gallon Igloo water coolers are placed in

24 many hold cells, without cups and there are no sinks, kitchens, or any other means at

25 these facilities to properly clean the Igloo containers. Id. ¶ 73. One video recorded

26

27

8 The Court is not clear on whether these logs are part of the e3DM data system or

28

were designed for purposes of conducting discovery in this case. Regardless, the Court will rely on them for the purposes of monitoring compliance with TEDS standards for the

working sinks and toilets per detainee.

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 18 of 29

1 detainees all drinking from the same one-gallon water jug because cups were not

2 provided. Id. ¶ 75.

3

A person who has been trudging across the Arizona desert will likely arrive at a

4 detention station dirty and in need of a shower, but Plaintiffs report that only two stations,

5 Nogales and Tucson, have shower facilities, and these were sparsely used, generally for

6 detainees who have scabies. (Vail Decl. ¶ 116.) The Defendants e3DM data system

7 showed that only 115 detainees were given showers out of the 16,992 held between June

8 10 and September 28, 2015. Of those 115 showers, 20 reportedly occurred at Casa

9 Grande station where Border Patrol agents said no shower facilities existed. Id.

10

Plaintiffs tender first-hand accounts from detainees that there were no sanitary

11 napkins, or available diapers. (Vail Decl. ¶ 125.) The Defendants e3DM data confirms

12 that personal hygiene items, including those necessary for feminine hygiene and dental

13 care, were routinely denied. (Powitz Decl. ¶ 60.)

14

Defendants offer explanations to present a different picture. They report the

15 holding cells are cleaned twice a day, except for the Casa Grande station which is cleaned

16 only once a day, (Allen Decl. ¶¶ 29-30), and admit there were problems with the Casa

17 Grande custodial services, but assert that things are being rectified, (Allen Decl. ¶¶ 29-

18 30).

19

Defendants also report that in 2015, they began placing trash receptacles in the

20 holding cells, id. ¶ 31, whereas previously “there were no trashcans in the hold rooms for

21 safety reasons,” (Response to Motion for Expedited Discovery, Padilla Decl. ¶ 14 (Doc.

22 39-1)). Defendants admit that dirty toilet paper is on the floor next to the toilets rather

23 than flushed because detainees are from countries where plumbing cannot tolerate

24 flushing toilet paper and instead it is common practice to dispose of it in trash

25 receptacles. Id. ¶ 32. This is no excuse. Instead, it suggests that toilet receptacles are

26 especially important.

27

Cleanliness is monitored by walk-throughs of the holding cells during each shift

28 turnover, and the review is logged in e3DM. Id. ¶36. Defendants’ sanitarian, Skipworth,

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 19 of 29

1 inspected the Tucson station, reviewed Defendants’ contracts with cleaning companies,

2 and it was her opinion that the facility is kept clean and sanitary. (Skipworth Decl. ¶¶ 36-

3 67 (citing TEDS)). According to her, the ACA Plumbing Fixture Standard (one toilet

4 per 12 male detainees; one toilet per 8 female detainees) is met. Id. ¶ 69. Personal

5 hygiene items are regularly dispensed, id. ¶¶ 78-91, and children had toys and games and

6 were watching television in the Tucson station, id. ¶ 87

7

Defendants assert soap has been available to detainees upon request and in 2014, it

8 was decided to fit the hold rooms with soap dispensers. Due to “security, functionality

9 and durability” concerns, these dispensers had to be specially fabricated. The process of

10 installing them in hold rooms was completed in 2015. Id. ¶ 34. The cleaning services

11 are now responsible for filling the dispensers.

12

Defendants assert that if the water fountain in the cell is inoperable, the five gallon

13 water coolers provide a sufficient source of drinking water, and disposable cups are

14 provided. (Allen Decl. ¶ 44 (citing TEDS)). They do not explain how the Igloo water

15 coolers are kept clean and sanitary. Skipworth’s inspection found compliance with

16 TEDS: “functioning drinking fountains or clean drinking water along with clean drinking

17 cups must always be available to detainees.” (Skipworth Decl. ¶¶ 126-131.) Defendants

18 explain the one-gallon jug seen in the video is the container of water, which was

19 distributed in the field at the time of apprehension—some stations allow detainees to

20 retain these jugs of water, and detainees choose to share them even though other sources

21 of water are available. (Allen Decl. ¶ 44.) The video did not, however, reflect another

22 water source.

23

The evidence reflects that Defendants are making ongoing efforts to rectify

24 personal hygiene and sanitation problems, which in large part appear to be

25 noncompliance issues. Preliminarily, the Court will order compliance monitoring to

26 ensure detainees have access to working toilets and sinks, soap, toilet paper, garbage

27 receptacles, tooth brushes and toothpaste, feminine hygiene items, baby food, diapers,

28 and clean drinking water.

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 20 of 29

1

The Court turns to the admitted lack of shower facilities and lack of access to hot

2 running water. Jail standards require access to showers and washbasins with temperature

3 controlled hot and cold running water 24 hours per day, (Vail Decl. ¶ 121), with daily

4 shows being available to general population jail-inmates, id. ¶ 123.

5

Defendants assert that the lack of shower accommodations is not a problem

6 because detainees are transferred when approaching 72 hours, and TEDS only requires

7 that reasonable efforts be made to provide showers to those approaching 72 hour

8 detentions. Id. ¶ 33. Like Defendants’ failure to provide for the necessity of sleeping

9 when detention exceeds 12 hours, Defendants fail to recognize the basic human need to

10 wash during these detentions. “The more basic the particular need, the shorter the time it

11 can be withheld.” Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir. 1982). So for

12 example, it is doubtful that any circumstance would permit a denial of access to

13 emergency medical care, but less critical needs may be denied for reasonable periods of

14 time when warranted by exceptional circumstances such as an emergency or disciplinary 15 need. Id. (citing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)). The Court’s task

16 is to “determine whether a challenged punishment comports with human dignity,”

17 Furman v. Georgia, 408 U.S. 238, 282 (1972) (BRENNAN, J., concurring), and requires

18 careful scrutiny of challenged conditions and application of realistic yet humane

19 standards, Rhodes, 452 U.S. at 361.

20

It has been held to be self-evident that adequate and functional plumbing

21 providing neither too hot nor too cold water is necessary so as to not discourage prisoners

22 from taking showers, which would result in an increased risk of skin problems and

23 transmission of disease from person to person and a foul and malodorous environment,

24 Benjamin v. Fraser, 161 F. Supp.2d 151, 171 (S.D. N.Y. 2001). Nevertheless, courts are

25 extremely reluctant to find constitutional violations based on temporary deprivations of

26 personal hygiene and grooming items. Id. at 175 (citations omitted). Additionally, courts

27 have found that when other materials are made available for a prisoner to clean himself, a 28 constitutional violation has been averted. Shakka v. Smith, 71 F.3d 162, 168 (4th Cir.

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 21 of 29

1 1995).

2

This Court does not mean to suggest that a lack of daily showers for a few days

3 would necessarily rise to the level of a constitutional violation in a prison setting, see e.g.

4 Griffin v. Southern Health Partners, Inc., 2013 WL 530841, *9 (W.D. Kentucky,

5 February 11, 2013) (finding six day, eight day, and 72 hour deprivation of showers and

6 being subjected to unsanitary conditions insufficient to violate the constitution), but

7 Border Patrol detainees are not pretrial detainees or prisoners. They are civil detainees

8 who are being denied the ability to wash or clean themselves for several days.

9 Transferring them when detention approaches 72 hours does not solve this problem.

10 Given the admitted lack of showers, the Court preliminarily finds that Defendants need

11 only provide some means or materials for washing and/or maintaining personal hygiene

12 when detainees are held longer than 12 hours.

13

Given the evidence of noncompliance related to conditions of sanitation,

14 compliance monitoring is warranted. Plaintiffs are likely to prevail on this claim unless

15 there is full compliance by Defendants with the guidelines for sanitation and there are

16 materials available for detainees held longer than 12 hours to clean themselves.

17

Food

18

It is undisputed that “[p]rison officials are ‘obligt[ed] to provide inmates with

19 nutritionally adequate meals on a regular basis.’” (MPI at 16 (quoting Foster v. Runnels, 20 554 F.3d 807, 816 (9th Cir. 2009)). Prison food does not need to be tasty or aesthetically

21 pleasing, it must simply be adequate to maintain health. (Response at 22 (citing Keenan 22 v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996)).

23

Detainees receive a diet of burritos (bean, beef, or beef and bean (330 to 360

24 calories), cheese or peanut-butter filled crackers (200 calories), and boxes of fruit juice

25 (60 calories). (Vail Decl. ¶ 90); (Allen Decl. ¶ 37). Snacks include cookies, cereal bars,

26 graham crackers, and goldfish crackers. (Allen Decl. 38.) There is baby food and

27 formula. (Vail Decl. ¶ 91.) There is no evidence in the Defendants’ data base of any

28 fluctuation in this regimen except for pregnant and nursing women. Id. ¶ 92.

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 22 of 29

1

There are no food preparation areas in the detention stations. The burritos are

2 heated up in microwaves or warming trays. Id. ¶ 93. The Defendants’ e3DM data

3 system reflects that the average time between meals/burritos is 7.336 hours, and at the

4 Tucson station the average time between meals/burritos is 8.239 hours. Id. ¶ 94.

5

According to Defendants, this diet adequately satisfies the basic nutritional needs

6 of detainees. (Skipworth Decl. ¶ 122.) Skipworth believes that food preparation is

7 performed under safe and sanitary conditions, with food being commercially prepared

8 and packaged, and agents heating it to adequate temperatures. (Skipworth Decl. ¶¶ 109-

9 112.)

10

The CORE jail standards require: three meals, including at least two hot meals to

11 be served at regular times during each 24 hour period, with no more than 14 hours

12 between the evening meal and breakfast. Id. ¶¶ 96-97. TEDS mirrors this, with regularly

13 scheduled meal times and snacks to be provided between regularly scheduled meal times.

14 Two meals must be hot. Juveniles and pregnant detainees are to be offered a snack upon

15 arrival and meals at least every six hours thereafter. Juveniles, pregnant and nursing

16 detainees must have access to snacks, milk and juice. Id. ¶¶ 98-100.

17

According to Defendants, meals are served 3 times per day at 4:00 a.m., 12:00

18 p.m., and 8:00 p.m.; snacks are served three times per day at 8:00 a.m., 4:00 p.m., and

19 12:00 a.m. (Allen Decl. ¶ 38.) This creates approximately an eight-hour interval

20 between the evening burrito meal and the burrito breakfast, and eight-hour intervals

21 between the three regularly served burrito meals. To ensure that no more than four hours

22 elapses between eating times, an internal auditing function exists within the e3DM

23 system that warns agents when a detainee is approaching the timelines. Id. ¶ 38. When

24 an individual is scheduled for transfer, “it is incumbent on each individual station to

25 identify whether the transfer will cause a detainee to exceed the four hour limit to provide

26 a snack and juice or burrito, accordingly. Id. ¶ 39.

27

With the exception of changing the 4:00 a.m. meal schedule to accommodate

28 sleeping, the question is one of compliance with TEDS. Preliminarily, compliance

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 23 of 29

1 monitoring is warranted.

2

Medical Care:

3

“Denying, delaying, or mismanaging intake screening violates the Constitution.

4 (MPI at 18 (citing Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1188-90 (9th Cir.

5 2002); Lareau v. Manson, 651 F.2d 96, 109 (2nd Cir. 1981)). Defendants agree that the

6 Constitution does require them to “‘provide a system of ready access to adequate medical

7 care.’” (Response at 13 (quoting Madrid v. Gomez, 889 F. Supp. 1146, 1554 (N.D. Calif.

8 1995) (citing Hoptowit, 682 F.2d at 1253; Casey v. Lewis, 834 F. Supp. 1477, 1545 (Ariz.

9 1993)). The parties are, however, at odds regarding the boundaries of this constitutional

10 right.

11

Plaintiffs challenge the adequacy of Defendants’ intake screening. (MPI at 18

12 (relying on Graves v. Arpaio, 48 F. Supp. 3d 1318, 1340-1344 (Ariz. 2014) and Madrid,

13 889 F. Supp. at 1257)). They bring the following challenges: 1) screening is performed

14 by border patrol agents, not doctors, nurses, or other qualified or specially trained

15 personnel; 2) Defendants do not maintain a medical treatment program capable of

16 responding to emergencies that arise after detainees are placed in holding cells because

17 they do not have medical staff on site, and 3) the practice of confiscating incoming

18 detainees’ medication creates impermissible and heightened risk that detainees will

19 experience a medical emergency. (MPI at 18-20.)

20

Defendants assert that TEDS provides a system of ready access to adequate

21 medical care. Before detainees are placed into a Border Patrol hold room, a Border

22 Patrol agent “must ask detainees about and visually inspect for any sign of injury, illness,

23 or physical or mental health concerns and question . . . about any prescription

24 medications.” (Harber Decl. ¶ 26-32 (citing TEDS § 4.3, 4.10)) but see also (Harber

25 Decl. ¶ 30, Attachment B: Medical Screening Form used by agents) (missing questions

26 required about physical and mental health concerns, and prescription medications)).

27 Observed or reported injuries or illnesses should be communicated to a supervisor,

28 documented in the appropriate electronic system, and appropriate medical care should be

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 24 of 29

1 provided or sought in a timely manner. Id. Treatment plans and medication accompany

2 detainees when they are transferred or discharged. TEDS § 4.10.

3

Defendants assert that they either have EMTs who can treat emergencies at the

4 detention centers, (Harber Decl. ¶ 33), or they routinely transfer detainees to hospitals for

5 emergency care, id. ¶¶ 29, 34.)

6

Under TEDS prescription medication may be used by incoming detainees, if it is

7 in a properly identified container with the specific dosage indicated, but non-U.S.

8 prescribed medication must be validated by a medical professional, or the detainee should

9 be taken in a timely manner to a medical practitioner to obtain an equivalent United

10 States prescription. TEDS § 4.10. It is standard practice to send detainees to the hospital

11 for appropriate care and prescriptions for medication by U.S. doctors. (Allen Decl. ¶ 22;

12 Harber Decl. ¶ 34.)

13

Plaintiffs’ expert, Joe Goldenson, M.D., has extensive experience in jail and state

14 correctional facilities. (Goldenson Decl. ¶¶ 1-3.) He based his opinion on declarations of

15 individual Plaintiffs, review of the e3DM data system, and depositions by Vail and

16 Powitz. Id. ¶¶ 8-9. He found there was no evidence of any formalized screening process

17 being carried out by agents at the detention centers. Id. ¶¶ 19-23. The e3DM data

18 system reflects approximately 527 incidents of medical treatment being provided to

19 detainees out of the approximately 17,000 detained individuals for the period of time

20 from June 10 to September 28, 2015. Id. ¶ 42.

21

He explains there are two components of screening: 1) immediate medical triage

22 to determine if there are any issues that would preclude acceptance into the facility and 2)

23 a more thorough medical and mental health screening. Id. ¶ 13. He explains that in some

24 facilities, the first triage-step is performed upon entry into the facility, with the more

25 thorough screening done soon after the person is accepted into the facility. Id. ¶ 14. The

26 screening includes both a face-to-face interview using a structured questionnaire and,

27 whenever possible, a review of the individual’s prior medical record. The questionnaire

28 covers the detainee’s current problems and medications; past history, including

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 25 of 29

1 hospitalizations; mental health history, including current or past suicidal ideation;

2 symptoms of chronic illness; medication and/or food allergies, and dental problems.

3 Female detainees are asked about current and past history related to pregnancy and date

4 of last menstrual period. Id.

5

Whenever possible, intake screening is performed by qualified health

6 professionals, but in smaller detention settings, where health staff is not present at times,

7 specially trained custodial staff conduct the screening. Id. ¶ 15. This staff should be

8 trained, including on-going training, on conducting medical screening, and there should

9 be procedures for officers to obtain guidance and direction from a health care

10 professional for problems beyond the scope of their training and experience. Id. ¶ 16. It

11 is important to record the information obtained during screening and have the records

12 accessible during detention so it can be provided to health care professionals as needed.

13 Id. ¶ 17.

14

Dr. Goldenson believes that field screening is not an adequate replacement for

15 intake screening because field screening is not done pursuant to a type of standardized

16 protocol or procedure that would suffice as “intake screening.” Id. ¶ 25, see also (Harber

17 Decl. ¶ 30, Attachment B: Medical Screening Form used by agents) (missing questions

18 required under TEDS about physical and mental health concerns, and prescription

19 medications).

20

Proper intake screening is critical to identifying newly arriving detainees with

21 urgent or emergent health care needs, who are suffering from potentially communicable

22 diseases which require isolation and enhanced disinfection processes, or to identify

23 continuity of care issues like medication or prescription needs, or to identify medical or

24 mental health conditions that require referrals. (Goldenson Decl. ¶28.) Dr. Goldenson

25 suggests detainees are high risk for medical problems because they have just crossed the

26 desert under extreme physical hardship, lacking in water and food, without access to

27 medication and medical supplies. Id. ¶¶ 31-39.)

28

The number of medical/hospital referrals, 527 out of approximately 17,000

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 26 of 29

1 detainees from June 10 to September 28, 2015, support Dr. Goldenson’s opinion,

2 especially when considered in the context of the TEDS requirement that all foreign

3 prescriptions be rewritten by U. S. doctors. The cursory medical screening performed at

4 the detention stations is problematic as the duration of detention lengthens because intake

5 screening becomes more important if it must be relied on for detention extending over

6 several days rather than for a few hours. Defendants are already using an intake

7 screening questionnaire, but it does not meet the TEDS standards because it fails to ask

8 about physical and mental health concerns and prescription medications. It also fails to

9 ask about pregnancy and whether a detainee is nursing. TEDS § 4.2. And, Defendants

10 do not know whether the screening form is being used at all the stations.

11

Preliminarily, the Court requires compliance with TEDS, including measures to

12 ensure the Medical Screening Form currently being used by Defendants at some stations

13 is used at all stations, and that the form asks questions to ensure compliance with TEDS

14 standards for screening and delivering medical care. Without this compliance, the Court

15 finds that Plaintiffs are likely to prevail on this constitutional claim.

16

2. Irreparable Harm

17

Plaintiffs have presented evidence of harm related to the conditions of

18 confinement, such as the physiological effects of sleep deprivation or constant discomfort

19 that comes from an inadequate food supply, or health risks related to exposure due to

20 contaminated water or unsanitary cells, or medical risks associated with being unable to

21 continue taking prescription medications or being exposed to communicable diseases. 22 These are the types of harm relevant to the 14th Amendment assessment of whether the

23 challenged conditions of confinement exceed or are independent of the inherent

24 discomforts of confinement and are not reasonably related to a legitimate government

25 objective, or are excessive in relation to legitimate government objectives.

26

For the purpose of assessing whether Plaintiffs are likely to suffer irreparable

27 harm in the absence of an injunction, this Court looks at the deprivation of constitutional

28 rights. If, like here, a court finds that plaintiffs are likely to succeed on the merits of their

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 27 of 29

1 constitutional claims, then “the deprivation of constitutional rights unquestionably

2 constitutes irreparable injury.” Melendres, 695 F.3d at 1002. This is because

3 “constitutional violations cannot be adequately remedied through damages and therefore

4 generally constitute irreparable harm.” Am. Trucking Ass’ns, Inc., 559 F.3d at 1059.

5

3. Balance of equities and Public Interest

6

Likewise, because the Court finds the Plaintiffs have established a likelihood of

7 success on the merits of their constitutional claims and that they are likely to suffer

8 irreparable harm without an injunction, all that remains is for Plaintiffs to persuade the

9 Court that the balance of equity and the public interest tips in favor of the injunction.

10 “Once a plaintiff shows that a constitutional claim is likely to succeed, the remaining

11 preliminary injunction factors weigh in favor of granting an injunction.” Vivid Entm’t

12 LLC, 65 F. Supp.2d at 1136 (citing Melendres, 695 F.3d at 1002; Klein, 584 F.3d at 1208.

13 “‘[I]t is always in the public interest to prevent the violation of a party’s constitutional

14 rights.’” Melendres, 695 F.3d at 1002 (quoting Sammarano, 303 F.3d at 974. The

15 government suffers no harm from an injunction that merely ends unconstitutional

16 practices and/or ensures that constitutional standards are implemented. Rodriguez, 715 17 F.3d at 1145 (citing cf. Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983) (INS cannot

18 assert harm in any legal sense by being enjoined from constitutional violations).

19

D. Conclusion

20

Defendants cannot sidestep reality by relying on the structural limitations of the

21 Border Patrol detention facilities, i.e., that they are not designed for sleeping. If anything,

22 this cuts against the 72-hour definition of short-term. If detainees are held long enough to

23 require them to sleep in these facilities, take regular meals, need showers, etc., then the

24 Defendants must provide conditions of confinement to meet these human needs. Where

25 there is no evidence of an express intent to punish, the Court may infer that the purpose

26 of the condition is punishment if it is not reasonably related to a legitimate governmental

27 objective or is excessive in relation to the legitimate governmental objective. The Court

28 finds that there is no objectively reasonable relationship between 24-7 immigration

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 28 of 29

1 processing or security and the conditions of confinement which Plaintiffs have

2 preliminary shown exist in the Tucson Sector Border Patrol stations related to sleeping,

3 sanitation, food, and medical care. Therefore, there is a likelihood of success on the

4 merits of Plaintiffs’ constitutional claims. The deprivation of a constitutional right

5 unquestionably constitutes irreparable injury. It is always in the public interest to prevent

6 the violation of a party’s constitutional rights, and the government suffers no harm from

7 an injunction that merely ends unconstitutional practices and/or ensures that

8 constitutional standards are implemented.

9

Accordingly,

10

IT IS ORDERED that the Motion for a Preliminary Injunction (Doc. 206) is

11 GRANTED as follows:

12

1. Clean bedding, which Defendants assert they are providing to all

13 detainees, must include a mat and a Mylar blanket for all detainees being held longer than

14 12 hours.

15

2. Personal hygiene needs of detainees held longer than 12 hours

16 include the need to wash or clean themselves.

17

3. Defendants shall implement the universal use of their Medical

18 Screening Form at all stations and ensure that the form questions reflect the TEDS

19 requirements for delivery of medical care to detainees.

20

4. Defendants shall monitor for compliance the following: availability

21 of working sinks and toilets and/or other materials sufficient to meet the personal hygiene

22 needs of detainees on a per cell per station basis; cell temperatures; cell sanitation and

23 cleanliness; delivery to detainees of bedding, including mats, personal hygiene items such

24 as toilet paper, toothbrushes and toothpaste, feminine hygiene items, baby food, diapers,

25 and meals.

26 / / /

27 / / /

28 / / /

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Case 4:15-cv-00250-DCB Document 244 Filed 11/18/16 Page 29 of 29

1

IT IS FURTHER ORDERED that Defendants monitoring responsibilities shall

2 be met by using the e3DM data system and Border Patrol logs, shall be released to

3 Plaintiffs on a quarterly basis.

4

Dated this 18th day of November, 2016.

5

6

7

Honorable David C. Bury

8

United States District Judge

9

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14

15

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 Case 4:15-cv-00250-DCB Document 261 Filed 01/03/17 Page 1 of 4

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10

Plaintiffs,

ORDER

11 v.

12 Jeh Johnson, et al.,

13

Defendants.

14

15

On December 2, 2016, the Defendants filed a Motion for Clarification and Motion

16 for Reconsideration of this Court’s Order issued on November 18, 2016, granting a

17 preliminary injunction in favor of the Plaintiffs. The Defendants ask the Court to

18 reconsider its directive that detainees held longer than 12 hours have certain

19 constitutional rights related to sleeping and personal hygiene and instead allow 24 hours

20 before Defendants have to provide sleeping mats or showers for detainees. Defendants

21 ask the Court to clarify its Order in regard to when the 12 hours begins to run, whether

22 wipes instead of showers may be provided to meet the personal hygiene needs of

23 detainees, and whether detainees may opt-out of receiving mats and blankets in exchange 24 for faster intake-processing.1

25

26

27

1 Defendants sought and Plaintiffs agreed to use freeform e3EM Fields as interim measure as follows: Mat provided, Blanket provided, Toothbrush provided, Toothpaste

28

provided, Shower provided, Body wipes provided, Medical screening completed, Feminine hygiene items provided, Baby food provided, and Diapers provided. (Response

(Doc. 254) at 8.)

Case 4:15-cv-00250-DCB Document 261 Filed 01/03/17 Page 2 of 4

1

The Court notes that motions to reconsider are appropriate only in rare

2 circumstances:

3

The motion to reconsider would be appropriate where, for example, the

court has patently misunderstood a party, or has made a decision outside

4

the adversarial issues presented to the court by the parties, or has made an

error not of reasoning but of apprehension. A further basis for a motion to

5

reconsider would be a controlling or significant change in the law or facts

since the submission of the issue to the court. Such problems rarely arise

6

and the motion to reconsider should be equally rare.

7 Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983);
8 see also, Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp. 305, 308-09 (D. Ariz. 1992).
9 The purpose of a motion for reconsideration is to correct manifest errors of law or
10 fact or to present newly discovered evidence. School Dist. No. 1J, Multnomah County,
11 Oregon v. AcandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A motion for reconsideration
12 should not be used to ask a court "to rethink what the court had already thought through--
13 rightly or wrongly". Above the Belt, Inc., 99 F.R.D. at 101; See Refrigeration Sales Co.
14 v. Mitchell-Jackson, Inc., 605 F. Supp. 6, 7 (N.D. Ill. 1983). Arguments that a court was
15 in error on the issues it considered should be directed to the court of appeals. Id. at 7.
16 Defendants argue that there have been unexpected consequences from the
17 injunction that warrant reconsideration. Defendants assert that cell capacity has been
18 substantially reduced because lying down on mats takes up more space than sitting up in
19 the holding cells. The Court reminds the Defendants that well before the Court issued the
20 preliminary injunction, detainees were lying down in the holding cells. Because the
21 majority of detainees are held longer than 12 hours,2 detainees lie down on the floors.
22 The Preliminary Injunction only requires these detainees be given mats. The Court
23 expected lying down on a mat, which measures about 30 inches by 75 inches, to take up
24 more space than being sandwiched side by side on the cell floors. The Court saw direct
25 evidence of the crowded conditions in the border patrol station holding cells. The Court
26 took this information into consideration when it granted the preliminary injunction.
27

28

2 By Defendants own admission, only about half the detainees are released within

24 hours.

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1

Defendants submit that due to 24-7 operational needs in the Tucson-sector border

2 patrol stations, they are unable to separate out detainees who approach 12 hour detentions

3 and have, therefore, been forced to basically cut all holding cell capacities in half. The

4 Court questions this assertion because it remembers seeing empty holding cells adjacent

5 to full cells, and Defendants admit to separating out at-risk vulnerable populations of

6 detainees, pursuant to the Prison Rape Elimination Act (PREA), under the Flores

7 Settlement Agreement. Defendants ask the Court to reconsider the 12-hour trigger for

8 mats because they have had to forego criminal prosecution of some detainees since the

9 Court issued the preliminary injunction in November. The Court notes this is not the

10 same as releasing detainees. Defendants ask the Court to let 24 hours pass before

11 detainees are given sleeping mats, but 24 hours is an arbitrary measure and not rationally

12 related to the need to sleep and lie down.

13

Defendants admit that alternatives exist to comply with the Court’s Order, such as

14 building or leasing additional facilities and/or restructuring transportation, but this would

15 take time. They report that Santa Cruz County and ICE have been unable to take many

16 more detainees due to their own capacity issues, but do not report on any other

17 interagency efforts to relieve overcrowding at the border patrol stations. The Defendants

18 ask the Court to suspend the 12-hour limit without offering any plan or time-line for full

19 compliance. The Court cannot suspend what it believes are constitutional rights. The

20 Court denies reconsideration and Defendants’ opt-out proposal.

21

The facts and circumstances surrounding the Court’s entry of the Preliminary

22 Injunction in favor of the Plaintiffs have not changed; there are no new facts which were

23 discovered since the Court’s disposition of it, and there is no manifest error of law. The

24 Court denies reconsideration.

25

As for clarification, the Court believes that the Preliminary Injunction is clear. For

26 detainees held longer than 12 hours, Defendants must provide bedding, including mats

27 and Mylar blankets and some means to maintain personal hygiene. The Court did not

28 order Defendants to provide showers. Finally, the only evidence presented regarding

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1 conditions of confinement were those existing within the confines of the border patrol

2 stations, therefore, the 12-hours begins to run from when the detainee arrives at the

3 station.

4

Accordingly,

5

IT IS ORDERED that the Motion for Reconsideration (Doc. 252) is DENIED.

6

IT IS FURTHER ORDERED that the Motion for Clarification (Doc. 252) is

7 DENIED, except the Court clarifies that the 12-hour confinement period begins when a

8 detainee arrives at a border patrol station.

9

Dated this 3rd day of January, 2017.

10

11

12

Honorable David C. Bury

13

United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 4:15-cv-00250-DCB Document 265 Filed 01/09/17 Page 1 of 20

1 Louise C. Stoupe* Pieter S. de Ganon*
2 MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor
3 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan
4 Telephone: +81-3-3214-6522 Facsimile: +81-3-3214-6512
5 Email: LStoupe@mofo.com Email: PdeGanon@mofo.com
6 Colette Reiner Mayer*
7 MORRISON & FOERSTER LLP 755 Page Mill Road
8 Palo Alto, CA 94304-1018 Telephone: (650) 813-5600
9 Facsimile: (650) 494-0792 Email: CRMayer@mofo.com
10 Attorneys for Plaintiffs
11 *Admitted pursuant to Ariz. Sup. Ct. R. 38(a) Additional counsel listed on next page
12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE DISTRICT OF ARIZONA

15

16

Jane Doe #1; Jane Doe #2; Norlan Flores, on Case No. 4:15-cv-00250-TUC-DCB

17 behalf of themselves and all others similarly

situated,

PLAINTIFFS’ MOTION FOR

18

CIVIL CONTEMPT

Plaintiffs,

19

CLASS ACTION

v.

20

Jeh Johnson, Secretary, United States

21 Department of Homeland Security, in his

(Assigned to the

official capacity; R. Gil Kerlikowske,

Honorable David C. Bury)

22 Commissioner, United States Customs &

Border Protection, in his official capacity;

Action Filed: June 8, 2015

23 Mark Morgan, Chief of the United States

Border Patrol, in his official capacity; Jeffrey

24 Self, Commander, Arizona Joint Field

Command, in his official capacity; and Paul

25 A. Beeson, Chief Patrol Agent-Tucson

Sector, in his official capacity,

26

Defendants.

27

28

PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT CASE NO. 4:15-CV-00250-DCB sf-3726842

Case 4:15-cv-00250-DCB Document 265 Filed 01/09/17 Page 2 of 20

1 Robert J. Esposito*
2 Elizabeth Balassone* MORRISON & FOERSTER LLP
3 425 Market Street San Francisco, CA 94105-2482
4 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
5 Email: REsposito@mofo.com Email: EBalassone@mofo.com
6
7

Megan Elaine Sallomi* Elisa Marie Della-Piana* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: msallomi@LCCR.com Email: edellapiana@LCCR.com

8 James J. Cekola* MORRISON & FOERSTER LLP
9 12531 High Bluff Drive, Suite 100 San Diego, CA 92130
10 Telephone: (858) 720-5100 Facsimile: (858) 720-5125
11 Email: JCekola@mofo.com

Attorneys for Plaintiffs
* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

12 Linton Joaquin* Karen C. Tumlin*
13 Nora A. Preciado* NATIONAL IMMIGRATION LAW
14 CENTER 3435 Wilshire Boulevard, Suite 2850
15 Los Angeles, CA 90010 Telephone: (213) 639-3900
16 Facsimile: (213) 639-3911 Email: joaquin@nilc.org
17 Email: tumlin@nilc.org Email: preciado@nilc.org
18
Mary Kenney* 19 Melissa Crow*
AMERICAN IMMIGRATION COUNCIL 20 1331 G Street NW, Suite 200
Washington, D.C. 20005 21 Telephone: (202) 507-7512
Facsimile: (202) 742-5619 22 Email: mkenney@immcouncil.org
Email: mcrow@immcouncil.org 23
Daniel J. Pochoda (Bar No. 021979) 24 Brenda Muñoz Furnish (Bar No. 027280)
ACLU FOUNDATION OF ARIZONA 25 3707 North 7th Street, Suite 235
Phoenix, AZ 85014 26 Telephone: (602) 650-1854
Facsimile: (602) 650-1376 27 Email: dpochoda@acluaz.org
Email: bmfurnish@acluaz.org 28

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1

TABLE OF CONTENTS

2

Page

3 TABLE OF AUTHORITIES..............................................................................................ii

4 I. INTRODUCTION ................................................................................................... 1

5 II. BACKGROUND ..................................................................................................... 3

6

A. Defendants’ Destruction of Video Evidence Prior to Sanctions

Order ............................................................................................................. 3 7

B. This Court’s Sanctions Order ....................................................................... 3 8

C. Plaintiffs’ Recent Discovery of Defendants’ Failure to

9

Preserve Video Evidence.............................................................................. 4

10

D. Potential Further Destruction of Video Evidence from Tucson

Station ........................................................................................................... 7 11

III. LEGAL STANDARD ............................................................................................. 7 12

IV. ARGUMENT .......................................................................................................... 8 13

A. Defendants’ Continued Failure to Preserve Video Evidence is

14

a Clear and Convincing Violation of This Court’s Orders. ......................... 8

15

B. Defendants’ Continued Failure to Preserve Video Evidence

Warrants Further Sanctions. ......................................................................... 9 16

1. An Adverse Inference Is Necessary to Deter Further

17

Destruction and Address Plaintiffs’ Loss of Critical

Evidence. ........................................................................................... 9 18

2. Defendants’ Inability to Address Video Preservation

19

Issues Necessitates the Appointment of a Data Monitor. ............... 10

20

3. Defendants Should Be Ordered to Show Cause As to

Why They Should Not Pay Plaintiffs’ Attorneys’ Fees

21

and Costs Incurred Because of Defendants’ Conduct.....................11

22

C. Defendants Cannot Excuse Their Noncompliance With This

Court’s Orders. ........................................................................................... 12 23

D. Defendants’ Continued Failure to Preserve Video Evidence

24

Continues to Prejudice Plaintiffs................................................................12

25 V. CONCLUSION ..................................................................................................... 13

26

27

28

PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT

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Case 4:15-cv-00250-DCB Document 265 Filed 01/09/17 Page 4 of 20

1 2 3 CASES

TABLE OF AUTHORITIES

Page(s)

4 Ahearn ex rel. N.L.R.B. v. Int’l Longshore & Warehouse Union, Locals 21& 4, 721 F.3d 1122 (9th Cir. 2013) ........................................................................................ 8
5

6 de Jesus Ortega Melendres v. Arpaio, No. CV-07-02513-PHX-GMS,

7

2013 U.S. Dist. LEXIS 145859 (D. Ariz. Oct. 2, 2013),

cert. denied, 136 S. Ct. 799 (2016) ............................................................................... 10 8

9

Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770 (9th Cir. 1983) .......................................................................................... 8

10

Forsythe v. Brown,

11

281 F.R.D. 577 (D. Nev. 2012)..................................................................................... 11

12 FTC v. Affordable Media, LLC,

13

179 F.3d 1228 (9th Cir. 1999) ........................................................................................ 7

14 Gifford v. Heckler,

741 F.2d 263 (9th Cir. 1984) .......................................................................................... 7 15

16

In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693 (9th Cir. 1993) .......................................................................................... 12

17 Spallone v. United States,

18

493 U.S. 265 (1990) ........................................................................................................ 7

19 Stone v. City & Cnty. of San Francisco,

20

968 F.2d 850 (9th Cir. 1992) ...................................................................................... 7, 8

21 Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997 (D. Ariz. 2011) ............................................................................ 11
22

23

Vertex Distrib. v. Falcon Foam Plastics, Inc., 689 F.2d 885 (9th Cir. 1982) .................................................................................. 11, 12

24

25

26

27

28

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1 I. INTRODUCTION

2

This Court took Defendants to task for “not hesitat[ing] since the inception of this

3 case to allow destruction of the video tapes and inform the Court after the fact, that it was

4 unable to prevent it.” (Court Order (“Sanctions Order”) at 9, ECF No. 64.) Defendants, it

5 would appear, have not hesitated to do so again.

6

Plaintiffs recently learned that Defendants have irreparably destroyed, and

7 otherwise failed to preserve, the most critical evidence in this case: video footage of

8 Tucson Sector hold rooms. By their own admission, Defendants have corrupted their own

9 video data archives, rendering them inaccessible, including video showing their own

10 experts inspecting the facilities in January 2016. In so doing, Defendants have now

11 violated two of this Court’s orders, including the order sanctioning Defendants for this

12 very behavior.

13

Even worse, perhaps, than the destruction itself is that although Defendants first

14 learned the data was corrupted and inaccessible last June, they neglected to inform

15 Plaintiffs or this Court until December 19, 2016. They neglected to do so despite this

16 Court’s express order that “Defendants . . . act in good faith to keep Plaintiffs apprised on

17 an ongoing basis of the status of recovery, maintenance, preservation and production of

18 the video recordings.” (Sanctions Order at 12.) Despite learning of the destruction in

19 June, Defendants failed to inform Plaintiffs’ counsel, instead asking opposing counsel to

20 select a narrow band of time for video footage to be produced. Plaintiffs selected January

21 2016, the month when Defendants experts inspected the facilities. Instead of confessing

22 their error and keeping Plaintiffs apprised of the relevant facts, Defendants sent Plaintiffs

23 several hard drives containing video footage that Defendants knew full well was corrupt

24 and thereby inaccessible, but said absolutely nothing.

25

As a result of Defendants’ silence, Plaintiffs expended significant time and effort

26 trying in vain to view the footage. Plaintiffs contacted Defendants in early November,

27 well before the hearing on Plaintiffs’ Motion for a Preliminary Injunction, asking about

28 the footage. Defendants feigned ignorance and said they would report back. It was not

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1 until last month, after Plaintiffs’ repeated inquiries and after the preliminary injunction

2 hearing, that this destruction was revealed and Defendants finally admitted not only that

3 the data was corrupted and could not be fixed, but that they had known of the corruption

4 nearly half a year before they produced it.

5

To this day, and despite this Court’s Order, Defendants have inexplicably refused

6 to provide a comprehensive status report indicating what video data archived to date has

7 been corrupted (and what has not). Thus, Plaintiffs do not know what data or how much

8 of it is corrupt and unusable. What is clear, however, is that the corrupt data includes

9 footage of Tucson Sector hold rooms—without doubt the most important evidence in this

10 case.

11

The Sanctions Order, it is now manifestly clear, failed to deter Defendants from

12 acting in bad faith, from destroying critical evidence, and from violating this Court’s

13 orders. If Defendants are to be deterred from further destruction of evidence, Plaintiffs

14 respectfully submit that more serious sanctions are required. The bad faith demonstrated

15 by Defendants should, at the very least, preclude them from continuing to oversee the

16 video evidence preservation efforts. And this Court should address the ongoing prejudice

17 to Plaintiffs who continue, by virtue of Defendants’ wrongdoing, to be deprived of critical

18 evidence.

19

Plaintiffs request that this Court hold Defendants, including their counsel of record,

20 in civil contempt of its August 14, 2015, and September 28, 2015 Orders. Plaintiffs

21 further request an order (1) issuing an adverse inference for the trier of fact; (2) appointing

22 a third-party vendor to serve as a Data Monitor and oversee Defendants’ video

23 preservation obligations, at Defendants’ expense; and (3) ordering Defendants to show

24 cause as to why they should not pay Plaintiffs’ attorneys’ fees and costs incurred in

25 connection with (a) the technical support to review and attempt repair of inaccessible data

26 produced by Defendants, (b) meet and confer with Defendants on this issue, and (c) this

27 Motion.

28

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1

This Motion is urgent because, despite this Court’s orders, it is unclear what video

2 footage data has been corrupted and what steps Defendants have taken, if any, to resolve

3 the corruption issue. As far as Plaintiffs’ know, the spoliation is ongoing.

4 II. 5

BACKGROUND A. Defendants’ Destruction of Video Evidence Prior to Sanctions Order

6

Defendants’ failure to preserve relevant video footage depicting the conditions of

7 confinement in Tucson Sector stations is long- and well-established. Prior to August 14,

8 2015, Defendants destroyed video footage, including footage depicting the detention of

9 the named plaintiffs, Jane Doe #1 and Jane Doe #2. Defendants destroyed this footage

10 despite Defendants’ counsel’s express assurance that Defendants were fully complying

11 with their legal duty to preserve. (See Plts.’ Mot. for Sanctions Ex. C at 1, ECF No. 57-3.)

12 It later turned out, however, that Defendants had taken no steps to preserve this video

13 footage whatsoever. Plaintiffs filed a Motion for Expedited Discovery requesting, among

14 other things, the production of this footage. (Mot. Expedited Discovery, ECF No. 25.)

15

On August 14, 2015, this Court ordered Defendants “not [to] destroy or record over

16 any video surveillance tapes [and to] preserve such surveillance tapes currently in their

17 possession.” (Court Order ¶ 8, ECF No. 51.)

18

Instead of complying with that Order, or moving to modify it, Defendants made the

19 “operational decision to continue . . . recording current video footage . . . even though this

20 automatically causes recording over some existing stored surveillance footage.” (Defs.’

21 2nd Notice of Facts Re Compliance with Ct. Order at 2, ECF No. 55.) Plaintiffs then filed

22 a Motion for Sanctions, asking this Court to sanction Defendants for their continued

23 destruction of video evidence even after the Court’s August 14, 2015 Order. (Pls.’ Mot.

24 for Sanctions, ECF No. 56.)

25

B. This Court’s Sanctions Order

26

On September 28, 2015, the Court issued an Order granting in part Plaintiffs’

27 Motion for Sanctions. (Sanctions Order at 12.) The Court concluded “the destruction of

28 the video-tape recordings made prior to this Court’s August 14, 2015, Order was, at best,

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1 negligent and was certainly willful.” (Id. at 9:3-5.) Regarding the video recordings after

2 August 14, the Court found “Defendants acted unilaterally to modify their responsibilities

3 to preserve evidence required by law, rule and direct Order of this Court.” (Id. at 9:14-

4 15.)

5

The Court described how “Defendants have not hesitated since the inception of this

6 case to allow destruction of the video tapes and inform the Court after the fact, that it was

7 unable to prevent it. Defendants have unilaterally changed plans and not told the

8 Plaintiffs and have not sought leave of the Court for changes.” (Id. at 9:20-25.)

9

The Court also identified Defendants’ failure to communicate with Plaintiffs on

10 issues related to video preservation. (Id. at 10:6-9 (“In spite of Plaintiff’s offer to reassess

11 its retention requests upon being better informed regarding Defendants’ data recording

12 and retention systems, the Defendants have made no effort to work with Plaintiffs to

13 address the Defendants’ technical limitations and difficulties.”).) Accordingly, the Court

14 was abundantly clear that Defendants have an obligation to inform Plaintiffs about such

15 issues. The Court ordered that “Defendants shall act in good faith to keep Plaintiffs

16 apprised of an ongoing basis of the status of recovery, maintenance, preservation and

17 production of video recordings.” (Id. at 12:5-7.)

18

C. Plaintiffs’ Recent Discovery of Defendants’ Failure to Preserve Video

Evidence 19

20

On August 23, 2016, Plaintiffs requested that Defendants produce additional video

21 data from six of the Tucson Sector facilities, including all the video from Tucson Station

22 during the month of January 2016. (Declaration of James Cekola in Support of Pls.’ Mot.

23 for Civil Contempt (“Cekola Decl.”) filed herewith, Ex. 1 at 3.) On October 4th, Plaintiffs

24 received hard drives supposedly containing the requested data. (Id. Ex. 2 at 2.)

25

On November 3rd, Plaintiffs sent an email updating Defendants on the status of the

26 data. Plaintiffs first told Defendants that they had to resolve various technical issues—for

27 example, issues related to ViconNet software used—to even begin reviewing the video.

28

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1 (Id. Ex. 1 at 1.) Plaintiffs also notified Defendants that, for at least the Tucson Station,

2 there was no video from the cameras in the holding rooms. (Id.)

3

Having received no response to this inquiry, Plaintiffs sent another email on

4 November 10th. (Id.) Defendants finally sent an email that day, but offered no

5 substantive response. It stated: “Our local folks have been tied up with the site visits

6 thusbweek [sic], but we are looking into it and will get back to you as soon as we can.”

7 (Id.)

8

Another week passed without any substantive information regarding the missing

9 video data. An evidentiary hearing was held on November 14 and 15, 2016, on Plaintiffs’

10 Motion for a Preliminary Injunction. (Day 1, Day 2 Preliminary Injunction Hearing

11 Transcripts, ECF Nos. 237, 239.)

12

Still getting nothing from Defendants, Plaintiffs sent a follow up letter on several

13 outstanding discovery items, including the video footage, on November 19th. (Id. Ex. 2.)

14

Defendants responded on November 22nd, requesting that the parties schedule a

15 call. Their email stated: “Regarding your questions about the video, as I mentioned before

16 it has been hard for me to coordinate with my folks in Tucson on this issue given the site

17 visits, hearing, and holiday, but I think I’ll have an answer to your questions on that by

18 tomorrow so I’ll shoot that over to you or give you a call.” (Id. Ex. 3.)

19

Plaintiffs were finally able to schedule a call with Defendants regarding the video

20 they produced on December 19, 2016. (Cekola Decl. ¶ 5.) Participants on that call

21 included counsel for Defendants and Plaintiffs, as well as Border Patrol employees

22 involved in the archiving of the video footage, including Gary Weaver and Samuel 23 Shivers.1 (Id.)

24

During this call, Defendants for the first time told Plaintiffs that there was an

25 unresolvable corruption issue with the archived footage. (Id. ¶ 6.) As explained primarily

26
1 Mr. Shivers has submitted multiple declarations in this litigation regarding the video
27 surveillance footage, systems, and archiving process. (Declarations of Samuel Shivers III, ECF
Nos. 55-2, 60-2, 66-1.)
28

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1 by Mr. Weaver, for at least the Tucson Station, there are a total of eight Digital Video

2 Recorders (“DVRs”) recording video footage, four of which are related to this litigation.

3 (Id.) Those DVRs run Windows 7 OS (operating system). According to Mr. Weaver, an

4 update to that operating system may have gone out while some of the DVRs were being

5 archived, which restarted the systems and resulted in corrupted archives. (Id.)

6

Moreover, it seems that no one actually checked the archives, once they were

7 made, to ensure that the data was accessible. (Id.) Thus, by the time the corruption was

8 recognized, the DVR system had been overwritten—in other words, taped over—so there

9 was no way to try to make another archive attempt. (See id.)

10

Even more shockingly, Mr. Weaver admitted that Defendants first noticed the issue

11 in June 2016.2 (Id. ¶ 7.) Apparently, he went back to review the archive disks, and could

12 see some messages indicating that the operating system had been rebooted during the

13 archiving process. (Id.) And, without any notice to Plaintiffs, Mr. Weaver reported that

14 Defendants had had an internal meeting about the issue in July 2016 and he had

15 distributed a list of his findings internally to Defendants. (Id.)

16

Hearing this on the December 19th call, Plaintiffs asked why Defendants did not

17 provide the list back in July, and why they are not providing it to Plaintiffs now. (Id. ¶ 8.)

18 Counsel for Defendants responded that she is not sending it to Plaintiffs now because she

19 does not consider the list final and because Plaintiffs had not requested every single video

20 that has been archived. (Id.)

21

Plaintiffs then asked what Defendants have done since June 2016, or are doing now

22 to fix the problem. (Id. ¶ 9.) Mr. Weaver indicated that, only since October or November

23 2016, Defendants have been “working to minimize” the number of Windows updates to

24 the DVR systems so they “do not get frequent updates, to minimize the DVR restarting.”

25

26

2 The record suggests that Defendants have known about this problem at least a year

before June 2016, and done nothing to fix it. (Aug. 27, 2015 Decl. of Samuel R. Shivers III ¶ 9a,
27 ECF No. 55-2) (“Tucson Station- two of four DVRs have backups because two DVRs are failing

and constantly rebooting causing the backup to fail”).)
28

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1 (Id.) Mr. Weaver also said that, only since December 2016, someone is actually checking

2 the video archived each month to determine whether it is corrupted. (Id.)

3

Finally, Plaintiffs asked whether the corruption problem existed for all the Tucson

4 Sector stations. (Id. ¶ 10.) As Mr. Weaver is involved in only the archiving process for

5 the Tucson and Sonoita Stations, he did not know whether anyone was looking into

6 corruption of the archives from the other six stations. (Id.)

7

D. Potential Further Destruction of Video Evidence from Tucson Station

8

During the December 19th call, Plaintiffs also sought a status update regarding

9 their request for the production of video footage from the Tucson Station for a different

10 month (November 2016). (Id. ¶ 11.) Defendants indicated that this archive has not been

11 completed yet because there is a problem with a DVR. (Id.) Accordingly, Plaintiffs are

12 concerned that there is a separate issue regarding the DVR itself that may lead to further

13 destruction of video footage from the Tucson Station.

14 III. LEGAL STANDARD

15

The standard for finding a party in civil contempt is well-settled. A party moving

16 for civil contempt must show by clear and convincing evidence that the contemnors

17 violated the Court’s order. FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir.

18 1999). The burden then shifts to the contemnor to demonstrate why they were unable to

19 comply. Id. “This Circuit’s rule with regard to contempt has long been whether the

20 defendants have performed ‘all reasonable steps within their power to insure compliance’

21 with the court’s orders.” Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 856 (9th

22 Cir. 1992).

23

The district court has “wide latitude in determining whether there has been a

24 contemptuous defense of its order.” Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir.

25 1984); see Spallone v. United States, 493 U.S. 265, 276 (1990) (federal courts have

26 inherent power to enforce their lawful orders through contempt). In making its contempt

27 determination, a court may consider the contemnors’ history of non-compliance and the

28

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1 extent to which the witness failed to comply during the pendency of the motion for

2 contempt. See, e.g., Stone, 968 F.2d at 857.

3

“Civil contempt is characterized by the court’s desire to compel obedience to a

4 court order or to compensate the contemnor’s adversary for the injuries which result from

5 the noncompliance.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778

6 (9th Cir. 1983) (citations omitted); see also Ahearn ex rel. N.L.R.B. v. Int’l Longshore &

7 Warehouse Union, Locals 21 & 4, 721 F.3d 1122, 1129 (9th Cir. 2013) (“[A] sanction

8 generally is civil if it coerces compliance with a court order or is a remedial sanction

9 meant to compensate the complainant for actual losses.”).

10 IV. ARGUMENT

11

A. Defendants’ Continued Failure to Preserve Video Evidence is a Clear

and Convincing Violation of This Court’s Orders. 12

13

Once before, already, this Court ordered Defendants “not [to] destroy or record

14 over any video surveillance tapes [and to] preserve such surveillance tapes currently in

15 their possession.” (Court Order ¶ 8, ECF No. 51.) Yet, by their own belated admission,

16 Defendants have failed to preserve evidence in this litigation by knowingly creating

17 corrupted archives of the video footage.

18

And when they found out about the corruption months ago, Defendants did and

19 said nothing. Then, when Plaintiffs did discover the problem, Defendants said they knew

20 nothing and kept Plaintiffs in the dark until after the hearing on the Preliminary

21 Injunction. Defendants’ conduct violates this Court’s explicit direction to “act in good

22 faith to keep Plaintiffs apprised of an ongoing basis of the status of recovery,

23 maintenance, preservation and production of video recordings.” (Sanctions Order at 12:5-

24 7.) Indeed, it is particularly distressing that Defendants appear to have been keeping silent

25 on their violation of the Court’s Orders, in the hopes that Plaintiffs would not discover it.

26

27

28

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1

B. Defendants’ Continued Failure to Preserve Video Evidence Warrants

Further Sanctions.

2

1. An Adverse Inference Is Necessary to Deter Further Destruction

3

and Address Plaintiffs’ Loss of The Most Critical Evidence.

4

In light of Defendants’ continuing failure to preserve evidence, in violation of two

5 Court orders, Plaintiffs renew their request for the following adverse inference:

6

An inference, applicable to all motions and at trial, that the

videotapes would have demonstrated all facts described in

7

Plaintiffs’ declarations continue through the present.

8 (Court Order at 11, ECF No. 56.) While noting Defendants’ willful conduct merited a

9 terminating sanction and would best deter Defendants from further spoliation, Plaintiffs 10 have submitted that the adverse inference would adequately—though not completely— 11 restore Plaintiffs to their status quo ante. (Id.)

12

In its Sanctions Order, the Court explained that while it was not prepared to issue

13 an adverse inference at that time, “[t]he Court will not allow the Defendants to take

14 advantage of the missing evidence.” (Sanctions Order at 11.) The Court was clear about

15 the future consequences of such conduct. “If at any point in time, Defendants seek to 16 obtain such an advantage from the lack of video tape evidence, the Court will entertain 17 applying an adverse inference and will allow Plaintiffs to reurge this sanction.” (Id.)

18

Defendants’ acts of bad faith surrounding the preliminary injunction hearing show

19 how they are taking advantage of their own spoliation and preservation failures. Plaintiffs

20 asked Defendants about the corrupted data well in advance of the hearing. Instead of

21 fessing up to their failures, Defendants feigned ignorance and Plaintiffs were forced to

22 rely on the incomplete and spotty video evidence they had. Defendants stonewalled 23 Plaintiffs until well after the hearing, so the spoliation could not be raised with the Court. 24 Defendants have done exactly what the Court warned them not to do. An adverse

25 inference should follow.

26

27

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1

2. Defendants’ Inability to Address Video Preservation Issues

Necessitates the Appointment of a Data Monitor.

2

3

Defendants’ continuing violation of this Court’s Orders to both preserve video

4 evidence and keep Plaintiffs apprised of the status of video preservation shows that

5 Defendants are not capable of continuing to oversee their obligation to preserve video

6 evidence in this litigation. Moreover, Defendants appear either unable or unwilling to

7 actually address the corruption issue. As described above, Defendants waited at least five

8 or six months to do anything to avoid further corruption of video data. (Cekola Decl. ¶ 7.)

9 And since then, Defendants appear to have tried to “minimize” the issue, for at least the 10 Tucson and Sonoita Stations, by reducing the number of Windows systems updates, but 11 offer nothing to suggest the problem is actually resolved. (Id.) Worse, it appears that no

12 one has checked whether the video data archives for remaining six Tucson Sector stations

13 is corrupted. (Id.)

14

In light of Defendants’ failures, Plaintiffs request that the Court appoint a Data

15 Monitor to provide the necessary oversight of Defendants’ video evidence preservation, at 16 Defendants’ expense. A Monitor can be appointed by the Court to assess and report on 17 Defendants’ implementation of a court order. See, e.g., de Jesus Ortega Melendres v.

18 Arpaio, No. CV-07-02513-PHX-GMS, 2013 U.S. Dist. LEXIS 145859, *57-58 (D. Ariz.

19 Oct. 2, 2013) (“In addition to the underlying collected data, the Monitor and Plaintiffs’

20 representatives shall have access to the results of all Supervisor and agency level reviews

21 of the traffic stop and patrol data.”), cert denied, 136 S. Ct. 799. Defendants have shown

22 utter disregard and complete incompetence related to video preservation issues to date, 23 resulting in the loss of critical video evidence and suggesting the high likelihood of future 24 destruction if allowed to continue. A Data Monitor will offer both oversight for

25 Defendants, as well as a resource for Plaintiffs to get timely, complete information on the

26 video preservation and production efforts ordered by the Court.

27

28

PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT

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1

3. Defendants Should Be Ordered to Show Cause As to Why They

Should Not Pay Plaintiffs’ Attorneys’ Fees and Costs Incurred

2

Because of Defendants’ Conduct.

3

Because of Defendants’ conduct, Plaintiffs incurred significant attorneys’ fees and

4 costs in trying to fix the video data Defendants already knew was corrupted, meeting and

5 conferring with Defendants on this issue while Defendants delayed and feigned ignorance,

6 and filing this Motion. (See Cekola Decl. ¶¶ 13-14.) When considering a motion for civil

7 contempt or sanctions, a court may assess not only attorneys’ fees and costs as a sanction,

8 but those fees and costs incurred with the motion. See, e.g., Forsythe v. Brown, 281

9 F.R.D. 577, 588 (D. Nev. 2012) (holding witness in contempt of court and ordered to pay 10 moving party’s attorney’s fees and costs incurred in filing order to show cause regarding 11 contempt) (citing Stone, 968 F.2d at 856); Surowiec v. Capital Title Agency, Inc., 790 F.

12 Supp. 2d 997, 1005 (D. Ariz. 2011) (quoting Victor Stanley, Inc. v. Creative Pipe Inc.,

13 269 F.R.D. 497, 533 (D. Md. 2010) (“Sanctions that a federal court may impose for

14 spoliation include assessing attorney’s fees and costs, giving the jury an adverse inference

15 instruction, precluding evidence, or imposing the harsh, case-dispositive sanctions of

16 dismissal or judgment).

17

Assessment of fees and costs incurred on the video footage is appropriate because

18 they could have been avoided if Defendants had followed the Court’s Sanctions Order and

19 notified Plaintiffs about the corruption. Instead, Defendants said nothing and Plaintiffs

20 expended significant efforts trying to access the video, and then trying to confer with

21 Defendants about the problems they were experiencing. The fees and costs associated

22 with just this technical support and meet and confer totals tens of thousands of dollars. 23 (See Cekola Decl. ¶ 14.) Accordingly, Plaintiffs respectfully request that this Court order 24 Defendants to show cause as to why Defendants should not pay Plaintiffs’ attorneys’ fees

25 and costs associated with (a) the technical support to review and attempt repair of

26 inaccessible data produced by Defendants, (b) meet and confer with Defendants on this

27 issue, and (c) this Motion.

28

PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT

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1

C. Defendants Cannot Excuse Their Noncompliance With This Court’s

Orders.

2

3

During the December 19th call, counsel for Defendants repeatedly asserted that

4 they had complied with the Court’s Orders because the data had been archived, while

5 ignoring the reality that the archives are inaccessible and therefore, unusable. (Id. ¶ 12.)

6 Defendant’s position strains all credulity. The notion that this corrupted data satisfies the

7 preservation obligations ordered by this Court is not a “good faith or reasonable

8 interpretation” of its Orders. Vertex Distrib. v. Falcon Foam Plastics, Inc., 689 F.2d 885

9 (9th Cir. 1982). And, of course, it does nothing to excuse Defendants’ failure to

10 communicate the corruption issue to Plaintiffs.

11

To the extent Defendants contend that they were acting in good faith—clearly, they

12 were not—that too is not a defense. To find a party in civil contempt, the failure to

13 comply with the Court’s order need not be willful or intentional. In re Dual-Deck Video

14 Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). While intent is

15 irrelevant to a finding of civil contempt, Defendants plainly demonstrated bad faith here. 16 Defendants have again disrupted the litigation by failing to preserve relevant evidence, all 17 the while sitting silent while further evidence was destroyed and Plaintiffs were left in the

18 dark.

19

D. Defendants’ Continued Failure to Preserve Video Evidence Continues

to Prejudice Plaintiffs.

20

21

In the same way Defendants’ bad faith is not germane to the determination of

22 contempt and sanctions here, this Court need not find prejudice to award Plaintiffs the 23 relief they seek. (See Pls.’ Reply Sanctions Mot. at 7, ECF No. 61 (citing Leon v. IDX 24 Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (bad faith and prejudice are relevant only

25 where the movants seek the harsh sanction of dismissal or default judgment).)

26 Nevertheless, Plaintiffs continue to be prejudiced by Defendants’ continued destruction of

27 what may well be the only visual evidence of Defendants’ past and continued

28 wrongdoing. This is particularly true because the corrupted video includes (at least) the

PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT

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1 holding cells in the Tucson Station, the facility with the largest capacity of any station in

2 the sector and, according to Defendants, “a significant portion of the individuals

3 apprehended in Tucson Sector must be processed through the TCC [Tucson Station.]”

4 (Defs.’ Mot. for Reconsideration, ECF No. 252 at 6.) Moreover, the time period of the

5 footage includes months when one of Defendants’ experts inspected the facilities.

6 (Declaration of Richard Bryce ¶ 11, ECF No. 140-5 (“From January 26-28, 2016, I

7 conducted inspections of Tucson Border Patrol Station, Douglas Border Patrol Station,

8 Nogales Border Patrol Station, and the Casa Grande Border Patrol Station.”).) Plaintiffs

9 have now lost the ability to review video footage during those inspections. And there is

10 likely other critical video footage that has been, and continues to be, lost—Plaintiffs do

11 not know the full extent of Defendants’ spoliation.

12 V. CONCLUSION

13

For the foregoing reasons, this Court should grant Plaintiffs’ motion, hold

14 Defendants and their counsel of record in contempt, and issue the sanctions requested by

15 Plaintiffs: (1) an adverse inference for the trier of fact; (2) appointment of a third-party

16 vendor to serve as a Data Monitor and oversee Defendants’ video preservation

17 obligations, at Defendants’ expense; and (3) an order for Defendants to show cause as to

18 why they should not pay Plaintiffs’ attorneys’ fees and costs incurred in connection with

19 (a) the technical support to review and attempt repair of inaccessible data produced by

20 Defendants, (b) meet and confer with Defendants on this issue, and (c) this Motion.

21 Dated: January 9, 2017 22 23 24 25 26

By: /s/ Colette R. Mayer
Colette Reiner Mayer* MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304-1018 Telephone: (650) 813-5600 Facsimile: (650) 494-0792 Email: CRMayer@mofo.com

27

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PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT

CASE NO. 4:15-CV-00250-DCB

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT CASE NO. 4:15-CV-00250-DCB sf-3726842

Louise C. Stoupe* Pieter S. de Ganon* MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522 Facsimile: +81-3-3214-6512 Email: LStoupe@mofo.com Email: PdeGanon@mofo.com
Robert J. Esposito* Elizabeth Balassone* MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Email: REsposito@mofo.com Email: EBalassone@mofo.com
James J. Cekola* MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, CA 92130 Telephone: (858) 720-5100 Facsimile: (858) 720-5125 Email: JCekola@mofo.com Linton Joaquin* Karen C. Tumlin* Nora A. Preciado* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, CA 90010 Telephone: (213) 639-3900 Facsimile: (213) 639-3911 Email: joaquin@nilc.org Email: tumlin@nilc.org Email: preciado@nilc.org
Mary Kenney* Melissa Crow* AMERICAN IMMIGRATION COUNCIL 1331 G Street NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7512 Facsimile: (202) 742-5619 Email: mkenney@immcouncil.org Email: mcrow@immcouncil.org
14

Case 4:15-cv-00250-DCB Document 265 Filed 01/09/17 Page 19 of 20

1

Daniel J. Pochoda (Bar No. 021979)

Kathleen E. Brody (Bar No. 026331)

2

Brenda Muñoz Furnish (Bar No. 027280)

ACLU FOUNDATION OF ARIZONA

3

3707 North 7th Street, Suite 235

Phoenix, AZ 85014

4

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

5

Email: dpochoda@acluaz.org

Email: kebrody@acluaz.org

6

Email: bmfurnish@acluaz.org

7

Attorneys for Plaintiffs

8

* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

** Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

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PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT

CASE NO. 4:15-CV-00250-DCB

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 9th day of January, 2017, I caused a PDF version of the

3 documents listed below to be electronically transmitted to the Clerk of the Court, using

4 the CM/ECF System for filing and for transmittal of a Notice of Electronic Filing to all

5 CM/ECF registrants and non-registered parties.

6

x PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT

7

x DECLARATION OF JAMES CEKOLA IN SUPPORT OF

PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT (WITH

8

EXHIBITS 1-3)

9

x [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION CIVIL

CONTEMPT 10

11 Colette R. Mayer

12

(typed)

/s/ Colette R. Mayer (signature)

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CERTIFICATE OF SERVICE
CASE NO. 4:15-CV-00250-DCB1
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1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6 Jane Doe #1; Jane Doe #2; Norlan Flores,
7 on behalf of themselves and all others similarly situated,
8 Plaintiffs,
9 v.
10

Case No. 4:15-cv-00250-TUC-DCB
[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION CIVIL CONTEMPT

11 Jeh Johnson, Secretary, United States Department of Homeland Security, in his
12 official capacity; R. Gil Kerlikowske, Commissioner, United States Customs &
13 Border Protection, in his official capacity; Michael J. Fisher, Chief of the United States
14 Border Patrol, in his official capacity; Jeffrey Self, Commander, Arizona Joint
15 Field Command, in his official capacity; Manuel Padilla, Jr., Chief Patrol Agent-
16 Tucson Sector, in his official capacity,

17

Defendants.

18

19

The Court, having considered Plaintiffs’ Motion for Civil Contempt and the

20 Court’s inherent discretionary power to make appropriate evidentiary rulings regarding

21 destruction or spoliation of evidence and to manage its own affairs, and finding that good

22 cause appears, orders as follows:

23

Plaintiffs’ Motion for Civil Contempt is hereby GRANTED.

24

IT IS ORDERED THAT Defendants and Defendants’ Counsel of Record are found

25 to be in civil contempt of the Court’s August 14, 2015, and September 28, 2015 Orders.

26

IT IS FURTHER ORDERED THAT an inference is established, applicable to all

27 motions and at trial, that the videotapes would have demonstrated all facts described in

28 Plaintiffs’ declarations continue through the present.

[PROPOSED] ORDER

1

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1

IT IS FURTHER ORDERED THAT a third-party vendor be appointed to serve as

2 a Data Monitor and oversee Defendants’ video preservation obligations, at Defendants’

3 expense. The parties shall meet and confer to attempt to reach an agreement on the

4 selection of a third-party vendor. Plaintiffs may seek further relief from the Court to the

5 extent such an agreement is not reached.

6

IT IS FURTHER ORDERED THAT Defendants show cause as to why they should

7 not pay Plaintiffs’ attorneys’ fees and costs incurred in connection with (a) the technical

8 support to review and attempt repair of inaccessible data produced by Defendants, (b)

9 meet and confer with Defendants on this issue, and (c) this Motion.

10

IT IS SO ORDERED.

11 Dated: ____________________ 12
13

____________________ HON. DAVID C. BURY United States District Judge

14

15

16

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[PROPOSED] ORDER

2

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1 Louise C. Stoupe* Pieter S. de Ganon*
2 MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor
3 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan
4 Telephone: +81-3-3214-6522 Facsimile: +81-3-3214-6512
5 Email: LStoupe@mofo.com Email: PdeGanon@mofo.com
6 Colette Reiner Mayer*
7 MORRISON & FOERSTER LLP 755 Page Mill Road
8 Palo Alto, CA 94304-1018 Telephone: (650) 813-5600
9 Facsimile: (650) 494-0792 Email: CRMayer@mofo.com
10 Attorneys for Plaintiffs
11 *Admitted pursuant to Ariz. Sup. Ct. R. 38(a) Additional counsel listed on next page
12

13 IN THE UNITED STATES DISTRICT COURT
14 FOR THE DISTRICT OF ARIZONA
15

16 Jane Doe #1; Jane Doe #2; Norlan Flores, on Case No. 4:15-cv-00250-TUC-DCB behalf of themselves and all others similarly
17 situated,

18

Plaintiffs,

DECLARATION OF JAMES

CEKOLA IN SUPPORT OF

19

v.

PLAINTIFFS’ MOTION FOR

CIVIL CONTEMPT

20 Jeh Johnson, Secretary, United States

Department of Homeland Security, in his

CLASS ACTION

21 official capacity; R. Gil Kerlikowske,

Commissioner, United States Customs &

(Assigned to the

22 Border Protection, in his official capacity;

Honorable David C. Bury)

Mark Morgan, Chief of the United States

23 Border Patrol, in his official capacity; Jeffrey Action Filed: June 8, 2015

Self, Commander, Arizona Joint Field

24 Command, in his official capacity; and Paul

A. Beeson, Chief Patrol Agent-Tucson

25 Sector, in his official capacity,

Defendants.

26

27

28

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Case 4:15-cv-00250-DCB Document 265-2 Filed 01/09/17 Page 2 of 5

1 Robert J. Esposito* Elizabeth Balassone*
2 MORRISON & FOERSTER LLP 425 Market Street
3 San Francisco, CA 94105-2482 Telephone: (415) 268-7000
4 Facsimile: (415) 268-7522 Email: REsposito@mofo.com
5 Email: EBalassone@mofo.com
6

Megan Elaine Sallomi* Elisa Marie Della-Piana* LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444 Facsimile: (415) 543-0296 Email: msallomi@LCCR.com Email: edellapiana@LCCR.com

7 James J. Cekola*
8 MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100
9 San Diego, CA 92130 Telephone: (858) 720-5100
10 Facsimile: (858) 720-5125 Email: JCekola@mofo.com
11 Linton Joaquin*
12 Karen C. Tumlin* Nora A. Preciado*
13 NATIONAL IMMIGRATION LAW CENTER
14 3435 Wilshire Boulevard, Suite 2850 Los Angeles, CA 90010
15 Telephone: (213) 639-3900 Facsimile: (213) 639-3911
16 Email: joaquin@nilc.org Email: tumlin@nilc.org
17 Email: preciado@nilc.org

Attorneys for Plaintiffs
* Admitted pursuant to Ariz. Sup. Ct. R. 38(a)

18 Mary Kenney* Melissa Crow*
19 AMERICAN IMMIGRATION COUNCIL 1331 G Street NW, Suite 200
20 Washington, D.C. 20005 Telephone: (202) 507-7512
21 Facsimile: (202) 742-5619 Email: mkenney@immcouncil.org
22 Email: mcrow@immcouncil.org

23 Daniel J. Pochoda (Bar No. 021979) Brenda Muñoz Furnish (Bar No. 027280)
24 ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235
25 Phoenix, AZ 85014 Telephone: (602) 650-1854
26 Facsimile: (602) 650-1376 Email: dpochoda@acluaz.org
27 Email: bmfurnish@acluaz.org

28

CEKOLA DECL. ISO MOT. FOR CIVIL CONTEMPT CASE NO. 4:15-CV-00250-TUC-DCB sf-3729189

Case 4:15-cv-00250-DCB Document 265-2 Filed 01/09/17 Page 3 of 5

1 I, JAMES J. CEKOLA, hereby declare:

2

1. I am a member of the bar of the State of California, an associate in the law firm

3 of Morrison & Foerster LLP, and counsel of record for Plaintiffs in this litigation. I am

4 admitted pro hac vice to practice before this Court in this matter. I have personal

5 knowledge of the facts stated herein and, if called as a witness, could and would

6 competently testify thereto.

7

2. Attached as Exhibit 1 is a true and correct copy of an e-mail chain between

8 myself and Defendants’ counsel dated August 12, 2016 to November 10, 2016.

9

3. Attached as Exhibit 2 is a true and correct copy of my November 19, 2016

10 letter to Defendants’ counsel.

11

4. Attached as Exhibit 3 is a true and correct copy of a November 22, 2016 email

12 from Defendants’ counsel Sarah Fabian to me.

13

5. On December 19, 2016 counsel for the parties had a call regarding the video

14 produced by Defendants. Border Patrol employees involved in the archiving of the video

15 footage, including Gary Weaver and Samuel Shivers, were also on the call.

16

6. During this December 19th call, Defendants stated that there was an

17 unresolvable corruption issue with the archived footage. As explained primarily by Mr.

18 Weaver, for at least the Tucson Station, there are a total of eight DVRs recording video

19 footage, four of which are related to this litigation. Those DVRs run Windows 7 OS

20 (operating system). According to Mr. Weaver, an update to that operating system may

21 have gone out while some of the DVRs were being archived, which restarted the systems

22 and resulted in corrupted archives. Mr. Weaver indicated that no one actually checked the

23 archives, once they were made, to ensure that the data was accessible.

24

7. Mr. Weaver stated that he first noticed the issue in June 2016. He stated that

25 he went back to review the archive disks, and could see some messages indicating that the

26 operating system had been rebooted during the archiving process. He also stated that

27 Defendants’ had had an internal meeting about the issue in July and Mr. Weaver had

28 distributed a list of his findings internally to Defendants.

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1

8. I then asked Defendants why they did not provide Mr. Weaver’s list back in

2 July, and why they are not providing it to Plaintiffs now. Defendants’ counsel Sarah

3 Fabian responded that she is not sending it to Plaintiffs now because she does not consider

4 the list final and because Plaintiffs had not requested all the video that has been archived.

5

9. I also asked what Defendants have done or are doing now to fix the problem.

6 Mr. Weaver stated that, only since October or November 2016, Defendants have been

7 working to minimize the number of Windows updates to the DVR systems so they do not

8 get frequent updates, to minimize the DVR restarting. Mr. Weaver also said that, only

9 since December 2016, someone is actually checking the video archived each month to

10 determine whether it is corrupted.

11

10. I also asked whether the corruption problem existed for all the Tucson sector

12 stations. Mr. Weaver indicated that he is involved in only the archiving process for the

13 Tucson and Sonoita Stations, and therefore did not know whether anyone was looking into

14 corruption of the archives from the other six stations.

15

11. Finally, I asked Defendants for a status update regarding Plaintiffs’ request for

16 the production of video footage from the Tucson Station for the month of November

17 2016. Defendants stated that this archive has not been completed yet because there is a

18 problem with a DVR.

19

12. Repeatedly during the December 19th call, Defendants’ counsel Sarah Fabian

20 stated that Defendants had complied with the orders of this Court because the data had

21 been archived.

22

13. I personally reviewed the billing entries for Plaintiffs’ counsel and support

23 staff at Morrison & Foerster LLP—from paralegals up to partners—who substantially

24 contributed to: (a) technical support related to the corrupted video data produced by

25 Defendants; and (b) meet and confer with Defendants related to the corrupted video data.

26 //

27 //

28

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1

14. The total amount incurred by Plaintiffs for this work, at the standard hourly

2 billing rate for each attorney or staff member, is at most $41,211.25.

3

4

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing

5 is true and correct.

6

Executed this 9th day of January, 2017, at San Diego, California.

7

By:

8

James J. Cekola

9

10

11

12

13

14

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CEKOLA DECL. ISO MOT. FOR CIVIL CONTEMPT

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CASE NO. 4:15-CV-00250-TUC-DCB

s f-3729189

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 1 of 13

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INDEX OF EXHIBITS TO DECLARATION OF JAMES CEKOLA IN SUPPORT OF

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PLAINTIFFS’ MOTION FOR CIVIL CONTEMPT 30(a)(2)(B) Jane Doe #1 v. Johnson

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Case No. 4:15-cv-00250-TUC-DCB

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Exhibit 1 E-mails between James Cekola and Defendants’ counsel dated August 12, 2016 to November 10, 2016.

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Exhibit 2 November 19, 2016 letter from James Cekola to Defendants’ counsel.

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Exhibit 3 November 22, 2016 email from Defendants’ counsel Sarah Fabian.

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INDEX OF EXHIBITS TO THE DECLARATION OF JAMES J. CEKOLA

CASE NO. 4:15-CV-00250-TUC-DCB

1

sf-3729772

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 2 of 13
Exhibit 1

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 3 of 13

From: To:
Cc: Subject: Date:

Fabian, Sarah B (CIV) Cekola, James J.; Fishman, Dillon A. (CIV); Shieh, Daniel (CIV); Celone, Michael A. (CIV); Vuong, Sarah L. (CIV); Kisor, Colin (CIV) Deten RE: Doe v. Johnson, No. 4:15-cv-250-DCB (D. Ariz.) - missing video production Thursday, November 10, 2016 2:03:02 PM

- External Email James: Our local folks have been tied up with the site visits thusbweek, but we are looking into it and will get back to you as soon as we can. Sarah

Sent from my Verizon, Samsung Galaxy smartphone
-------- Original message -------From: "Cekola, James J." <JCekola@mofo.com> Date: 11/10/16 1:31 PM (GMT-07:00) To: "Fabian, Sarah B (CIV)" <sfabian@CIV.USDOJ.GOV>, "Fishman, Dillon A. (CIV)" <dfishman@CIV.USDOJ.GOV>, "Shieh, Daniel (CIV)" <DShieh@civ.usdoj.gov>, "Celone, Michael A. (CIV)" <mcelone@CIV.USDOJ.GOV>, "Vuong, Sarah L. (CIV)" <SVuong@civ.usdoj.gov>, "Kisor, Colin (CIV)" <CKisor@civ.usdoj.gov> Cc: Deten <Deten@mofo.com> Subject: Re: Doe v. Johnson, No. 4:15-cv-250-DCB (D. Ariz.) - missing video production
Counsel-
We have not received a response to the message below about the missing video production. Please respond.
-James
On Nov 3, 2016, at 3:05 PM, Cekola, James J. <JCekola@mofo.com<mailto:JCekola@mofo.com>> wrote:
CounselSince resolving various technical issues (e.g. with the ViconNet files), we have been reviewing the security video that Defendants produced last month. We noticed that the production for Tucson and Douglas is not complete. Defendants’ production was to include all the January 2016 video from these facilities. But video from certain key cameras is missing. For Tucson, we received no video from the cameras in the holding rooms. For Douglas, we received no video from the cameras in the male holding rooms (the seven North side rooms).
Please produce this missing video immediately. Our review is continuing, so we may identify other missing video or camera issues going forward, but given the significance of the gaps identified we wanted to address them now.
James Cekola | Attorney Morrison & Foerster LLP 12531 High Bluff Dr. Suite 100 | San Diego, CA 92130 P. 858.314.7631 C. 760.672.0974 | JCekola@mofo.com<mailto:JCekola@mofo.com>
From: Fabian, Sarah B (CIV) [mailto:Sarah.B.Fabian@usdoj.gov] Sent: Wednesday, September 28, 2016 3:05 PM

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 4 of 13
To: Cekola, James J.; Fishman, Dillon A. (CIV); Shieh, Daniel (CIV); Celone, Michael A. (CIV) Cc: Deten Subject: RE: Doe v. Johnson, No. 4:15-cv-250-DCB (D. Ariz.) - video production
James:
While you may have shipped the hard drives on 9/2, it does not appear they were sent overnight mail and they were received a few days later at which time Mr. Crelia was out of the office.
Nonetheless, it looks like the downloading process is nearly complete and it looks like the hard drives will be shipped back to you on Friday evening or Saturday morning.
Sarah
Sarah B. Fabian Senior Litigation Counsel Office of Immigration Litigation – District Court Section (202) 532-4824
From: Cekola, James J. [mailto:JCekola@mofo.com] Sent: Tuesday, September 27, 2016 6:36 PM To: Fabian, Sarah B (CIV) <sfabian@CIV.USDOJ.GOV<mailto:sfabian@CIV.USDOJ.GOV>>; Fishman, Dillon A. (CIV) <dfishman@CIV.USDOJ.GOV<mailto:dfishman@CIV.USDOJ.GOV>>; Shieh, Daniel (CIV) <DShieh@civ.usdoj.gov<mailto:DShieh@civ.usdoj.gov>>; Celone, Michael A. (CIV) <mcelone@CIV.USDOJ.GOV<mailto:mcelone@CIV.USDOJ.GOV>> Cc: Deten <Deten@mofo.com<mailto:Deten@mofo.com>> Subject: RE: Doe v. Johnson, No. 4:15-cv-250-DCB (D. Ariz.) - video production
Counsel-
On Sept. 2, 2016, we shipped hard drives to Mr. Crelia for the most recently identified video surveillance data. The drives with data have not yet been returned. Please let me know when we can expect them.
James Cekola | Attorney Morrison & Foerster LLP 12531 High Bluff Dr. Suite 100 | San Diego, CA 92130 P. 858.314.7631 C. 760.672.0974 | JCekola@mofo.com<mailto:JCekola@mofo.com>
From: Fabian, Sarah B (CIV) [mailto:Sarah.B.Fabian@usdoj.gov] Sent: Wednesday, August 31, 2016 7:03 AM To: Cekola, James J. Cc: Mayer, Colette Reiner; Fishman, Dillon A. (CIV); Shieh, Daniel (CIV); Celone, Michael A. (CIV) Subject: RE: Doe - Video Production
That all sounds correct. I will let Mr. Crelia know to expect both shipments. Thanks.
Sarah B. Fabian Senior Litigation Counsel Office of Immigration Litigation – District Court Section (202) 532-4824
From: Cekola, James J. [mailto:JCekola@mofo.com]

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 5 of 13
Sent: Wednesday, August 31, 2016 10:00 AM To: Fabian, Sarah B (CIV) <sfabian@CIV.USDOJ.GOV<mailto:sfabian@CIV.USDOJ.GOV>> Cc: Mayer, Colette Reiner <CRMayer@mofo.com<mailto:CRMayer@mofo.com>>; Fishman, Dillon A. (CIV) <dfishman@CIV.USDOJ.GOV<mailto:dfishman@CIV.USDOJ.GOV>>; Shieh, Daniel (CIV) <DShieh@civ.usdoj.gov<mailto:DShieh@civ.usdoj.gov>>; Celone, Michael A. (CIV) <mcelone@CIV.USDOJ.GOV<mailto:mcelone@CIV.USDOJ.GOV>> Subject: Re: Doe - Video Production
Sarah-
We have two protective “pelican” cases in which Mr. Crelia sent the last batch of drives in February. As before, we plan to send the empty "pelican" cases to Mr. Crelia so he can use them to ship the new drives to MoFo. The new drives will be sent by the vendor we purchase them from. Please let me know if there is any issue with this.
-James
On Aug 26, 2016, at 11:45 AM, Fabian, Sarah B (CIV) <Sarah.B.Fabian@usdoj.gov<mailto:Sarah.B.Fabian@usdoj.gov>> wrote: We can produce the requested video.
Please send the 26 hard drives to Mr. Crelia at the address in my email below, and please include a note listing the stations/months that you are requesting with the drives. Let me know if you have any other questions.
Sarah B. Fabian Senior Litigation Counsel Office of Immigration Litigation – District Court Section (202) 532-4824
From: Cekola, James J. [mailto:JCekola@mofo.com] Sent: Tuesday, August 23, 2016 9:11 PM To: Fabian, Sarah B (CIV); Mayer, Colette Reiner Cc: Fishman, Dillon A. (CIV); Shieh, Daniel (CIV); Celone, Michael A. (CIV) Subject: RE: Doe - Video Production
Counsel-
At this time, Plaintiffs want the following additional video data:
• Nogales – Dec. 2015, Jan. 2016
• Casa Grande – Dec. 2015, Jan. 2016
• Tucson – Jan. 2016
• Douglas – Jan. 2016
• Naco – March 2016
• Sonoita – May 2016
Based on the numbers your provided, I would estimate this to require 26 drives. Can you please confirm the actual number of drives to send? Also, I understood from our phone conversation about the videos last week that DOJ may be unable or unwilling to produce data from select time periods / facilities. If that is the case, in light of the identified video data in this e-mail, please explain what the issue is in so that we can understand it and cooperate with you if there is a reasonable work around. James Cekola | Attorney

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 6 of 13
Morrison & Foerster LLP 12531 High Bluff Dr. Suite 100 | San Diego, CA 92130 P. 858.314.7631 C. 760.672.0974 | JCekola@mofo.com<mailto:JCekola@mofo.com>
From: Fabian, Sarah B (CIV) [mailto:Sarah.B.Fabian@usdoj.gov] Sent: Friday, August 12, 2016 12:52 PM To: Mayer, Colette Reiner; Cekola, James J. Cc: Fishman, Dillon A. (CIV); Shieh, Daniel (CIV); Celone, Michael A. (CIV) Subject: Doe - Video Production
Colette and James:
I spoke with my clients and they have informed me that in order to provide 6 or 7 months of additional video data since the last production, they will require you to provide 146 hard drives (see summary below). This will provide you with video data through June 2016 (the number of months vary because some stations provided an extra month of data in the last production).
CAG - 28 drives (7 months) DGL - 12 drives (6 months) NCO - 12 drives (6 months) NGL - 28 drives (7 months) SON - 14 drives (7 months) TCA - 28 drives (7 months) WCX - 24 drives (6 months)
As before, the disks should be sent to:
SOS Michael Crelia Tucson Sector Headquarters 2430 S. Swan Rd. Tucson, AZ 85711
Please let me know once you have sent those so that I can let Mr. Crelia know to expect them, and so that he can prepare to begin the download project.
Let me know if you have any questions.
Thank you, Sarah
Sarah B. Fabian Senior Litigation Counsel Office of Immigration Litigation – District Court Section Department of Justice PO Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4824
<image001.jpg>
============================================================================
This message may be confidential and privileged. Use or disclosure by anyone other than an intended addressee is prohibited. If you received this message in error, please delete it and advise the sender by reply email.
============================================================================

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 7 of 13
This message may be confidential and privileged. Use or disclosure by anyone other than an intended addressee is prohibited. If you received this message in error, please delete it and advise the sender by reply email. ============================================================================ This message may be confidential and privileged. Use or disclosure by anyone other than an intended addressee is prohibited. If you received this message in error, please delete it and advise the sender by reply email. ============================================================================ This message may be confidential and privileged. Use or disclosure by anyone other than an intended addressee is prohibited. If you received this message in error, please delete it and advise the sender by reply email.

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 8 of 13
Exhibit 2

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 9 of 13

12531 HIGH BLUFF DRIVE SAN DIEGO, CALIFORNIA 92130-2040
TELEPHONE: 858.720.5100 FACSIMILE: 858.720.5125
WWW.MOFO.COM

MORRISON & FOERSTER LLP
BEIJING, BERLIN, BRUSSELS, DENVER, HONG KONG, LONDON, LOS ANGELES, NEW YORK, NORTHERN VIRGINIA, PALO ALTO, SACRAMENTO, SAN DIEGO, SAN FRANCISCO, SHANGHAI, SINGAPORE, TOKYO, WASHINGTON, D.C.

November 19, 2016

Writer’s Direct Contact
+1 (858) 314.7631 JCekola@mofo.com

Via Email
Sarah B, Fabian (sarah.b.fabian@usdoj.gov) Sarah L. Vuong (sarah.l.vuong@usdoj.gov) Michael A. Celone (michael.a.celone@usdoj.gov) Colin Kisor (colin.kisor@usdoj.gov) Office of Immigration Litigation, Civil Division, U.S. Department of Justice
Re: Doe v. Johnson, No. 4:15-cv-250-DCB (D. Ariz.)
Counsel,
I write about Defendants’ continued delays in producing discovery.
Defendants’ Document Production / Depositions of Defendants’ Witnesses
The deadline for Defendants to respond to Plaintiffs’ requests for production was June 29, 2016. From what Plaintiffs know, Defendants began collecting ESI at least four months ago. By July 13, Defendants had collected ESI from the three custodians identified in your search term report (Allen, Bristow, and Defreitas). On August 17, Defendants stated that you had collected “over 4 million e-mails and their attachments” using the then-agreed custodian list and search terms. On August 26, Defendants agreed to search and collect the e-mail of seven additional custodians.
To date, however, Defendants have made just two productions of the collected ESI. On September 19, Defendants mailed USA6722-7244. On October 28, Defendants mailed USA12480-13027. The productions total 1069 pages—amounting to a production rate of less than 500 pages per month. This is not the type of “rolling production” Plaintiffs anticipated when the parties previously discussed the idea.
Additionally, it became even more apparent during the evidentiary hearing on Nov. 14-15 that Defendants hold numerous categories of responsive documents but these remain unproduced. For example:
x Completed medical screening forms, which are responsive, at least, to RFPs 16, 17, 33, 34, 35, 36, 37, 38, and 57. Defendants testified during the

sd-690444

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 10 of 13
November 19, 2016 Page Two
evidentiary hearing that at least some medical screening forms are maintained. This fact is confirmed by Chief Allen who, in his deposition, stated that completed medical forms would be in detainees’ A-files. To date, Defendants’ have produced only one: USA-007054.
x Documents regarding the transfer of detainees into a longer-term detention facility or county jail, which are responsive, at least, to RFPs 81 and 82. Despite stating during the hearing that detainees were sent from BP facilities to such longer-term detention, Defendants have produced no documents responsive to this topic.
x Consequence Delivery System (“CDS”) documents, which are responsive to RFP 1. Defendants have produced no documents relating to CDS, despite the Court’s order that, at the very least, CDS documents related to times and conditions of detention are not covered by the deliberative process privilege and are relevant to Plaintiffs’ case.
x Documents regarding detainee complaints—including the complaints themselves—which are responsive, at least, to RFPs 8, 11, 14, 16, 20, 26, 28, 53, 54, 75, and 76. To date, Defendants have produced one document that references detainee complaints: USA-006785.
We are troubled that Defendants do not appear to be even remotely close to finishing their document production. As we previously mentioned, Defendants’ complete production of relevant documents is necessary for the noticed depositions that Plaintiffs have yet to take. We expect the complete production will be crucial also for additional depositions that Plaintiffs are likely to notice after the initial round of depositions. Defendants’ failure to timely complete their document production will make it impossible for Plaintiffs to prepare expert reports (due December 23) based on a full record.
Missing Video Production
We have still not heard back from Defendants about the missing surveillance video data. To summarize:
x On September 2, Plaintiffs shipped empty hard drives to Mr. Crelia for video data that was to include, among other things, all the January 2016 video from Tucson and Douglas.
x On October 4, Plaintiffs received hard drives supposedly carrying the requested video data from Mr. Crelia.
sd-690444

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 11 of 13
November 19, 2016 Page Three
x On November 3, Plaintiffs notified Defendants that, for Tucson, we received no video from the cameras in the holding rooms and that, for Douglas, we received no video from the cameras in the male holding rooms (the seven North side rooms). We asked Defendants to immediately produce the data.
x On November 10, Defendants stated that you were looking into it and would get back to Plaintiffs as soon as you could. * * * * *
Please let us know when your document production will be completed and what you have learned from you inquiry about the missing video data. The outstanding document productions, depositions, and video data likely will be crucial for Plaintiffs’ expert reports. As such, please let us know how you propose this fact discovery can be timely completed within the case schedule. Sincerely,
James Cekola
sd-690444

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 12 of 13
Exhibit 3

Case 4:15-cv-00250-DCB Document 265-3 Filed 01/09/17 Page 13 of 13

From: To: Cc: Subject: Date:

Fabian, Sarah B (CIV) Cekola, James J.; Vuong, Sarah L. (CIV); Celone, Michael A. (CIV); Kisor, Colin (CIV) Deten RE: Doe v. Johnson, No. 4:15-cv-250-DCB (D. Ariz.) Tuesday, November 22, 2016 3:33:38 PM

- External Email -

James:

We’d like to schedule a call next week to discuss discovery. We are not available Monday, but can you let us know your availability the rest of the week? Regarding your questions about the video, as I mentioned before it has been hard for me to coordinate with my folks in Tucson on this issue given the site visits, hearing, and holiday, but I think I’ll have an answer to your questions on that by tomorrow so I’ll shoot that over to you or give you a call.

Thanks, Sarah

Sarah B. Fabian Senior Litigation Counsel Office of Immigration Litigation – District Court Section (202) 532-4824

From: Cekola, James J. [mailto:JCekola@mofo.com] Sent: Saturday, November 19, 2016 8:30 PM To: Fabian, Sarah B (CIV) <sfabian@CIV.USDOJ.GOV>; Vuong, Sarah L. (CIV) <SVuong@civ.usdoj.gov>; Celone,
Michael A. (CIV) <mcelone@CIV.USDOJ.GOV>; Kisor, Colin (CIV) <CKisor@civ.usdoj.gov> Cc: Deten <Deten@mofo.com> Subject: Doe v. Johnson, No. 4:15-cv-250-DCB (D. Ariz.)

Counsel,

Please see the attached letter.

James Cekola | Attorney Morrison & Foerster LLP
12531 High Bluff Dr. Suite 100 | San Diego, CA 92130 P. 858.314.7631 C. 760.672.0974 | JCekola@mofo.com

============================================================================

This message may be confidential and privileged. Use or disclosure by anyone other than an intended addressee is prohibited. If you received this message in error, please delete it and advise the sender by reply email.

 
 Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 1 of 14

1

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5

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IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10

Plaintiffs,

ORDER

11 v.

12 Jeh Johnson, et al.,

13

Defendants.

14

15

The Plaintiffs come to the Court a second time seeking sanctions related to

16 Defendants’ spoliation of video evidence, which since August 14, 2015, the Defendants 17 have been charged to preserve. (Order (Doc. 51) granting Expedited Discovery).

18

On September 28, 2015, the Court held that the Defendants failed to preserve

19 surveillance tapes of detainee holding areas and other areas in Custom and Border Patrol 20 (CBP) facilities used or accessed by detainees and instead recorded over them. (Order

21 (Doc. 64) Re: Motion for Sanctions.) The Court granted Plaintiffs’ request for sanction

22 in part, ordering the Defendants to produce all existing and then currently retained video23 recordings, but denied the Plaintiffs’ request “for an adverse inference, applicable to all

24 motions and at trial, that the videotapes would have demonstrated that all facts described

25 in Plaintiff’s declarations existed and continue through the present.” Id. at 6, 11. The 26 Court held it would not allow the Defendants to take advantage of missing evidence. Id.

27 at 11.

28

Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 2 of 14

1

On January 9, 2017, the Plaintiffs again charge the Defendants with spoliation of

2 video evidence and seek sanctions. Plaintiffs again press for an adverse inference and

3 ask additionally for the Court to appoint a third-party vendor to serve as a Data Monitor

4 and oversee Defendants’ video preservation obligations and for Defendants to pay

5 Plaintiffs’ attorneys’ fees and costs incurred in connection with the technical support to

6 review and attempt to repair inaccessible data produced by Defendants, and this motion.

7

The Court grants the Plaintiffs’ Motion for Contempt in part and denies it in part

8 as explained below

9

Standard of Review: Spoliation and Sanctions

10

The law has not changed since the Court last visited the question of spoliation and

11 sanctions. See (Order (Doc. 64) at 6-8.) Like last time, the Plaintiffs do not seek the

12 most extreme sanction, dismissal, so the Court is not concerned with questions of

13 willfulness, bad faith or fault of the Defendants. The Court applies the five part test used

14 in the Ninth Circuit for Rule 37 of the Federal Rules of Civil Procedure, which considers

15 1) the public’s interest in expeditious resolution of litigation, 2) the court’s need to

16 manage its docket, 3) the risk of prejudice to the party seeking sanctions, 4) the public

17 policy favoring disposition of cases on their merits, and 5) the availability of less drastic

18 sanctions. Id. at 7-8 (citing Valley Engineers, Inc. v. Electric Engineering Co., 158 F.3d 19 10501, 1057 (9th Cir 1998)). Sanctions may be imposed for negligent conduct; good or

20 bad faith may be considered in determining the severity of the sanction and whether

21 imposition of a sanction would be unjust. Id. at 7.

22

Like before, Defendants assert the spoliation of the video evidence “occurred

23 inadvertently” and that “Defendants have made—and continue to make—reasonable,

24 good-faith efforts to comply with the Court’s Order of August 14, 2015 and September

25 28, 2015.” (Response (Doc. 275) at 1.) “A party commits civil contempt if the party

26 disobeys ‘a specific and definite court order by failure to take all reasonable steps within

27 the party’s power to comply.” (Response (Doc. 275) at 14 (quoting Reno Air Racing 28 Ass’n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006)). The burden is on the Plaintiffs to

- 2 -

Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 3 of 14

1 establish: 1) a violation of a court order, 2) more than a technical or de minimis violation,

2 and 3) conduct that was not a good faith or reasonable interpretation of the violated order.

3 Id. at 15 (citing Inst. Of Cetacean Research v. Sea Shepard Conservation Society, 774 4 F.3d 935, 945 (9th Cir. 2014; United States v. Bright, 596 F.3d 683, 694 (9th Cir. 2010)).

5 The Defendants assert they have acted in good faith and taken reasonable steps to

6 preserve video evidence.

7

To be clear, the Court’s September 28, 2015, Order gave the Defendants 15 days

8 to produce to the Plaintiffs all existing video recordings, dating from June 10, 2015

9 through September 28, 2015, and it also directed the parties to “meet and confer . . .

10 regarding Plaintiffs’ discovery needs and the capabilities at each facility for meeting

11 those needs.” (Order (Doc. 64) at 12.) In the end an extension of time for production

12 was needed due to technical and system complications for Defendants to make the June

13 to September, 2015, disclosures, and the parties agreed that to avoid the expense of

14 ongoing rolling productions the Defendants would “continue to preserve and maintain all 15 existing video surveillance footage for all Border Patrol stations1 in the Tucson Sector,

16 pending further Court order or stipulation.” (Status Report (Doc. 71) at 3.) In other

17 words, the Defendants would archive and store the video recordings until Plaintiffs

18 requested them, then copy the archive for the station and time period specified in

19 Plaintiffs’ request and provide the copy to the Plaintiff. (Response (Doc. 275), Ex. 1:

20 Weaver Decl. ¶ 3.) On January 27, 2016, the parties stipulated for production by

21 February 12, 2016, of all video data from Tucson, Nogales, Douglas, Sonoita, Casa

22 Grande, and Brian A. Terry stations for September 28 through November 30, 2015, and

23 from Willcox for November 20, through November 30, 2015. (Stipulation (Doc. 123)).

24 These videos produced for 2015 are not the subject of this motion.

25

According to the Defendants, in April 2015, Sentrillion, a security company with

26

27

1 The stations are: Tucson, Casa Grande, Douglas, Willcox, Nogales, Brian A.

28

Terry, and Ajo. The parties agreed to meet and confer no later than November 20, 2015 to discuss continuing need, if any, for video from the Willcox station. (Status Report

(Doc. 71) at 3.)

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 4 of 14

1 over 30 years of experience in providing enterprise security solutions to government and

2 commercial clients, conducted a survey of the Arizona CBP stations to prepare for the

3 development of the Central Area Video Surveillance System (CAVSS), which is a video

4 and audio recording system, using Vicon equipment and software, that provides CBP

5 mission critical, 24 hour, enterprise-wide, integrated surveillance and remote monitoring.

6 (Response (Doc. 275) at 3.) Full system archiving was a new addition to the CAVSS

7 program and design, which typically retains video for only 90 days before automatically

8 overwriting unless a specific incident is identified for retention. (Response (Doc. 275) at

9 4.) To retain 100 percent of the DVR video recordings, Sentrillion introduced changes to

10 the hardware and system design by attaching network storage drives and devices as well

11 as multiple additional hard drives. In January 2016, Sentrillion coordinated the

12 deployment of the CAVSS video workstations for 100 percent video archiving in

13 Sonoita, Wilcox, Douglas, and Tucson. Id. at 4.

14

The corruption of archived videos at issue here began in January, 2016.

15 Defendants admit that initially, on January 28, 2016, Field Support Directorate (FSD)

16 contacted the help desk at the Border Security Deployment Program (BSDP), the entity

17 responsible for oversight of the CAVSS deployment, because of problems with its first

18 attempt to archive one month of video at the Tucson station for this case. The archiving

19 process was not being timely completed and instead was generating an error message that

20 the system had improperly shutdown and a database check was being performed. FSD

21 believed the system rebooted mid-archive cycle possibly due to automatic patches and

22 security scans. (Response (Doc. 275), Ex. 2: Robertson Decl. ¶¶ 1, 3, 6, 11, 12.) FSD re-

23 ran the CAVSS program during a time period without patches and scans and believed the

24 video was successfully archived, id. ¶13, because there was no error message and instead

25 the software reflected a “green checkmark,” id. at 5 (citing Ex. 5: Shivers Decl. ¶7; Ex. 1:

26 Dean Decl. ¶ 17.)

27

Defendants admit, “From the initial installation of BSDP CAVSS, anytime there

28 has been an issue with a DVR or problems with archiving, FSD has been instructed to

- 4 -

Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 5 of 14

1 immediately contact the Sentrillion help desk via telephone and email. Upon notification

2 of an issue, a Sentrillion help desk ticket is created. If the issue cannot be resolved

3 remotely by Sentrillion, a Sentrillion technician is immediately dispatched. All USBP

4 sites are considered high priority and receive immediate attention for (sic) Sentrillion.”

5 Id. ¶ 13.

6

Defendants report that from April 22 through April 25, Field Technology Officer

7 (FTO) Gary Weaver, the FSD person responsible for archiving the DVR videos, archived

8 the January video for the Tucson station. (Response (Doc. 275) at 6.) Defendants admit

9 that by June 2016, FTO Weaver “became aware of the following issues with the archive

10 process: . . ., it would sometimes take multiple attempts to create a successful archive; a

11 DVR would also appear that it was not recording at times when it was recording; and

12 there would be instances of network connectivity error messages.” (Response (Doc.

13 275), Ex. 4: Weaver Decl. ¶ 10.) Around June 29, 2016, he reported these problems to

14 his superiors. Id. ¶ 11.

15

On August 2, 2016, BSDP and Sentrillion engineering met with FSD in Tucson,

16 including FTO Weaver, to review the CAVSS system, to discuss outages due to patching

17 and scanning, and discuss the current incremental archiving solution. The BSDP agreed

18 to undertake discussions on how to implement a long term archiving solution for the

19 future. (Response (Doc. 275), Ex. 2: Robertson Decl. ¶14.)

20

At all times, the Defendants relied solely on the Vicon software “green

21 checkmark” on the workstation screen to determine when a video was successfully

22 archived. No one ever actually looked at the archived tapes. (Response (Doc. 275) at 6-

23 8.)

24

On August 23, 2016, Plaintiff requested that the Defendants produce video data

25 from six facilities: Nogales (December 2015 and January 2016); Casa Grande (December

26 2015 and January 2016); Tucson (January 2016); Douglas (January 2016); Brian A.

27 Terry/Naco (March 2016), and Sonoita (May 2016). (Motion (Doc. 265) at 4; Ex. 1:

28 August 23, 2016 email.) On October 4, 2016, Plaintiffs received hard drives from the

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 6 of 14

1 Defendants, but were initially unable to review the hard drives because Defendants had

2 not provided the requisite ViconNet software for viewing the archived videos. (Motion

3 (Doc. 265) at 4-5.) After Plaintiffs were able to review the archived video with the

4 ViconNet software, the Plaintiffs discovered there was no video from the cameras in the 5 holding rooms at the Tucson station, id. at 5,2 and sent an email to Defendants on

6 November 3, 2016. The parties were together in Arizona for oral argument on the 7 Plaintiffs’ Motion for Preliminary Injunction on November 14 and 15th, but the matter

8 was not discussed. The Plaintiffs sent a formal letter to follow up several outstanding

9 discovery items including the video footage on November 19, 2016. Id. at 5. On

10 November 22, Defendants requested a conference call to address Plaintiffs’ questions

11 about the video, which was finally held on December 19, 2016. Id.

12

According to the Defendants, on November 22, 2016, FTO Weaver actually

13 “reviewed the master copy of the January 2016 archived video for Tucson Station and

14 found the video from three of the four DVRs was corrupted.” (Response (Doc. 275) at

15 10.) The corruption problems were disclosed during the December 19, 2016, conference

16 call to the Plaintiffs, including FTO Weaver’s disclosure regarding his discovery in June

17 of 2016 which is now described as “recording gaps” distinguishable from the “data

18 corruption” problems. (Response (Doc. 275) at 7-12.)

19

Since November, the Defendants have implemented additional measures to

20 improve confidence in the archiving process,3 which includes: 1) reducing the frequency

21 of patching and not archiving during scheduled events; 2) adopting another video

22 retention confidence check by screen printing the software validation message and green

23

24

2 On January 22, 2016, FSD had contacted Sentrillion to ask if it was possible to

25

simultaneously archive the 4 DVDs at the Tucson station and were told no. (Response (Doc. 275), Ex. 2: Robertson Decl. ¶ 7. On January 26, 2016, four additional

26

workstations were delivered to assist with allowing individual DVRs to be archived simultaneously. Id. ¶ 10. The problems related to archiving the multiple DVRs at the

27 Tucson station after January do not appear to be related to simultaneous archiving them.

28

3 Defendants have not resolved the corruption issue. They believe that the scans and patches caused gaps in the video recordings, but did not cause the corruption.

(Response (Doc. 275) at 13, 30.)

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 7 of 14

1 checkmark; 3) coordinating between SOC4 and BSDP to monitor event logs and video

2 during scanning events, 4) reconfiguring the system to actively monitor recording archive 3 failures; 5) using the Vicon client software tool to verify the archive;5 6) screen capturing

4 the DVR camera recording monitor function to investigate gaps; 7) capturing archive size

5 for comparison and investigating significant differences, and 8) logging the station,

6 archive date, DVR name, whether video was viewable, and screen capturing the video

7 frame. Id. at 12 (citing Shivers Decl. ¶¶ 11, 13). There is no explanation why these

8 measures were not reasonable steps, which were within the Defendants’ power to take

9 from January to November, 2016.

10

Defendants’ only explanation is that they did not review the archived tapes

11 because Vicon equipment and software meet or exceed industry standards, the green

12 checkmark did not always appear but ultimately could be attained by repeating the

13 archiving process, all instructions and best practices of documentation related to Vicon

14 software and equipment were followed. The Defendants assert they, therefore, undertook

15 all reasonable efforts to preserve evidence by relying solely on the green checkmark

16 indicator for a successful archival of a video recording. (Id., Ex. 4: Weaver Decl. ¶¶ 6-

17 7.)

18

The Court rejects this assertion for several reasons. First, Defendants asked, and

19 Plaintiffs agreed, to not seek rolling disclosures of archived video evidence to save

20 Defendants’ costs. This stipulation increased the importance of Defendants’ good faith

21 efforts to preserve the video evidence. Defendants knew they were using CAVSS in a

22 unique way, they had trouble initially in creating archives of the video recordings, and

23 encountered problems again when they commenced archiving in April/June.

24 Apparently, Defendants were not following every Vicon protocol because until

25

26

27

4 Department of Homeland Security Operations Center.

28

5 This is “a tool in the Vicon client software to verify the integrity of the archive when an archive is completed. This tool verifies the integrity of an archive and any copy

of the archive.” (Response (Doc. 275), Ex. 4: Weaver Decl. ¶ 14.)

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 8 of 14

1 November the Defendants were not using the Vicon validation software.6 As reflected by

2 the steps implemented in November, numerous alternative measures were readily

3 available to the Defendants for verifying the successful archiving of video recordings.

4 Alternatively, the Defendants could have just looked during the archiving process to be

5 sure they were preserving the video evidence.

6

Finally, Defendants stood silent regarding problems they knew existed in

7 archiving the video recordings. Even without the corruption problem, Defendants knew

8 they had gaps in the recordings as early as June. Nevertheless, they failed to provide

9 Plaintiffs with this information and when Plaintiff requested the archived video

10 recordings in August, the Defendants postponed Plaintiffs’ discovery of the gaps in the

11 videos by not providing the Vicon software needed for viewing the archived videos. The

12 spoliation was not discovered by Plaintiffs until December 2016, and even now its full

13 scope is unknown. The Defendants have not produced archived video for approximately

14 half the year at the Casa Grande station, have produced nothing for the Brian A. Terry

15 station, archiving remains pending for four months out of the year of video recordings at

16 the Nogales station, and approximately one month of archiving is either pending or has

17 not been produced for the Willcox, Sonoita, and Tucson, stations. More egregiously, the

18 Defendants appear to know the extent of the recording gaps on the archived videos,

19 which are designated on a blue line report, but Defendants fail to produce the report to

20 Plaintiffs or this Court. Without knowing the extent of the video gaps, it is impossible to

21 know the full scope of spoliation.

22

Conclusion

23

The Court finds that Defendants violated this Court’s Orders of August 14 and

24 September 28, issued in 2015, because Defendants failed to take all reasonable steps

25 within Defendants’ power to preserve video evidence. Specifically, the Defendants’

26 failure to take additional efforts beyond “seeing the green checkmark” was not a good

27 faith or reasonable interpretation of the Court’s preservation Orders. The remaining

28 6 See n. 5.

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 9 of 14

1 factor to be considered by the Court is whether there is more than a technical or de

2 minimis violation of the preservation Orders.

3

As of February 3, 2017, Defendants report the following preservation status for

4 2016 video recordings. (Response (Doc. 275), Ex. 7: Spreadsheets.)

5

At the Casa Grande station, there were no problems with video archives through

6 July, but archival review remains pending from July through December. Id.

7

At the Brian A. Terry station, archive review is pending. Id.

8

At the Douglas station there were no problems with video archives through

9 September and for November and December, but a DVR failed in October. Id.

10

At Nogales, gaps existed in recordings for January 21 and 27; there were no

11 archive problems in February and March; there were gaps in the recording on April 1 and

12 7, and only camera 3 recorded on April 18 and 20; May 1 through 7 only camera 5

13 recorded; there were gaps in recording for June 18 and June 19; there were no archive

14 problems in July and November, and archive review remains pending for August

15 September, October and December. Id.

16

At the Willcox station, there were no problems, except for there are no archives

17 for January because DVRs failed and had to be replaced and for November archive video

18 was turned over to USBP without review. Id.

19

At the Sonoita station, the only non-corrupted archives were for July, October and

20 November. The archived video was corrupted for January through March and gaps

21 existed in recordings for archived video April through June. Archive review is pending

22 for December. Id.

23

There are four cameras at the Tucson station, which is the central processing point

24 for individuals detained in this Sector. In January only one recorder was archived and it

25 contained gaps in the video. In February, one camera was archived without any problem;

26 two were archived with gaps, and one was corrupted. In March and April, the same thing

27 happened but involved different DVRs. In May, all the DVR recordings were archived,

28 with three containing gaps. In June, two videos were archived with no problem, two had

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 10 of 14

1 gaps. In July, two were ok, one was corrupted and the fourth one had gaps. August was

2 like June, two videos were archived without any problem, and two had gaps. In

3 September, three videos were archived without problems, and one contained gaps. In

4 October, three videos were archived without problems, and one is pending archive

5 review. In November, all the video recordings were successfully archived. December

6 archive videos review is pending. Id.

7

The Court finds no more than a technical or de minimis violation occurred at the

8 following stations: Casa Grande, from January through June; Douglas, except for

9 October, and Willcox.

10

At the Nogales station, videos were successfully archived for February, March,

11 July, and November. In both January and June, two days of video recordings had gaps.

12 In April, there were two days of video recordings with gaps and only one camera

13 recorded on another two days. For one week in May, only one camera was recording.

14 This means the video recordings made for the year, 2016, at the Nogales station were

15 successfully archived, except for approximately 15 days where only partial recordings

16 were preserved. The Court finds no more than a de minimis violation occurred at the

17 Nogales station.

18

The video recorded evidence is, however, more spotty at the Sonoita and Tucson

19 stations. At the Sonoita station only three months, July, October, and November, were

20 archived successfully. Video recordings were corrupted for January, February, and

21 March, and video recordings had gaps in April, May and June. The video archive for

22 December is pending. Consequently, at least three full months of video records are

23 destroyed, and the scope of the admitted further destruction of evidence due to gaps in the

24 video recordings cannot be determined “seeing” the “blue line report.” (Response (Doc.

25 275), Ex. 7: Spreadsheet at Sonoita.)

26

At the Tucson station, in January only one of the four camera video recordings

27 was not corrupted and it contained gaps. In both February and March, three DVR

28 recordings were archived, with two containing gaps. In April, two recordings were

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 11 of 14

1 archived, with one containing gaps. In May, four video recordings were archived, with

2 three containing gaps. In both June and August, four video recordings were archived,

3 with two containing gaps. In July, three videos were archived, with one containing gaps.

4 In September, four videos were archived, with one containing gaps. In October, three

5 video recordings were successfully archived, and one is pending. In November, all four

6 DVRs were successfully archived. Archiving for December is pending. Consequently,

7 of the 48 video recordings that should have been archived, Defendants successfully

8 archived 20 and archived another 15 with gaps in the video.

9

The Defendants refer the Court and Plaintiffs to the “blue line report” for

10 information regarding gaps in the record, but without any explanation fail to produce it.

11 Without the blue line report, neither this Court nor the Plaintiffs can determine whether

12 the failure to preserve the video evidence is de minimus. The Defendants shall produce

13 the blue line reports to the Plaintiffs immediately. Thereafter, Plaintiffs may reurge the

14 request for sanctions.

15

Without delay, however, the Court can conclude that the Defendants’ failure to

16 preserve the video recordings for the Tucson station in January is not de minimus to the

17 question of the conditions of confinement at that station in January. Defendants may not

18 present their expert’s opinion regarding the conditions of confinement there in January.

19 Likewise, the destruction of video recordings in October at the Douglas station may

20 prejudice Plaintiffs because class member Jose Garcia-Garcia was detained there in

21 October. In the event he testifies, the Plaintiffs will lack corroborating evidence, unless

22 the Court allows an adverse inference. The Court agrees and will allow the inference.

23

To the extent Defendants seek at any time going forward with this case to assert

24 conditions of confinement for time periods at any of the CBP stations when video

25 recordings were destroyed, the Court shall either preclude such argument or evidence,

26 and/or allow an adverse inference in favor of the Plaintiffs.

27

The Court can take no position regarding the Brian A. Terry station because

28 archiving is pending there in total. The Defendants shall produce the archived video

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 12 of 14

1 recordings for the Brian A. Terry station to Plaintiffs forthwith or provide an expedited

2 schedule for the production of this evidence as soon as possible. The same is true for the

3 Casa Grande station for July through December.

4

The Ajo station DVR recording system remains non-operational. (Reply (Doc.

5 278) at 4.) The Defendants shall equip the Ajo station with a DVR and archiving station

6 immediately and file a Notice with the Court when this is done.

7

Finally, the Court must consider the risk of ongoing and continued destruction of

8 video recordings. Plaintiffs ask the Court to appoint a Data Monitor to oversee

9 Defendants’ obligation to preserve the video evidence and who will serve as a resource

10 for Plaintiffs so they are able to get accurate and timely information about the

11 completeness of the archived video. The Court denies this request in light of the

12 Defendants’ Response that there is a Vicon client software tool which can verify the

13 integrity of the archive when an archive is completed and, likewise, can verify the

14 integrity of a copy of an archive. The Defendants shall provide Plaintiffs with such

15 verifications. Additionally, to offset the risk to Plaintiffs from not having rolling

16 discovery of the video recordings, the Court orders Defendants to provide Plaintiffs with

17 rolling disclosures of the archiving schedules for each station and camera, and to follow

18 these scheduled archiving processes with rolling disclosures to the Plaintiffs of the

19 corresponding verifications made pursuant to the Vicon software tool. The parties shall

20 meet and confer to discuss ways to enable Plaintiffs to spot-check future archiving

21 processes to ensure its integrity during this coming year and/or until Defendants resolve

22 the preservation problems due to archive corruption and recording gaps.

23

Accordingly,

24

IT IS ORDERED that the Court shall grant in part and deny in part the Motion

25 for Civil Contempt (Doc. 265) as follows: denied as to the request to appoint a Data

26 Monitor and as to spoliation of video recordings for Casa Grande from January through

27 June, for Douglas, except for the video recording for October, and Willcox, and granted

28 as ordered below.

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 13 of 14

1

IT IS FURTHER ORDERED that within 7 days of the filing date of this Order

2 the Defendants shall produce the “blue line report” to the Plaintiffs. Thereafter, Plaintiffs

3 may reurge the request for sanctions.

4

IT IS FURTHER ORDERED that the Defendants may not present their expert’s

5 opinion regarding the conditions of confinement at the Tucson station in January.

6

IT IS FURTHER ORDERED that in the event Plaintiffs’ class member Jose

7 Garcia-Garcia testifies either orally or by affidavit about conditions of confinement at the

8 Douglas station in October, the Court shall allow an adverse inference that the spoliated

9 video recording for that month at that station would corroborate his testimony.

10

IT IS FURTHER ORDERED that to the extent Defendants seek at any time

11 going forward with this case to assert conditions of confinement for time periods at any

12 of the CBP stations when video recordings were destroyed, the Court shall either

13 preclude such argument or evidence, and/or allow an adverse inference in favor of the

14 Plaintiffs.

15

IT IS FURTHER ORDERED that within 20 days of the filing date of this Order,

16 the Defendants shall produce to the Plaintiffs the archived video recordings for the Brian

17 A. Terry station or provide an expedited schedule for the production of this evidence as

18 soon as possible.

19

IT IS FURTHER ORDERED that within 20 days of the filing date of this Order,

20 the Defendants shall produce to the Plaintiffs the archived video recordings for the Casa

21 Grande station for the months of July through December or provide an expedited

22 schedule for the production of this evidence as soon as possible.

23

IT IS FURTHER ORDERED that the Defendants shall immediately equip the

24 Ajo station with a DVR and a workstation for archiving it, and file a Notice with the

25 Court when this is done.

26

IT IS FURTHER ORDERED that the Defendants shall provide Plaintiffs with

27 rolling disclosures of the archiving schedule by station followed by verification of the

28 integrity of each archive, pursuant to the Vicon client software verification tool. Any

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Case 4:15-cv-00250-DCB Document 285 Filed 03/13/17 Page 14 of 14

1 copies shall be so verified, with verification provided to Plaintiffs accompanying the

2 archive copies.

3

IT IS FURTHER ORDERED that the parties shall meet and confer to discuss

4 ways to spot-check future archiving to ensure integrity of the preservation of the video

5 recordings at each station during this coming year and/or until Defendants resolve the

6 corruption issue.

7

IT IS FURTHER ORDERED that the Defendants shall pay Plaintiffs’ attorneys’

8 fees and costs incurred in connection with the technical support to review and attempt to

9 repair inaccessible data produced by Defendants, and this motion.

10

Dated this 13th day of March, 2017.

11

12

13

Honorable David C. Bury

14

United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 14 -

 
 Doe v. Johnson, Not Reported in F.Supp.3d (2015) 2015 WL 5086291

2015 WL 5086291 Only the Westlaw citation is currently available.
United States District Court, D. Arizona.
Jane Doe #1, et al., Plaintiffs, v.
Jeh Johnson, Secretary, United States Department of Homeland Security, et al., Defendants.
CV 15–250 TUC DCB |
Signed August 14, 2015
Attorneys and Law Firms
Colette Reiner Mayer, Morrison & Foerster LLP, Palo Alto, CA, Daniel Joseph Pochoda, James Duff Lyall, Victoria Lopez, ACLU, Phoenix, AZ, Elizabeth Gilmore Balassone, Harold J. McElhinny, Kevin Martin Coles, Morrison & Foerster LLP, Travis Silva, Lawyers Committee for Civil Rights, San Francisco, CA, Emily Creighton, Mary Kenney, Melissa Ellen Crow, American Immigration Council, Washington, DC, Karen Cassandra Tumlin, Linton Joaquin, Nora A. Preciado, National Immigration Law Ctr., Los Angeles, CA, Louise Carita Stoupe, Pieter S. Deganon, Morrison & Foerster LLP, Tokyo, Japan, for Plaintiffs.
Sarah B. Fabian, Dillon Fishman, US Dept. of Justice, Office of Immigration Litigation, Washington, DC, for Defendants.
ORDER
David C. Bury, United States District Judge
*1 Plaintiffs’ Motion for Expedited Discovery having been fully briefed and following oral argument, the Court finds good cause for the expedited discovery because it is needed by Plaintiffs to prepare and file a Motion for Preliminary Injunction. Therefore, the Court finds the administration of justice outweighs the prejudice to the Defendants given the narrow limits of the discovery the Court will allow to be conducted on an expedited basis. Semitool, Inc. v. Tolyo Electron Am., Inc., 208 F.R.D. 273, 276 (Calif 2002); United States v. Washington, 318 F.3d 845, 847 (8th Cir.2003).

Accordingly,
IT IS ORDERED that the Motion for Expedited Discovery (Doc. 25) is GRANTED.
IT IS FURTHER ORDERED the Plaintiffs are granted permission to conduct expedited discovery, as follows:
1. No more than five persons (three experts, one photographer, and one Plaintiffs’ attorney) to visit four Customs and Border Protection (CBP) facilities (Tucson, Douglas, Nogales, and Casa Grande) for no more than one day at each facility, with Plaintiffs acting in good faith to limit as much as possible the time spent to conduct the discovery at each facility.
2. Secured Areas: For approximately 10 minutes, inspect and photograph all holding cells and all fixtures contained therein, including the bathroom, and any other areas used at the CBP facility for or accessed by detainees (examples being areas were initial intake and medical screening is conducted), with Plaintiffs utilizing the Administrative Oversight Area (supervisor observation room) as much as possible to reduce to the extent possible the need to physically access the secure holding areas of the CBP facility.
3. Defendants shall provide current floor plans showing the measurements of the secured detainee holding areas or Defendants shall measure these areas and, with an avowal of accuracy, provide the measurements to the Plaintiffs.
4. Obtain temperature readings for the CBP facilities in the detainee holding areas; Defendants shall provide information regarding the CBP facility temperature, including whether the temperature is set for the entire building or if separate cooling units or controls operate for the holding areas.
5. Inspect and photograph supply storage areas, including storage areas for food and dishes, bedding, and general storage); food preparation and delivery areas; laundry facilities, and waste facilities, including the garbage;
6. Review and reproduce documents sufficient to show current detainee in-processing and detention practices and procedures at these four stations, including: any memorandum that sets out procedures for hold rooms and short-term custody; a current version of a security policy and procedures handbook for detention, and any written memoranda that have been issued to supervising agents that govern feeding, medical screening, sleeping, and
1

Doe v. Johnson, Not Reported in F.Supp.3d (2015) 2015 WL 5086291
temperature.
7. Produce a list of which logs each facility maintains relevant to daily conditions of confinement, including but not limited to: maintenance logs; supply logs; detainee call logs; cell occupancy logs, including length of stay; detainee medical logs; incident reports; surveillance video footage, and emergency drill logs. Defendants have agreed to provide daily log information for the three Doe Plaintiffs.
*2 8. For each facility, produce a list of video surveillance being conducted and maintained in holding cells and all fixtures contained therein, including the bathroom, and any other areas in the CBP facility used for or accessed by detainees (examples being areas were initial intake and medical screening is conducted).
IT IS FURTHER ORDERED that Defendants shall not destroy or record over any video surveillance tapes of any and all detainee holding areas (holding cells and all fixtures contained therein, including the bathroom, and any other areas in the CBP facility used for or accessed by detainees (examples being areas were initial intake and medical screening is conducted)) and shall preserve such surveillance tapes currently in their possession.

IT IS FURTHER ORDERED that, pending entry of a formal Protective Order to be drafted by the Defendants, the Plaintiffs stipulate that this expedited discovery shall be for “attorney eyes only.”
IT IS FURTHER ORDERED that the Defendant shall draft a Protective Order to address the privacy issues that may arise during discovery in this case.
IT IS FURTHER ORDERED that on or before the close of business on Thursday, August 20, 2015, the Defendants shall produce the daily logs and video list logs.
IT IS FURTHER ORDERED that Defendants shall accommodate the Plaintiffs with respect to completing the expedited discovery within 22 days, including holidays and weekends, of August 14, 2015.
All Citations
Not Reported in F.Supp.3d, 2015 WL 5086291
.

2

 
 Nos. 17-15381, 17-15383
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE DOE #1; JANE DOE #2; NORLAN FLORES, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants-Cross-Appellees,
v.
JOHN F. KELLY, Secretary, United States Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner, United States Customs and Border Protection; RONALD VITIELLO, Chief, United States Border Patrol; JEFFREY SELF, Commander, Arizona Joint Field Command; PAUL BEESON, Chief Patrol Agent – Tucson Sector,
Defendants-Appellees-Cross-Appellants.

Preliminary Injunction Appeals from the United States District Court for Arizona, Tucson, Hon. David C. Bury (Case No. 4:15-cv-00250-DCB)

BRIEF FOR PLAINTIFFS-APPELLANTS-CROSS-APPELLEES

LOUISE C. STOUPE PIETER S. DE GANON MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522
COLETTE REINER MAYER MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 813-5600

JAMES R. SIGEL ROBERT J. ESPOSITO ELIZABETH G. BALASSONE MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-6948 JSigel@mofo.com
DEANNE E. MAYNARD BRYAN J. LEITCH LENA H. HUGHES* MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 887-8740

Counsel for Plaintiff-Appellants-Cross-Appellees – Additional Counsel on Inside Cover

LINTON JOAQUIN KAREN C. TUMLIN NORA A. PRECIADO NATIONAL IMMIGRATION LAW CENTER Suite 2850 3435 Wilshire Boulevard Los Angeles, CA 90010 Telephone: (213) 639-3900
KATHLEEN E. BRODY DANIEL J. POCHODA BRENDA MUÑOZ FURNISH ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, AZ 85014 Telephone: (602) 650-1854
JAMES J. CEKOLA MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, CA 92130 Telephone: (858) 720-5100

MARY A. KENNEY MELISSA E. CROW AARON REICHLIN-MELNICK AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7512
ELISA DELLA-PIANA MEGAN SALLOMI LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444
ABIGAIL L. COLELLA MORRISON & FOERSTER LLP 250 West 55th Street New York, NY 10019 Telephone: (212) 468-8000

TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iv JURISDICTIONAL STATEMENT ..........................................................................1 STATEMENT OF THE ISSUES...............................................................................1 INTRODUCTION .....................................................................................................2 STATEMENT OF THE CASE..................................................................................5
A. Factual Background...............................................................................5 1. The Tucson Sector stations .........................................................5 2. Sleeping accommodations ..........................................................6 3. Sanitation and personal hygiene ...............................................10 4. Medical care..............................................................................15 5. Food and water..........................................................................18
B. Procedural History...............................................................................19 1. Plaintiffs seek judicial relief .....................................................19 2. The district court orders preliminary relief...............................20 3. The district court denies reconsideration ..................................23
SUMMARY OF ARGUMENT ...............................................................................24 STANDARD OF REVIEW .....................................................................................26 ARGUMENT ...........................................................................................................27 I. THE DUE PROCESS CLAUSE REQUIRES THE GOVERNMENT
TO PROVIDE CIVIL DETAINEES WITH ADEQUATE CONDITIONS OF CONFINEMENT...........................................................27

A. Civil Detainees Are Entitled To Considerate Treatment Consistent With The Nature And Purpose Of Their Detention ..........27
B. Plaintiffs’ Treatment In The Tucson Sector Stations Is Inconsistent With Due Process............................................................30
II. THE DISTRICT COURT COMMITTED LEGAL ERROR IN FAILING TO ORDER DEFENDANTS TO PROVIDE CONSTITUTIONALLY ADEQUATE MEDICAL CARE .........................33
A. The District Court Erroneously Concluded That Unqualified Border Patrol Agents Can Control Access To Medical Care..............33
1. Medically untrained border patrol agents cannot perform constitutionally adequate medical screening ............................34
2. Medically untrained border patrol agents cannot provide constitutionally adequate care with respect to medication .......37
B. Plaintiffs Are Entitled To Preliminary Relief Requiring That Qualified Medical Professionals Perform These Critical Tasks .........41
III. HAVING CORRECTLY HELD THAT DUE PROCESS REQUIRES PROVIDING THE DETAINEES WITH BEDS, THE DISTRICT COURT SHOULD NOT HAVE ALLOWED THAT UNCONSTITUTIONAL DEPRIVATION TO CONTINUE.......................43
A. The District Court Correctly Determined That The Constitution Requires That Civil Detainees Held Overnight Be Given Mattresses And Beds ...........................................................................44
B. The District Court Abused Its Discretion In Failing To Direct The Government To Remedy This Constitutional Violation..............48
IV. THE DISTRICT COURT COMMITTED LEGAL ERROR IN FAILING TO RECOGNIZE THAT CIVIL DETAINEES ARE ENTITLED TO SHOWERS .........................................................................50
A. Plaintiffs’ Constitutional Right To Adequate Hygiene Includes The Ability to Shower .........................................................................50
ii

B. Plaintiffs Are Entitled To Preliminary Relief Requiring The Provision Of Showers..........................................................................54
CONCLUSION ........................................................................................................56
iii

TABLE OF AUTHORITIES

CASES

Page(s)

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2009) ............................................................................27

Anela v. City of Wildwood, 790 F.2d 1063 (3d Cir. 1986) .......................................................................46, 47

Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ............................................................................55

Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012).................................................................43

Bell v. Wolfish, 441 U.S. 520 (1979)......................................................................................28, 29

Castro v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc) ............................................................29

City of Canton v. Harris, 489 U.S. 378 (1989)............................................................................................33

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983)............................................................................................28

Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) ............................................................................29

DeShaney v. Winnebago Cty. Dept. of Social Servs., 489 U.S. 189 (1989)............................................................................................28

Foster v. Runnels, 554 F.3d 807 (9th Cir. 2009) ..............................................................................28

G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) ..............................................................................43

iv

Gibson v. Cty. of Washoe, 290 F.3d 1175 (9th Cir. 2002) ..........................................................35, 37, 38, 39
Graves v. Arpaio, 48 F. Supp. 3d 1318 (D. Ariz. 2014) ..................................................................17
Harris v. Bd. of Supervisors, L.A. Cty., 366 F.3d 754 (9th Cir. 2014) ..................................................................26, 27, 54
Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) ....................................................33, 34, 38, 41, 51
Jackson v. Indiana, 406 U.S. 715 (1972)......................................................................................29, 32
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ................................... 28, 29, 30, 31, 32, 47, 52, 53
Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996) ..............................................................................51
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)........................................................................................29
Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) .........................................................33, 35, 45, 48, 50
Lolli v. Cty. of Orange, 351 F.3d 410 (9th Cir. 2003) ..............................................................................38
Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983) ......................................................................42, 50
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ......................................................31, 42, 49, 50, 55
Mitchell v. Aluisi, 872 F.2d 577 (4th Cir. 1989) ..............................................................................38
Olsen v. Layton Hills Mall, 312 F.3d 1304 (2002)....................................................................................35, 36
v

Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc) ......................................................32, 54
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ................................................................27, 42, 54
Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974) ..............................................................................33
S.O.C., Inc. v. County of Clark, 152 F.3d 1136 (9th Cir. 1998) ..............................................................................1
Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002) ........................................................................43, 50
Sierra Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009) ............................................................................26
Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989) ................................................................44, 45, 49
Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970) ..............................................................................38
Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984)...................................................................52
Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986) ............................................. 34, 38, 41, 50, 51, 52
Union County Jail Inmates v. Di Buono, 713 F.2d 984 (3d Cir. 1983) ...............................................................................46
United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc) ......................................................27, 48
Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981) ............................................................................32
Youngberg v. Romeo, 457 U.S. 307 (1982)............................................................................................27
vi

Zadvydas v. Davis, 533 U.S. 678 (2001)............................................................................................31
Zepeda v. I.N.S., 753 F.2d 719 (9th Cir. 1983) ........................................................................34, 51
STATUTES 28 U.S.C. § 1292(a) ...................................................................................................1 28 U.S.C. § 1331........................................................................................................1 28 U.S.C. § 1346........................................................................................................1 OTHER AUTHORITIES Fed. R. App. P. 4(a)(1)(B) .........................................................................................1 Fed. R. App. P. 4(a)(4)(A) .........................................................................................1 U.S. Customs and Border Protection, National Standards on Transport,
Escort, Detention, and Search § 4.10 (Oct. 2015), https://www.cbp.gov/sites/default/files/documents/cbp-teds-policy20151005_1.pdf (last checked March 30, 2017) ................................................40
vii

JURISDICTIONAL STATEMENT This is an appeal from a district court order granting a preliminary injunction in a civil case. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1346. The district court issued a preliminary injunction against DefendantsAppellees-Cross-Appellants John F. Kelly, Kevin K. McAleenan, Ronald Vitiello, Jeffery Self, and Paul Beeson (collectively, “Defendants”) on November 18, 2016. ER5. Defendants filed a timely motion for reconsideration on December 2, 2016 (ER51), which the district court denied on January 3, 2017. ER1. PlaintiffsAppellants-Cross-Appellees Norlan Flores et al. (“Plaintiffs”) filed a timely notice of appeal on March 2, 2017. ER44; see Fed. R. App. P. 4(a)(1)(B), (a)(4)(A); S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1142 (9th Cir. 1998). Defendants filed a notice of appeal later that same day. ER39. This Court has jurisdiction under 28 U.S.C. § 1292(a).
STATEMENT OF THE ISSUES 1. Whether, having concluded that the Constitution requires providing civil immigration detainees access to adequate medical care, the district court erred as a matter of law in concluding that medically untrained agents could conduct medical screening and prescription drug determinations. 2. Whether, having expressly recognized that Defendants’ ongoing failure to provide civil immigrant detainees with beds violated Due Process, the

district court could nevertheless permit this unconstitutional practice to continue pending trial.
3. Whether, having expressly recognized that civil immigration detainees have a constitutional right to personal hygiene, the district court erred as a matter of law in not recognizing this right entailed showers, not just the provision of adult body wipes.
INTRODUCTION When the government takes people into custody, it becomes responsible for their well-being. This case concerns the government’s failure to fulfill that fundamental obligation in eight Border Patrol stations in southern Arizona. Every year, the Border Patrol apprehends tens of thousands of individuals and confines them in these stations. There, these individuals await transfer to other locations, sometimes for as long as three days or more. For most, transfer cannot come soon enough: the conditions of confinement facing those unfortunate enough to be housed in the stations are harsh and degrading. As the record shows, detainees are packed into overcrowded and filthy holding cells, stripped of outer layers of clothing, and forced to endure brutally cold temperatures. They are denied beds, bedding, and sleep. They are deprived of basic sanitation and hygiene items like soap, sufficient toilet paper, sanitary napkins, diapers, and showers. And they are forced to go without adequate food,
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water, medicine, and medical care. The surveillance photo below—showing individuals packed into a room, pressed together on the concrete floor, and shielded only by thin, foil-like “sheets”—provides just a sample of the inhumane conditions they are forced to endure:
ER392. The Constitution prohibits the government from treating anyone in this
fashion, let alone the civil immigration detainees held in Border Patrol stations. And thankfully, in the order from which this appeal arises, the district court largely recognized as much. The district court granted Plaintiffs—a certified class of detainees who are or will be held in these stations—preliminary injunctive relief
3

directing Defendants to remedy some of the more egregious violations of the class members’ rights.
But the district court’s order did not address all of Defendants’ continuing constitutional violations. Instead, in three areas in particular, the district court permitted Defendants to continue to defy their legal obligations. First, class members are entitled to adequate medical care, but the district court erred as a matter of law in concluding that this constitutional obligation does not require medically trained personnel to conduct medical screenings—instead concluding that Border Patrol agents who are neither qualified nor adequately trained may act as the gatekeepers to critical care and medication. Second, as the district court expressly recognized, Due Process requires that class members held overnight be given beds—but its order allows Defendants’ violation of this mandate to persist, requiring only that Defendants provide floor mats. Third, although Due Process demands that class members be given the means with which to adequately wash themselves, the district court legally erred in concluding that this mandate does not include showers—instead allowing Defendants to provide patently insufficient “adult body wipes.”
Civil detainees such as Plaintiffs are entitled to better treatment than that accorded to criminal detainees held in prisons or jails. Yet even with the district court’s injunction in place, Plaintiffs are subjected to conditions considerably
4

worse, and they suffer irreparable harm as a result. This Court should reverse the district court’s order in part and remand for it to award relief sufficient to prevent Defendants from continuing to shirk their constitutional obligations.
STATEMENT OF THE CASE A. Factual Background
1. The Tucson Sector stations Plaintiffs are civil detainees confined in U.S. Customs and Border Protection (CBP) facilities within the Tucson Sector of the U.S. Border Patrol. Some fled their native land out of fear for their safety or the safety of their loved ones. ER462. Others have U.S. citizen children and spouses. ER462. Those detained include parents with young children and pregnant women. ER441; ER403. They are generally apprehended following grueling, perilous journeys that have left them exhausted, hungry, and dehydrated. ER458; ER454. Many are sick or injured and in need of immediate medical care. ER358. Upon apprehension, these class members are taken to one of eight Tucson Sector “stations.” ER5. As all agree, these stations were not designed for overnight detention. As one agent explained, Border Patrol is generally “an interdiction organization. We’re not in the detention business.” ER84. Thus, the stations were meant to serve as processing centers in which Border Patrol agents quickly determine the identity and status of detainees and then either release them
5

or send them to their next destination. ER608; ER589. These subsequent destinations, such as Immigration and Customs Enforcement detention centers or local jails, are actually designed to house individuals for days at a time. ER245, ER249.
While the Tucson Sector stations were not supposed to be detention centers—and the agents who run them were not supposed to be jailers—that is what they have become. For a variety of reasons, the processing and transfer of individuals detained in the Tucson Sector often takes a substantial amount of time. Between October 1, 2015 and October 2, 2016, approximately 95,800 individuals were processed out of the Tucson Sector Stations. ER860; ER255. Of the roughly 95,800 individuals, 54,688 were held for 12 hours or more; 26,367 were held for 24 hours or more; 10,348 were held for 36 hours or more; 3,913 were held for 48 hours or more; and 473 were held for 72 hours or more. ER860; see also ER522 (similar figures for the period between June 10 and September 28, 2015). The deplorable conditions in which these individuals are held during these prolonged periods gave rise to the present suit.
2. Sleeping accommodations Over the lengths of time class members are routinely being held, human beings need sleep. But the “hold rooms” in which class members are confined
6

during their time in the Tucson Sector stations are “not designed for sleeping.” ER432. To the contrary, nearly everything about these hold rooms inhibits sleep.
The rooms feature bare concrete floors and benches. ER436; ER434, ER443. There are no beds or mattresses in any of the facilities. ER439; ER486487; ER15; ER544-545. Although stations have thin mats, they are rarely given to detainees. ER523; ER440-441; ER486-487; ER544. Surveillance footage shows people lying on concrete floors while mats go unused in other unoccupied cells:
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ER388. As a result, most class members are forced to try to sleep directly on the
hold rooms’ concrete floors and benches. ER523. The only coverings they receive are Mylar sheets, which are paper-thin and look like tin foil (though they are apparently more durable). ER122; ER439; ER19. Some are denied even that. ER541. It is undisputed that Mylar sheets do not provide any insulation or cushion against the ground. ER122.
But the class members are particularly susceptible to cold. ER496-497. Upon arrival, they are stripped of their outer layers of clothing, often leaving them with only thin t-shirts. ER494; ER845. They are largely sedentary because, regardless of the duration of their confinement, they are never permitted to exercise. ER172. And the temperatures in the hold rooms can reach as low as 58.8° Fahrenheit. ER495. Even at higher temperatures, the lack of movement, drafts from air vents, inadequate clothing, and the heat-draining concrete surfaces cause class members to feel extremely cold. ER496-497; ER820; ER823. Indeed, the hold rooms have become known as “hieleras,” or freezers. ER496-497. Needless to say, sleeping under these conditions is extremely difficult, and often impossible. ER848.
Even children are subjected to such treatment. Although the Border Patrol’s policy is to provide mats to juveniles “when possible” (ER124, ER165),
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Defendants’ data shows that they provided substantially fewer mats than the number of children detained. ER265; ER523, ER525. Video surveillance confirms that children were forced to sleep on cold concrete surfaces without mats. ER854-858; ER390. Other detainees report children crying through the night due to the cold. ER640; ER668-669.
Sleep is made all the more difficult by severe overcrowding. Defendants have set hold-room capacities based on the erroneous assumption that the individuals held in them will not need to lie down. ER160; ER18. As a result, the space afforded class members is demonstrably insufficient. Surveillance footage reveals people crushed wall-to-wall in hold rooms overnight:
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ER392. In some instances, individuals are forced to sleep near or in the hold rooms’ toilet stalls. ER486; ER837. In other cases, some have to sit or stand for all or part of the night because there is insufficient room for everyone in the cell to lie down. ER434.
ER390. One man reported that, due to overcrowding, he and 15 others were forced to remain standing throughout the night and were unable to sleep. ER615.
3. Sanitation and personal hygiene The conditions in which class members are held are also highly unsanitary. ER480-481. Many arrive at the Tucson Sector stations dirty from days of travel in the desert. ER454-455; ER282-283. Nevertheless, as the district court found, “Defendants fail to recognize the basic human need to wash.” ER24.
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In fact, class members are never given the ability to clean themselves during the entirety of their confinement. ER454-455; ER826. All but two of the stations lack shower facilities that detainees are permitted to use. ER172-173. Even at those stations, they are virtually never allowed to shower. ER524 (less than 1% of detainees reportedly received a shower).
Aside from the lack of showers, class members are not even able to properly wash their hands—not when they arrive, not after they use the toilet, and not before they eat. ER489-490. That is because Defendants regularly fail to provide hot water, soap, and towels. ER489-490. In fact, nearly all of the stations lack hot water in their hold rooms. ER490; ER264-265. Soap is not available consistently: inspections revealed that one station provided no soap at all in its hold rooms, and others had soap dispensers that were broken or empty. ER488. And while the employee restrooms have paper towels, none are provided to class members. ER282-283.
Defendants also do not reliably provide other hygiene products. Women often must go without sanitary napkins. ER524-525 (half of one percent of detainees received feminine hygiene supplies); ER455. Babies often go without clean diapers. ER644 (eighteen-month-old child without clean diaper for 19 hours). Toothbrushes and toothpaste are also rarely provided. ER534 (according
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to Defendants’ database only 9% of detainees received toothbrush or toothpaste); ER489; ER524.
The lack of basic hygienic products is made worse by the unsanitary conditions in which class members are kept: if they are not dirty when they arrive at the stations, they will be by the time they leave. The hold room floors, walls, and fixtures are covered in filth and sometimes mold. ER483-485. And class members spend prolonged periods of time surrounded by trash because cleaning services at the stations are infrequent and inadequate. ER545. Indeed, the photo below depicts a mother changing her child’s diaper on top of a Mylar sheet while both are surrounded by trash:
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ER386; see also ER545-546 (single water jug used by a dozen detainees over the course of five days never cleaned); ER491 (no place in stations for cleaning of water coolers provided to detainees).
Much of this filth derives from the toilets class members are provided. The toilets are in the hold room and usually surrounded by a low brick wall (an area in which individuals are sometimes forced to sleep due to overcrowding). ER486. Many leak and are stained with built up grime from overuse. ER487. Cleaning staff also fail to clean common touch points or to segregate cleaning supplies for toilets from food preparation areas. ER494.
Defendants’ policy requires hold rooms to have 1 toilet per 15 detainees (ER279)—a ratio substantially higher than that recommended by the American Correction Association. See ER437 (1 toilet per 12 men and 1 toilet per 8 women). But Defendants often do not meet even their own standard. ER437. For example, on one occasion there was a single toilet for 40 people; on another there were two toilets for 60 people; and at other times there were three working toilets for 90 people. See ER615-616; ER620-621; ER659.
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ER357. Matters are made worse by the ubiquitous lack of trash cans. ER481; ER438.
Even in the toilet stalls, there are often no trash cans for feminine napkins or diapers. ER481. Coupled with the lack of adequate cleaning services, this deficiency ensures that the hold rooms and toilet stalls are regularly covered in trash. ER481-482; ER545.
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ER365. 4. Medical care
Defendants’ failure to ensure the proper identification and treatment of the medical needs of the vulnerable population they house compounds the problems associated with the stations’ unsanitary conditions. While the Tucson Sector stations held roughly 65,000 individuals during 2016, none of the stations has a single medical professional on staff. ER171-172. Instead, Defendants rely on
15

Border Patrol agents—who are not medical professionals, and who generally have received nothing more than first-aid training—to assess class members’ needs for medical care. ER768-769; ER115-116; ER564-565.
The only medical screening that occurs (if any occurs at all) is in the field, where Border Patrol agents scan the physical condition of apprehended individuals to determine if any are in need of treatment. ER768-769; ER115-116; ER564-565. These agents are supposed to fill out certain informal medical information “checklists,” but the forms are rarely used. ER115; ER150-151; ER842. Even when used, the forms do not cover many important medical issues—failing to ask, for example, about dehydration, mental health issues or suicide, skin problems, or tuberculosis. ER318-319. And the agents filling out these forms are not trained medical professionals able to discern whether an individual has any particular needs beyond emergency medical care that require additional attention. ER319. As a result, the agents are likely to miss signs of infectious diseases such as measles and chicken pox—which may spread rapidly through the overcrowded population. ER286; ER322-323.
In addition to conducting these “screenings,” Border Patrol agents are responsible for ensuring that class members have access to prescription drugs. Agents confiscate all non-U.S. prescribed medication and then decide whether the individuals who were carrying that medication should be referred to a doctor to
16

secure replacements. ER458; ER769; ER154. Class members report having their medication confiscated and never replaced—including, for example, prescription medications needed to treat an ovarian cyst and a heart condition. ER616-617; ER514. They also report agents ignoring their requests for needed medication. ER513.
Border Patrol agents also determine whether individuals will receive any other medical care. ER769; ER154. Internal emails show that at least some agents do not take class members’ complaints seriously. ER815 (mocking one detainee’s illness and referring to others having “fake” heart attacks). And Defendants’ own data shows that instances in which class members receive medical assistance are astonishingly rare. ER538. At other detention facilities, it is not unusual for roughly half of those in custody to require medical treatment upon admission. ER327 (testimony of Dr. Goldenson that, in facilities he has worked with, roughly 40-50% of incoming detainees require medication); see Graves v. Arpaio, 48 F. Supp. 3d 1318, 1340 (D. Ariz. 2014) (“Almost half of inmates booked each day are identified as needing further evaluation by a registered nurse”). By contrast, during the period sampled, the Tucson Sector stations obtained medical treatment for only 527 (3%) of the roughly 17,000 people held. ER538. As Plaintiffs’ expert noted, this figure is especially remarkable given that many class members have
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been apprehended after days of travel through the desert without sufficient food, water, or medicine, and thus are particularly high-risk. ER509-510.
Numerous class members report having their requests for medical assistance ignored. ER458; ER506-507. For example, one agent told a mother that there was no medicine for her child suffering an ear infection. ER630. Another agent told a woman who experienced heavy, sustained vaginal bleeding that it was just her period. ER634. Another dismissed a man’s deep gash on his chest as “nothing.” ER664.
5. Food and water Finally, individuals held at the Tucson Sector stations are also often deprived of adequate water and food. Due to the nature of their journey across the desert, dehydration is a serious risk for class members. ER510; ER817. But adequate potable water is often not available. ER318; ER444-445. Some of the stations rely on “bubblers” that are attached to the toilets in the hold rooms. But many of these bubblers are inoperative. ER446-447. Even when not broken, the bubblers are likely to be infected by fecal matter due to their proximity to the toilets and the systemic lack of soap. ER485. At other stations, Defendants provide water in five-gallon coolers. ER444-445. But because of a lack of cups, class members sometimes have to drink straight from the coolers or use discarded juice boxes. ER444-445; ER545-546. In one case, surveillance footage shows a
18

dozen individuals—none of whom was ever given a cup—drinking out of the same plastic jug over the course of five days. ER445-446.
Defendants’ provision of food is little better. Many class members are not fed for 12 hours or more. ER527-528 (5,575 instances of food gap extending 15 hours or more; 2,425 instances of gap extending 20 hours or more; and 1,400 instances of gap extending 24 hours or more). ER448-449. Even when they do receive food, it is nutritionally inadequate: every meal consists of some combination of a microwavable burrito, snack-size crackers, and a small fruit juice. ER25; ER448; ER835. And class members are made to fear losing even these paltry meals, as Border Patrol agents threaten to withhold food to keep them quiet. ER450.
B. Procedural History 1. Plaintiffs seek judicial relief
In June 2015, Plaintiffs filed suit on behalf of themselves and all others similarly situated. As relevant here, they alleged that Defendants hold the people in their custody in conditions that violate their Fifth Amendment right to Due Process. ER717. The district court certified a class of “all individuals who are now or in the future will be detained at a CBP facility within the Border Patrol’s Tucson Sector.” ER559-560.
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Plaintiffs then moved for a preliminary injunction to prevent Defendants from continuing to treat the individuals held in these stations in an unconstitutional manner. In support of their motion, Plaintiffs cited evidence derived from detainee declarations, expert inspections and reports, Defendants’ tracking data, and video surveillance footage. ER393-425. Plaintiffs’ access to the latter two categories of evidence was secured, in part, by the district court’s order sanctioning Defendants for willfully destroying video surveillance evidence. ER599, ER602.1 The vast majority of the critical facts regarding the conditions of confinement in the Tucson Sector—including the Border Patrol agents’ role in the medical screening program, the total lack of beds, and the near-total deprivation of showers—are undisputed.
2. The district court orders preliminary relief After a two-day evidentiary hearing, the district court granted Plaintiffs’ request for an injunction in part. ER6; ER32. The district court observed that civil detainees such as Plaintiffs are entitled to conditions of confinement at least as humane as those accorded to criminal detainees held in jails or prisons. ER13-14. And as the district court emphasized, the Defendants openly admitted that the conditions in the local jail were far superior to those confronting individuals held in the Tucson Sector stations. ER14.
1 More recently, the district court found that the Defendants had violated its prior orders and imposed additional sanctions for their repeated spoliation of video surveillance evidence. ER36-37.
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Applying the four-factor test for preliminary relief, the district court determined that the Plaintiffs had shown “a likelihood of success on the merits” of their claims, that Plaintiffs would suffer irreparable harm in the absence of a preliminary injunction, that the balance of equities was in their favor, and that an injunction was in the public interest. ER31-32. Accordingly, the district court ordered, among other things, that Defendants comply with certain of their written policies (including the National Standards on Transport, Escort, Detention, and Search, known as “TEDS”), and that Defendants ensure that class members have access to adequate food, potable water, working sinks and toilets, and personal hygiene items. ER10; ER32.
But the district court did not grant Plaintiffs the relief they sought in three areas in particular: medical screening, sleeping arrangements, and showers.
With respect to medical screening, the district court correctly noted that “denying, delaying, or mismanaging intake screening violates the Constitution,” which “require[s Defendants] to provide a system of ready access to adequate medical care.” ER27. The district court further concluded that the evidence showed Defendants were not providing adequate medical screening or care. ER2930. But in response to these constitutional violations, the district court simply ordered Defendants to (1) comply with their existing written policies and (2) ensure that all Border Patrol agents consistently use the TEDS medical
21

screening checklist currently used only sporadically. ER30. The district court’s order thus did not address the primary constitutional deficiency in the Defendants’ existing medical program: the unqualified Border Patrol agents who remain tasked with making the critical determinations regarding class members’ medical needs. ER27.
With respect to sleeping accommodations, the district court recognized that “[d]etention facilities (and prisons) must provide detainees held overnight with beds and mattresses,” and that “the absence of either violates detainees’ due process rights.” ER16 (quoting Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989)). It rejected Defendants’ attempt to invoke as a suitable comparison the “holding cells used at a jail facilities for its booking process,” finding that booking in such facilities “take[s] hours,” while the “processing being conducted at the Border Patrol stations . . . takes days.” ER18. The district court further concluded that Defendants plainly violated this constitutional requirement: as the undisputed facts show, despite holding large number of individuals overnight, Defendants never provide beds and only rarely provide even mats. ER15-16. But rather than compel adherence to these constitutional principles, the district court simply ordered Defendants to provide detainees held longer than 12 hours with mats and Mylar sheets—which they can use while sleeping on the hold rooms’ concrete benches and floors. ER32. The district court never explained
22

why it allowed Defendants to withhold the beds it expressly recognized were constitutionally required.
With respect to personal hygiene, the district court recognized that “[a] sanitary environment is a basic human need” that the government must meet. ER20. It also concluded that Defendants were not satisfying this need because class members “are being denied the ability to wash or clean themselves for several days.” ER25. But the district court concluded that showers were not required. ER24-25. Instead, it simply ordered Defendants to “provide some means or materials for washing and/or maintaining personal hygiene when detainees are held longer than 12 hours.” ER25.
3. The district court denies reconsideration Defendants filed a motion for reconsideration and/or clarification of the district court’s order. In their motion, Defendants asked whether they could satisfy the requirement that they provide class members with “some means or materials for washing” by granting them access to showers in the two stations where showers are “available for detainee use,” and handing out “adult body wipes” in all other locations. ER55; ER60. The district court denied the motion for reconsideration. ER3. Regarding Defendants’ request for clarification, the district court declared that its order was “clear.” ER3. Condoning Defendants’ proposed use of adult body wipes, the
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district court explained that Defendants need only furnish detainees “some means to maintain personal hygiene,” and that showers were not necessary. ER3.
Plaintiffs filed a timely notice of appeal. ER44-50. Defendants have crossappealed. ER39-43.
SUMMARY OF ARGUMENT The Fifth Amendment’s Due Process Clause guarantees civil detainees adequate conditions of confinement. Indeed, civil detainees such as Plaintiffs here are generally entitled to better treatment than pretrial criminal detainees, who are in turn entitled to better treatment than convicted prisoners. But in many crucial respects, Defendants’ treatment of the individuals it houses in the Tucson Sector Border Patrol stations falls far below even the minimal standards that prevail in jails or prisons. And nothing inherent in the purpose or nature of Plaintiffs’ confinement can justify such abhorrent treatment—Defendants’ purely financial excuses are insufficient as a matter of well-established law. The district court correctly acknowledged many of these legal principles. Yet it failed to recognize the full extent of Defendants’ constitutional violations or to provide an adequate remedy for those affected. First, the district court erred when it concluded that unqualified Border Patrol agents may both conduct the medical screening of class members and determine whether they can continue taking prescription medication. This Court
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has held that detainees’ constitutional right to medical care includes both a right to adequate medical screening and a right to access needed medications. As this Court has also recognized, for these rights to have any real meaning, qualified medical professionals must perform the critical tasks of screening those the government takes into custody and ensuring they have the medications they need. The district court’s order must be modified to ensure that Defendants’ medical policies comport with these basic constitutional requirements.
Second, the district court abused its discretion by failing to direct Defendants to provide class members with beds when they are held overnight. As the district court correctly concluded, Plaintiffs have a right to beds, not just mats on the floor. But the district court ordered Defendants to provide only floor mats. The unduly limited scope of this relief was not and cannot be justified. Given the undisputed facts establishing the deprivation of beds and the continued harm that Plaintiffs suffer as a result, the district court should have ordered Defendants to begin the process of providing the beds that the Due Process Clause requires.
Third, the district court also erred in concluding that Defendants could satisfy their obligation to ensure Plaintiffs’ personal hygiene simply by giving them adult body wipes. In holding that showers are not constitutionally required, the district court cited the relatively abbreviated nature of class members’ stays in these stations. But even prisoners and jail inmates are generally entitled to shower
25

at a more frequent rate than the civil detainees held in the Tucson Sector. There is no justification for subjecting Plaintiffs to worse treatment. Indeed, after trudging through the desert and then being packed with others who have done the same, members of the Plaintiff class are far more likely to need showers than criminal detainees. This Court should reverse the district court’s order and direct it to require showers as well.
STANDARD OF REVIEW This Court reviews the district court’s grant or denial of a preliminary injunction for abuse of discretion. Harris v. Bd. of Supervisors, L.A. Cty., 366 F.3d 754, 760 (9th Cir. 2014). A plaintiff is entitled to preliminary injunctive relief when she shows: (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). Additionally, if a plaintiff demonstrates that there are “serious questions going to the merits and a hardship balance that tips sharply” in her favor, she is entitled to preliminary injunctive relief so long as there is also a likelihood of irreparable injury and the injunction is in the public interest. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2009).
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In evaluating the district court’s assessment of these factors, this Court accepts the district court’s factual findings unless clearly erroneous, id., but it reviews de novo the “district court’s interpretation of the underlying legal principles.” Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013) (internal quotation marks omitted). The district court “necessarily abuses its discretion when it bases its decision on an erroneous legal standard.” Harris, 366 F.3d at 760 (internal quotation marks omitted). If the district court identifies “the correct legal standard,” it abuses its discretion when its application of that standard is “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (internal quotation marks omitted).
ARGUMENT I. THE DUE PROCESS CLAUSE REQUIRES THE GOVERNMENT TO
PROVIDE CIVIL DETAINEES WITH ADEQUATE CONDITIONS OF CONFINEMENT A. Civil Detainees Are Entitled To Considerate Treatment
Consistent With The Nature And Purpose Of Their Detention Whenever the government takes individuals into custody, the Constitution requires that it provide them the basic necessities of life, including “adequate food, shelter, clothing, and medical care.” Youngberg v. Romeo, 457 U.S. 307, 324 (1982). “The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders
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him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” DeShaney v. Winnebago Cty. Dept. of Social Servs., 489 U.S. 189, 199-200 (1989) (emphasis in original).
The scope of the government’s duty depends on the purpose of confinement. The government’s obligations with respect to convicted prisoners are the least onerous. Incarcerated in institutions designed to punish, and shielded only by the Eighth Amendment’s prohibition against “cruel and unusual” punishment, prisoners are entitled solely to the “minimal civilized measure of life’s necessities.” Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009) (internal quotation marks omitted).
The Constitution guarantees more favorable treatment to detainees awaiting criminal trial. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Because such individuals have not yet been convicted, their rights are secured by the Due Process Clause, which “requires the government to do more than provide the minimal civilized measure of life’s necessities.” Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004) (internal citation and quotation omitted). Instead, the government must ensure that pretrial detainees are not subjected to conditions that “amount to punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979).
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This focus on “‘punishment’ does not mean that proof of intent (or motive) to punish is required,” though such proof would suffice. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74 (2015); accord Castro v. Cty. of L.A., 833 F.3d 1060, 1069-70 (9th Cir. 2016) (en banc) (recognizing that whether conditions amount to “punishment” requires application of an objective standard), cert. denied, 137 S. Ct. 831 (2017). “Rather, to constitute punishment, the harm or disability caused by the government’s action must either significantly exceed, or be independent of, the inherent discomforts of confinement.” Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004). Conditions unrelated to “legitimate governmental objectives,” or even excessively harsh in relation to such legitimate objectives, qualify as “punishment” proscribed by the Constitution. Kingsley, 135 S. Ct. at 2474; Bell, 441 U.S. at 539 n.20.
Civil detainees, in turn, are entitled to even more “considerate treatment.” Jones, 393 F.3d at 932 (quoting Youngberg, 457 U.S. at 321-22). Due process “requires that the nature and duration of [their] commitment bear some reasonable relation to the purpose for which [they] are committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972). At the “bare minimum,” civil detainees—like individuals held pending criminal trial—cannot be “subjected to conditions that ‘amount to punishment.’” Jones, 393 F.3d at 932. And because civil detainees are entitled to more favorable treatment than criminal detainees, the conditions prevailing in jails
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and prisons establish the minimum requirements: if a civil detainee is “confined in conditions identical to, similar to, or more restrictive than those in which his criminal counterparts are held,” then he is presumptively “being subjected to ‘punishment’” in violation of the Constitution. Id.; see id. at 933 (“[P]urgatory cannot be worse than hell.”).
It bears emphasis, moreover, that the prevailing conditions in jails represent the constitutional floor for civil detainees. Comparing the conditions that face civil detainees to those facing criminal detainees can minimize the rights of civil detainees—a court may be tempted to simply presume that the constitutional standards established for criminal detainees should translate directly to the civil context. But civil detainees are entitled to even better treatment, and any deprivations must be justified by some aspect of the purpose for which they are detained. Id. at 932-33. The government cannot satisfy its constitutional obligations simply by meeting the minimal standards that govern in the criminal context.
B. Plaintiffs’ Treatment In The Tucson Sector Stations Is Inconsistent With Due Process
Given the foregoing, there can be little question that the conditions of confinement in the Tucson Sector stations contravene the Constitution. The individuals held in these facilities are not criminals, or even charged; they are civil detainees entitled to the full protection of the Due Process Clause. Zadvydas v.
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Davis, 533 U.S. 678, 693 (2001); see Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012) (“mere unauthorized presence in the United States is not a crime”). Thus, not only must the government provide them with the basic necessities of life afforded to all detainees, it must ensure they are accorded the more “considerate treatment” that their civil status demands. Jones, 393 F.3d at 932 (internal quotation marks omitted).
But Defendants do nothing of the sort. Indeed, Defendants fail to provide these individuals—many of whom are detained in these facilities for 72 hours or longer (supra p. 6)—with proper medical care, beds, nutritional food, basic hygienic materials, or an opportunity to adequately bathe. As even Assistant Chief Patrol Agent George Allen—Defendants’ primary witness at the evidentiary hearing—acknowledged, someone arrested for armed robbery and booked into a local jail would “[a]bsolutely” enjoy better conditions of confinement than those suffered by the civil detainees at the Tucson Sector stations. ER181.
No legitimate governmental objective is or could be served by requiring Plaintiffs to endure such deprivations. The government’s purpose in holding individuals in these facilities is to process them for release or transfer to another agency. ER590. Denying these civil detainees adequate medical care and screening, requiring them to sleep on the floor, depriving them of showers and other basic hygienic needs—none of this treatment has any “reasonable relation to
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the purpose for which [they] are committed.” Jackson, 406 U.S. at 738. Nor can other legitimate goals, such as maintaining security or effectively managing the facilities, justify such treatment. Jones, 393 F.3d at 932 (describing such “[l]egitimate, non-punitive government interests”). Plaintiffs can be processed in a secure and efficient environment without being subjected to inhumane conditions of confinement.
Instead, the sole justifications Defendants offer for treating class members in this fashion are economic: it would cost money to provide adequate medical care, appropriate sleeping arrangements, or showers. E.g., ER592. But of course, the same might be said of any prison, jail, or other detention facility—it would always be easier (and cheaper) to deny detainees medical treatment, sleeping accommodations, and showers. For that reason, as this Court has repeatedly held, the government cannot justify such continuing deprivations by invoking fiscal concerns. See, e.g., Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (“Lack of resources is not a defense to a claim for prospective relief because prison officials may be compelled to expand the pool of existing resources in order to remedy continuing Eighth Amendment violations.”); Wright v. Rushen, 642 F.2d 1129, 1134 (9th Cir. 1981) (similar). “Unconstitutional conditions cannot be tolerated because constitutional requirements are difficult for [Defendants] to fulfill.” Lareau v. Manson, 651 F.2d 96, 110 n.14 (2d Cir. 1981).
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Accordingly, as further detailed below, Due Process requires that civil immigration detainees be provided with medical screening conducted by properly trained staff, with beds, and with the means to ensure their personal hygiene, including showers. No government purpose can justify the denial of these basic needs. II. THE DISTRICT COURT COMMITTED LEGAL ERROR IN
FAILING TO ORDER DEFENDANTS TO PROVIDE CONSTITUTIONALLY ADEQUATE MEDICAL CARE A. The District Court Erroneously Concluded That Unqualified
Border Patrol Agents Can Control Access To Medical Care As the district court properly recognized, the Constitution entitles all detainees to “a system of ready access to adequate medical care.” Hoptowit v. Ray, 682 F.2d 1237, 1253-54 (9th Cir. 1982); see ER27. This rule applies whether individuals are detained “for a term of life” or “merely for the night.” Runnels v. Rosendale, 499 F.2d 733, 736 n.3 (9th Cir. 1974) (internal quotation marks omitted); see City of Canton v. Harris, 489 U.S. 378, 381, 392 (1989) (detainee may have constitutional claim for inadequate care even if she “was released from custody” “[a]fter about an hour”). But the district court was mistaken as to who may serve as an appropriate gatekeeper to such medical care. The district court concluded that medically untrained, unqualified Border Patrol agents may both: (1) conduct medical screening at intake, and (2) determine class members’ access to medication. ER30.
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The district court erred as a matter of law in both respects, because the Constitution requires that these critical tasks be performed by qualified medical professionals. Hoptowit, 682 F.2d at 1253 (district court’s determination regarding the constitutionally permissible qualifications of personnel making medical decisions is a “conclusion[] of law”). In making these legal errors, the district court necessarily abused its discretion. Zepeda v. I.N.S., 753 F.2d 719, 724 (9th Cir. 1983).
1. Medically untrained border patrol agents cannot perform constitutionally adequate medical screening
The district court fundamentally erred by leaving the medical screening of detainees to either their own self-reporting or the suspicions of untrained law enforcement agents. The constitutional right to adequate medical care requires the government to provide those it detains with treatment by trained individuals who are capable of rendering professionally responsible medical diagnoses. Toussaint v. McCarthy, 801 F.2d 1080, 1111-12 (9th Cir. 1986) (right to adequate care violated if “unqualified personnel regularly engage in medical practice”); Hoptowit, 682 F.2d at 1252 (same). At the intake stage, this right to competent treatment encompasses a right to prompt screening by medical staff, which is necessary to identify health emergencies, medication needs, and contagious diseases requiring quarantine. Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187-91 (9th Cir. 2002).
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Thus, in Gibson, this Court held that inadequate jail intake screening violates detainees’ right to medical care. Id. Although the county in that case had implemented policies requiring “medical staff” to screen detainees, it delayed screening for “combative” individuals, which meant that many detainees with urgent mental-health issues would not receive a prompt “evaluation by a trained medical staff member.” Id. 1189-90. In reversing the grant of summary judgment in favor of the county, this Court made clear that the need for adequate, professional screening at the intake stage was a constitutional imperative. Id.
The Second Circuit reached a similar conclusion in Lareau. There, “no screening of incoming inmates [was] done by any medical personnel,” and the “only intake medical evaluation [was] that of a corrections officer who note[d] obvious medical or psychiatric problems.” 651 F.2d at 102. The Second Circuit held that such untrained screening was constitutionally inadequate. Id. at 109. Indeed, particularly as to “communicable diseases,” the “failure to adequately screen newly arrived inmates” threatened “the well-being of [all] inmates,” and thus constituted “‘punishment’ in violation of the Due Process Clause.” Id.
The Tenth Circuit has also held that the Constitution requires adequate medical screening. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1319-20 (2002). In Olsen, the county had an “intake screening procedure for undefined mental illness or ‘psychiatric disorders,’” but it allowed purportedly “‘health trained correctional
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deputies’ to use their discretion in dealing with sundry ‘mental disorders.’” Id. at 1310-11. As a result, the plaintiff received no care for his obsessive-compulsive disorder during the several hours he was detained. Id. The Tenth Circuit held that, despite the officers’ nominal status as “health trained,” the county violated detainee’s constitutional rights if it failed to adequately train those officers to identify and handle the symptoms of obsessive-compulsive disorder. Id. at 131920. The court explained that untrained officers could not be “left with discretion in determining whether an inmate suffers from a psychological disorder requiring medical attention.” Id.
Here, Defendants have violated, and continue to violate, these wellestablished principles. Despite detaining 65,000 people in 2016 alone, the Tucson Sector stations admittedly do not have a single medical professional on their staff. ER171-172. Instead, class members “are preliminarily screened in the field by apprehending agents.” ER597; ER115. With only basic first-aid training, these agents conduct “a basic field interview” of each individual, which involves just “brief questioning” and a “kind of pretty common sense looking at somebody, are they injured, are they bleeding, are they hobbling, is there something wrong with their leg, are they, you know, sweating profusely, coughing.” ER98-99; ER116; ER810. After arriving at “the facility, the same type of thing is done,” although agents may “ratchet it up a little bit further” by employing “a checklist.” ER116.
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The district court’s order countenances such constitutionally inadequate practices. The district court readily acknowledged that Defendants’ screening process was “cursory.” ER30. Yet the district court nevertheless allowed untrained Border Patrol agents to continue screening class members so long as: (1) agents use the same “Medical Screening Form” at all stations; and (2) the form is modified to comply with TEDS by including questions about “physical and mental health concerns,” “prescription medications,” and “pregnancy and whether a detainee is nursing.” ER30.
But because this screening process will still be administered by agents lacking medical training, the district court’s order does not address the principal constitutional problem. As a result, the policies the district court approved do not provide Plaintiffs constitutionally adequate medical screening—even if combined, and even if followed uniformly. The Constitution requires competent medical screening from trained, qualified personnel; reliance on class members’ selfreporting and the suspicions of medically untrained agents is insufficient. See, e.g., Gibson, 290 F.3d at 1187-90.
2. Medically untrained border patrol agents cannot provide constitutionally adequate care with respect to medication
Untrained Border Patrol agents are also constitutionally prohibited from acting as the gatekeepers to Plaintiffs’ medication. The Constitution guarantees individuals meaningful access to medicine while in custody. Lolli v. Cty. of
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Orange, 351 F.3d 410, 420 (9th Cir. 2003) (barring government from denying insulin to “detainee whom it has reason to believe is diabetic”); Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970) (prohibiting government from denying inmate “authorized medicine that he needed to prevent serious harm to his health”). Meaningful access to medicine requires that trained healthcare professionals safeguard and dispense medications. Hoptowit, 682 F.2d at 1252-54 (holding that prisoners’ constitutional rights violated by allowing “inadequately trained” staff to “dispense medications”); see Toussaint, 801 F.2d at 1111-12 (holding that constitutional right to medical care is violated if “unqualified personnel regularly engage in medical practice,” like dispensing medication).
Accordingly, the government may not allow untrained law-enforcement officers to confiscate medication without providing immediate access to those medicines when necessary—regardless of how long an individual is held. See Gibson, 290 F.3d at 1189-90; see also Mitchell v. Aluisi, 872 F.2d 577, 578-81 (4th Cir. 1989) (Wilkinson, J.) (confiscating medication may be unconstitutional even if detention lasted only “three and one-half hours”). Thus, in Gibson, this Court held that a policy requiring the confiscation of detainees’ prescription medication at the intake stage “exacerbated” the constitutional violation resulting from a lack of medical screening. 290 F.3d at 1189. The policy required officers to confiscate and turn over to medical staff any medication found on a detainee, and then
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required staff to secure the medication or designate it “for follow up care.” Id. But because the policy “did not include using the medication to determine and alleviate the arrestee’s immediate medical needs,” the policy contributed to the detainee’s constitutional injury. Id.
The district court’s order will permit Defendants’ treatment of Plaintiffs to continue to fall below constitutional standards. It is undisputed that Border Patrol agents routinely confiscate and withhold the medications of class members, or otherwise deny them access to medicine during confinement. ER511-512. In one particularly notable instance, agents confiscated prescription pain medication from a woman—who was seven-months pregnant and suffering from a dislocated ankle—even though she was prescribed that medication at a U.S. medical facility immediately before being taken to the station. ER653-654. The agents withheld the pregnant woman’s medication even though she “yelled from the pain and begged for the pills,” telling her not to cry because she “was just going to be deported.” ER653-654.
The record is replete with comparable evidence, including:  The government confiscated and withheld a woman’s “medication
for an ovarian cyst” for the entire “12 hours” she was confined, even though she “had the prescription in [her] bag.” ER624.  The government confiscated and withheld a woman’s migraineheadache medicine after she and her three-year-old daughter turned themselves in to border patrol. ER648-649.
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 The government ignored a man’s plea for the prescription medication he needed to treat a painful heart condition. ER616.
The district court, however, concluded that Defendants need only ask class members questions about prescription medications at the intake stage and then follow TEDS thereafter. ER30. In so holding, the district court failed to recognize the government’s constitutional obligations. TEDS permits detainees to access their medication during “general processing” if—but only if—the medication was “prescribed in the United States, validated by a medical professional if not U.S.prescribed, or in the detainee’s possession during general processing in a properly identified container with the specific dosage indicated.” ER744; see U.S. Customs and Border Protection, National Standards on Transport, Escort, Detention, and Search § 4.10 (Oct. 2015), https://www.cbp.gov/sites/default/files/documents/cbpteds-policy-20151005_1.pdf (last checked March 30, 2017). Unless a detainee is carrying a labeled U.S. prescription or is able to have her medication verified by U.S. doctors (which few if any class members likely are), the government has no policy regarding the dispersal of her or her children’s medication while in custody. ER744. Thus, the district court’s order allows Border Patrol agents to continue to confiscate, withhold, and dispense at their discretion potentially life-saving medication—despite having no medical licensing or training. That contravenes
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this Court’s decisions. Toussaint, 801 F.2d at 1111-12; Hoptowit, 682 F.2d at 1252-54.
B. Plaintiffs Are Entitled To Preliminary Relief Requiring That Qualified Medical Professionals Perform These Critical Tasks
Once the district court’s legal errors are taken into account, it is plain that Plaintiffs are entitled to greater preliminary relief than was granted them. The district court’s order should be modified to ensure that qualified medical professionals conduct medical screening and make the critical determinations regarding the confiscation and replacement of medications. Plaintiffs have established each of the requirements for such preliminary relief.
First, Plaintiffs have established a likelihood of success on the merits. As explained above, the Constitution requires that trained medical staff screen detainees and secure access to prescription medication. See supra pp. 34-40. And there is no factual dispute as to whether Defendants meet these obligations; indeed, the Tucson Sector stations employ no medical professionals at all. ER170-171; see also ER120 (acknowledging Border Patrol agents are the “conduit” to medical care).
Second, Plaintiffs will suffer irreparable harm if the district court’s order is not modified. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres, 695 F.3d at 1002 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). That is particularly true when
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(as here) the government continues to deny that it has violated any constitutional rights. Id. As the district court found, Plaintiffs presented substantial evidence that the government needlessly exposed them to countless “medical risks associated with being unable to continue taking prescription medications or being exposed to communicable diseases.” ER30. But because the district court’s order did not remove the primary source of this problem, Plaintiffs continue to face these constitutionally unacceptable risks.
Third, the balance of equities favors Plaintiffs. As this Court has held, the government “cannot suffer harm from an injunction that merely ends an unlawful practice.” Rodriguez, 715 F.3d at 1145. And when the choice is “between financial concerns and preventable human suffering,” this Court has “little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (holding that “physical and emotional suffering” are “far more compelling than the possibility of some administrative inconvenience or monetary loss to the government”).
Fourth, granting Plaintiffs preliminary relief against these unconstitutional practices is also in the public interest. Indeed, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994), cited with approval in Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002). That
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maxim holds particularly true here. Preventing the spread of communicable diseases through adequate medical screening is undoubtedly in the public interest. Preventing the unnecessary pain and suffering of immigrant detainees through adequate medication policies is likewise in the public interest. And while the public also has an interest in the enforcement of its immigration laws, that interest is not jeopardized by an appropriate preliminary injunction in this case: nothing in federal immigration law or policy justifies—much less compels—inadequate medical screening or a lack of meaningful access to medication. Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2499 (2012) (“Discretion in the enforcement of immigration law embraces immediate human concerns.”). The public interest thus warrants enjoining the government’s callous violation of these fundamental constitutional rights. III. HAVING CORRECTLY HELD THAT DUE PROCESS REQUIRES
PROVIDING THE DETAINEES WITH BEDS, THE DISTRICT COURT SHOULD NOT HAVE ALLOWED THAT UNCONSTITUTIONAL DEPRIVATION TO CONTINUE The district court’s refusal to order Defendants to provide Plaintiffs with beds should also be reversed. The district court properly identified the correct legal rule, expressly recognizing that this Court’s precedent requires that detainees be provided with beds and mattresses and that the “use of floor mattresses . . . is unconstitutional ‘without regard to the number of days a prisoner so confined.’” ER16 (citations omitted). But the district court then directed Defendants to do
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exactly what it had acknowledged to be unconstitutional, ordering Defendants to provide “floor mattresses”—more accurately, mats that are at best an inferior approximation of mattresses—and floor mattresses only. The district court abused its discretion in allowing Defendants to continue to inflict such plainly unconstitutional conditions on the individuals it detains.
A. The District Court Correctly Determined That The Constitution Requires That Civil Detainees Held Overnight Be Given Mattresses And Beds
The district court got the law right: forcing civil detainees to sleep overnight on the floor—with or without a mattress—violates Due Process. As this Court held in Thompson v. City of Los Angeles, “a jail’s failure to provide detainees with a mattress and bed or bunk runs afoul of the commands of the Fourteenth Amendment.” 885 F.2d 1439, 1448 (9th Cir.1989) (emphasis added), overruled on other grounds by Bull v. City & Cty. of San Francisco, 595 F.3d 964, 980-81 (9th Cir. 2010) (en banc).
This constitutional right to sleep in a bed is triggered whenever a pretrial or civil detainee is held overnight. For example, the plaintiff in Thompson was forced to spend only two nights on a cell floor, and yet he was still deemed entitled to a bed. Id. This Court’s holding—that the “uncontroverted allegation that [Thompson] was provided with neither a bed nor even a mattress unquestionably
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constituted a cognizable Fourteenth Amendment claim,” id.—did not turn on how many nights an individual is detained.
The decisions on which Thompson relied confirm this understanding. In Lareau, the Second Circuit upheld the district court’s determination that the overcrowded conditions at the Hartford Community Correction Center violated the constitutional rights of pretrial detainees and sentenced inmates alike. 651 F.2d at 109-11. On the issue of floor mattresses, the court brooked no exceptions and set no temporal limits. Characterizing the use of floor mattresses as “egregious,” it held the practice unconstitutional “without regard to the number of days for which a prisoner is so confined.” Id. at 105. It issued a “blanket prohibition . . . against the quartering of inmates on mattresses on cell floors,” a prohibition that (unlike the other constitutional requirements identified) was categorical and not subject to an emergency exception. Id. at 108.
Similarly, in Union County Jail Inmates v. Di Buono, the Third Circuit addressed conditions of confinement at New Jersey’s Union County Jail that resulted from a “statewide prison overcrowding emergency.” 713 F.2d 984, 986 & n.1 (3d Cir. 1983). The district court held that the “totality of circumstances resulting from overcrowding at the Jail, and most notably forcing pre-trial detainees to sleep on mattresses placed on the floor, constituted a violation of detainees’ due process rights.” Id. at 98889 (emphasis added). Although the
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Special Master’s report concluded that “requiring detainees to sleep on mattresses laid adjacent to toilets in single cells, for more than a few days” constituted punishment in violation of the Fourteenth Amendment, its recommendation was categorical: “the floor mattress practice should be eliminated.” Id. at 994 & n.11 (emphasis added) (citation omitted). The district court and the Third Circuit agreed, condemning in no uncertain terms the “unsanitary and humiliating practice of forcing detainees to sleep on mattresses placed either on the floor adjacent to the toilet and at the feet of their cellmates, or elsewhere in the Jail.” Id. at 996.
Finally, in Anela v. City of Wildwood, six women were arrested at 11:15 P.M. and confined in unfurnished holding cells until 11 A.M. the next morning. 790 F.2d 1063, 1064, 1069 (3d Cir. 1986). Although the district court dismissed their claim, the Third Circuit reversed, holding that forcing pretrial detainees to sleep on holding cell floors for one night “constituted privation and punishment in violation of the Fourteenth Amendment.” Id.
As these decisions make plain, jail inmates are entitled to beds even when their confinement lasts only a night. Plaintiffs, as civil detainees, cannot be subject to worse treatment. Jones, 393 F.3d at 932. To the contrary, if the Constitution requires that criminal detainees be given beds—and detainees in local jail are in fact given beds, as Defendants admitted (ER181-182; see also ER829)—then Plaintiffs are at the very least entitled to beds. Id.
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Defendants cannot avoid this obligation simply by asserting that the Tucson Sector stations are intended to serve as mere processing centers, not detention centers. E.g., ER130. Whatever the stations are supposed to be is not what they actually are. Defendants’ aspirational descriptions of how the stations should work do not diminish their constitutional obligations to provide beds to those who are detained overnight. Defendants might well address their ongoing constitutional violation by expediting processing times so that Tucson Sector detainees no longer require beds. But because the undisputed facts show that class members are often held for days, the stations cannot be compared to the short-term holding cells used in jails or police stations where individuals are held for mere “hours,” as the district court recognized. ER18; see also Anela, 790 F.2d at 1064, 1069 (police station booking facility required to provide beds when detainees held overnight).
Nor can Defendants evade their constitutional obligations by asserting that it might be “expensive” to retrofit the Tucson Sector stations to provide for beds (or to otherwise ensure that Plaintiffs have beds through, for example, faster processing). ER592. Such a “basically economic” interest—an interest, essentially, “in housing more prisoners without creating more prison space”— cannot justify forcing civil detainees to sleep on the floor. Lareau, 651 F.2d at 104; see supra p. 32.
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B. The District Court Abused Its Discretion In Failing To Direct The Government To Remedy This Constitutional Violation
Despite correctly recognizing these governing legal principles (ER16-18), the district court permitted Defendants to continue to violate the Constitution. ER20. The district court did not explain why it failed to enforce the constitutional mandate entitling detainees to beds, as opposed to mere floor mats. Nor could it have offered any explanation that would withstand scrutiny. Quite to the contrary, each of the preliminary injunction factors weighed heavily in favor of Plaintiffs’ request for more fulsome relief. Because the district court did not and could not offer any logical reason for not requiring Defendants to begin immediately complying with the Due Process Clause, it abused its discretion. Hinkson, 585 F.3d at 1261 (“the court of appeals must reverse if the district court’s determination is ‘illogical or implausible’”).
To start, there can be no doubt that Plaintiffs have demonstrated a likelihood of success on the merits. As the district court recognized, the law is clear: civil detainees are entitled to beds. ER16. There is, moreover, no factual dispute regarding Defendants’ noncompliance with this constitutional requirement: Defendants do not provide beds to any class members, no matter how long they are held. ER122; ER782. There is no remaining uncertainty—Defendants are engaged in a continuing violation of the Constitution.
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Nor can the district court’s refusal to remedy this ongoing constitutional violation be justified on the ground that Plaintiffs will suffer no irreparable harm. Again—as the district court expressly recognized (ER31)—a constitutional violation always causes irreparable harm. Melendres, 695 F.3d at 1002. And as it stands, the district court’s order does little to remediate the deplorable conditions depicted in the photographs above. See supra pp. 9-10. That class members now have mats on which to lie may mitigate, to some extent, the extreme cold and obvious discomfort they suffered when they were forced to sleep, largely unclothed, directly on the hard concrete. ER19. But they will still be lying on the floor next to toilets and garbage receptacles, huddled together cheek to jowl and head to toe. The Constitution forbids such conditions of confinement, Thompson, 885 F.2d at 1448, yet Plaintiffs continue to suffer the harm of being forced to endure them.
If the district court’s decision to order Defendants to provide mats alone rested instead on a determination that the balance of equities or the public interest weighed against more complete relief, that determination was equally illogical. Defendants may well need to spend time and money to ensure they comply with their obligation to provide beds. ER592. But as discussed (see supra p. 32), such “financial concerns” cannot outweigh the harms caused when the government violates constitutional rights, Lopez, 713 F.2d at 1437, and the public interest
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necessarily favors the protection of such rights, Sammartano, 303 F.3d at 974. There is no reason for Plaintiffs to suffer through any unnecessary delay before their constitutional rights are vindicated. Cf. Lareau, 651 F.2d at 111 & n.15 (ordering that the mandate issue immediately because “it is important that the appellants take steps immediately to rectify the conditions considered by all members of the court to be violative of detainees’ rights”).
“In fashioning a remedy for constitutional violations, a federal court must order effective relief.” Toussaint, 801 F.2d at 1087; see Melendres, 784 F.3d at 1265 (“injunctive relief must be tailored to remedy the specific harm alleged”) (internal quotation marks omitted). The district court’s order in this case does not accomplish that goal. By failing to direct the government to begin this remedial process, the district court abused its discretion. This Court should remand with instructions that the district court order Defendants to present it with a plan as to how they will ensure that detainees held overnight have beds and mattresses rather than just floor mats. IV. THE DISTRICT COURT COMMITTED LEGAL ERROR IN
FAILING TO RECOGNIZE THAT CIVIL DETAINEES ARE ENTITLED TO SHOWERS A. Plaintiffs’ Constitutional Right To Adequate Hygiene Includes
The Ability to Shower The district court acknowledged the government must provide those in its custody with adequate resources to ensure their personal hygiene. ER20; see
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Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996); Hoptowit, 682 F.2d at 1246. Its understanding of what this constitutional right to hygiene encompasses, however, was unduly narrow. The district court believed that Defendants may satisfy their constitutional obligations merely through the provision of adult body wipes. ER24-25; ER1, ER3. But civil detainees such as Plaintiffs are constitutionally entitled to have access to showers, and thus the district court erred as a matter of law. Zepeda, 753 F.2d at 724.
Indeed, it has long been established that prisoners—who are shielded only by the Eighth Amendment and not the more protective Due Process Clause—are entitled to showers. Thus, in Toussaint, this Court affirmed a district court order requiring that a state prison provide even those inmates in segregation with shower facilities that have “adjustable valves for hot and cold water.” 801 F.2d at 111011. Such facilities were necessary to “reduce the adverse effects of confinement in a filthy environment.” Id.
In concluding that Plaintiffs are entitled to less considerate treatment, the district court emphasized the “temporary” period of time in which Tucson Sector detainees are forced to go without showers. ER24. In support, it cited a pair of out-of-Circuit decisions concluding that prisoners and criminal detainees could be denied showers for three days or more without violating the Constitution. ER2425 (citing Shakka v. Smith, 71 F.3d 162, 168 (4th Cir. 1995), and Griffin v. S.
51

Health Partners, Inc., No. 1:12CV-P174-M, 2013 WL 530841, at *9 (W.D. Ky., Feb. 11, 2013)).
But this Court’s precedent requires more of the government even as to convicted prisoners. In Toussaint, this Court affirmed an injunction that guaranteed prison inmates showers at least “three times per week,” a more frequent rate than that contemplated in either of the non-binding decisions on which the district court relied. Toussaint v. McCarthy, 597 F. Supp. 1388, 1399 (N.D. Cal. 1984); see Toussaint, 801 F.2d at 1111.
More important, Plaintiffs here are civil detainees. As such, they are entitled to “‘more considerate’ treatment than [their] criminally detained counterparts.” Jones, 393 F.3d at 932 (quoting Youngberg, 457 U.S. at 321-22). In denying civil detainees the ability to shower altogether even though their detention may last three days or even longer, Defendants are not providing “more considerate treatment.” To the contrary, individuals detained in jail generally receive far better treatment: industry standards require that jail inmates have access to showers at least once a day. ER454-455. Defendants’ refusal to provide the individuals in their custody with even this minimal standard of cleanliness is for that reason alone presumptively unconstitutional. Jones, 393 F.3d at 932.
As a practical matter, moreover, Plaintiffs have even greater need for access to showers than do the jail inmates who regularly receive them. Class members
52

often reach the Border Patrol stations after walking through the Arizona desert for days or even weeks, and they arrive covered in dirt. ER454; ER22. Then, still wearing their soiled clothes, they are herded into the overcrowded holding cells, where they are pressed together with numerous other individuals in a similarly unhygienic state. ER20; ER831. The “adult body wipes” the district court countenanced cannot be sufficient in this context. These wipes are advertised as a “great alternative” to showers for “bicyclists, runners, campers, travelers, hikers, commuters, golfers, picnics, beaches, playgrounds, motorcyclists, [and] after the gym.” ER54. Although Plaintiffs might generously be categorized as “travelers” or “hikers,” their hygienic needs undoubtedly exceed those of a person completing a round of golf. Nor do Plaintiffs have the requisite privacy, or even space, to use these wipes effectively.
Such a deprivation cannot be justified. No legitimate government purpose is furthered by refusing to permit detainees to shower. Detainee processing is not made more accurate, nor is Border Patrol station security advanced, by depriving class members the opportunity to properly clean themselves. Instead, the only government interest that might by furthered by this practice is financial—and that interest, again, cannot justify substandard conditions of confinement. Peralta, 744 F.3d at 1083.
53

B. Plaintiffs Are Entitled To Preliminary Relief Requiring The Provision Of Showers
Because the district court misunderstood the underlying constitutional right, it committed legal error, thus necessarily abusing its discretion in granting Plaintiffs only partial relief. Harris, 366 F.3d at 760. For many of the same reasons detailed above (see supra pp. 41-43, 48-50), Plaintiffs have established each of the prerequisites for the more expansive relief they seek.
Because it is undisputed that Defendants do not provide showers in at least six of the eight Tucson Sector stations, Plaintiffs have established both a likelihood of success on the merits and the threat of irreparable harm. Plaintiffs have shown the Constitution requires that Defendants provide them with showers. Supra pp. 50-53. As such, Plaintiffs have necessarily demonstrated they will succeed on the merits. See Rodriguez, 715 F.3d at 1138-39. And depriving Plaintiffs of this constitutional right undoubtedly causes irreparable harm. That is true both because the denial of a constitutional right always produces irreparable injury, Melendres, 695 F.3d at 1002, and because providing showers will improve hygiene and therefore prevent the potential spread of communicable disease, including MRSA and skin ailments. ER439. Plaintiffs should not continue to be forced to endure such health risks.
Likewise, given the constitutional rights at stake, the balance of equities and the public interest favor Plaintiffs—whatever the budgetary considerations that
54

Defendants might invoke. E.g., Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014) (“[B]y establishing a likelihood that Defendants’ policy violates the U.S. Constitution, Plaintiffs have also established that both the public interest and the balance of the equities favor a preliminary injunction.”). Defendants have suggested that a strict 12-hour deadline for all showers might produce certain administrative complications. ER55. While such considerations might provide reason to afford Defendants flexibility in devising a plan to provide showers, it cannot justify their continued refusal to provide showers to anyone in six of the eight Tucson Sector stations. ER54, ER60. This Court should ensure that Defendants immediately begin to take the actions the Constitution requires them to take.
55

CONCLUSION For the foregoing reasons, the district court’s order should be reversed insofar as it grants Plaintiffs only partial preliminary relief. The case should be remanded with instructions directing the district court to issue a preliminary injunction that will also secure Plaintiffs’ constitutional rights to adequate medical care, bedding, and showers.

Dated: March 30, 2017

Respectfully submitted,

LOUISE C. STOUPE PIETER S. DE GANON MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522
COLETTE REINER MAYER MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 813-5600
LINTON JOAQUIN KAREN C. TUMLIN NORA A. PRECIADO NATIONAL IMMIGRATION LAW CENTER Suite 2850 3435 Wilshire Boulevard

s/ James R. Sigel JAMES R. SIGEL ROBERT J. ESPOSITO ELIZABETH G. BALASSONE MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-6948 JSigel@mofo.com
DEANNE E. MAYNARD BRYAN J. LEITCH LENA HUGHES* MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 887-8740
MARY A. KENNEY MELISSA E. CROW AMERICAN IMMIGRATION COUNCIL

56

Los Angeles, CA 90010 Telephone: (213) 639-3900
DANIEL J. POCHODA BRENDA MUÑOZ-FURNISH ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, AZ 85014 Telephone: (602) 650-1854
JAMES J. CEKOLA MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, CA 92130 Telephone: (858) 720-5100

1331 G Street, NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7512
ELISA DELLA-PIANA LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444
ABIGAIL L. COLELLA MORRISON & FOERSTER LLP 250 West 55th Street New York, NY 10019 Telephone: (212) 468-8000
*Not admitted in the District of Columbia; admitted only in New York; practice supervised by principals of MORRISON & FOERSTER LLP admitted in the District of Columbia.
Counsel for Plaintiffs-Appellants Jane Doe #1, Jane Doe #2, and Norlan Flores

57

STATEMENT OF RELATED CASES PURSUANT TO CIRCUIT RULE 28-2.6
Counsel for Plaintiffs-Appellants are unaware of any related cases pending
in this Court.

Dated: March 30, 2017

s/ James R. Sigel

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on March 30, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: March 30, 2017
sf-3753040

s/ James R. Sigel James R. Sigel

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 17-15381, 17-15383
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Signature of Attorney or Unrepresented Litigant

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Sigel

("s/" plus typed name is acceptable for electronically-filed documents)

Date 3/30/2017
(Rev.12/1/16)

 
 Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 1 of 9

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10

Plaintiffs,

ORDER

11 v.

12 Jeh Johnson, et al.,

13

Defendants.

14

15

On November 18, 2016, this Court entered a preliminary injunction in favor of

16 Plaintiffs. Defendants sought reconsideration, which was denied by the Court on January

17 3, 2017. On March 2, 2017, both parties filed interlocutory cross-appeals.

18

On April 13, 2017, the Defendants filed a Motion to Stay this Court’s proceedings

19 or at least stay the expert discovery, or in the alternative, grant Defendants a 90-day stay 20 of production of video evidence. The latter, alternative, request pertains to the 21 Defendants’ responsibility to preserve video evidence, which was the subject of the

22 Court’s entry on March 13, 2017, of a civil contempt ruling against Defendants for

23 destruction of video recordings since January 2016.

24

To be clear, the Defendants do not ask this Court to stay the directives regarding

25 conditions of confinement contained in its preliminary injunction, which required 26 Defendants to provide sleeping mats and some means to maintain personal hygiene to all 27 detainees after 12 hours, required the universal use of Defendants’ Medical Screening 28 Form, and required ongoing monitoring to ensure compliance with the Border Patrol

Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 2 of 9

1 2008 Hold Rooms and Short Term Custody Policy (the Policy) and the National

2 Standards on Transport, Escort, Detention, and Search (TEDS standards) for personal

3 hygiene, sanitation, and nutrition. (Order (Doc. 244)).

4

Both parties agree that the standard of review is as follows:

5

“[T]he power to stay proceedings is incidental to the power inherent in

every court to control the disposition of the causes on its docket with

6

economy of time and effort for itself, for counsel, and for litigants.” Landis

v. N. Am. Co., 299 U.S. 248, 254 (1936). A court’s discretionary exertion of

7

this power must be based on a weighing of the competing interests that will

be affected by the granting or refusal to grant a stay. Among these

8

competing interests are the possible damage which may result from the

granting of a stay, the hardship or inequity which a party may suffer in

9

being required to go forward, and the orderly course of justice measured in

terms of the simplifying or complicating of issues, proof, and questions of

10

law which could be expected to result from a stay. CMAX, Inc. v. Hall, 300

F.2d 265, 268 (9th Cir. 1962) (citing Landis, 299 U.S. at 254-55). A trial

11

court may “find it is efficient for its docket and the fairest course for the

parties to enter a stay of an action before it, pending resolution of

12

independent proceedings which bear upon the case.” Leyva v. Certified

Grocers of California, Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979). In fact,

13

the general principle that a district court possesses the inherent power to

control its docket “applies whether the separate proceedings are judicial,

14

administrative, or arbitral in character, and does not require that the issues

in such proceedings are necessarily controlling of the action before the

15

court.” Id.

16 (Motion for Stay (Doc. 291) at 3-4.) 1 The burden is on the moving party to show that

17 these competing interests favor granting the stay. Landis, 299 U.S. at 257.

18

The Issues on Cross Appeal:

19

The Defendants ask the Ninth Circuit Court of Appeals to vacate the preliminary

20 injunction because the Court did not properly apply Bell v. Wolfish, which precludes pre-

21 conviction conditions of detention that amount to punishment because the conditions of

22

23

1The Court notes that a stay pending appeal is extraordinary relief. Normally, the Court would be guided to grant a stay when four conditions are met: (1) the movant establishes

24

a likelihood of success on the merits; (2) the movant would suffer irreparable injury if a stay is not granted; (3) the movant shows that the stay would not substantially harm the

25

other party; and (4) the movant demonstrates that the stay would serve the public interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); NRDC v. Winter, 502 F.3d 859, 862 (9th

26

Cir. 2007). The movant need not always show a strong likelihood of success on the merits; instead, the movant “may be entitled to prevail if he can demonstrate a substantial

27

case on the merits and the second and fourth factors militate in his favor.” Winter, 502 F.3d at 863. Here, however, the Defendants do not seek a stay of the injunction but only

28

seek to stay the proceedings. The Court agrees with the parties that the standard of review is more akin to an interlocutory appeal of an order resolving fewer than all claims

asserted in the action. See 28 U.S.C. 1292(b).

- 2 -

Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 3 of 9

1 confinement in Tucson Sector border patrol facilities serve legitimate governmental

2 objectives. Defendants also argue that the Due Process Clause of the United States

3 Constitution does not impose a mandate for sleeping mats after 12 hours. (Reply (Doc.

4 296) at Ex. 1.)

5

On the other hand, the Plaintiffs ask the Ninth Circuit Court of Appeals to find that

6 this Court abused its discretion in fashioning injunctive relief because it did not go far

7 enough in respect to its directives for constitutionally adequate medical care, bedding,

8 and showers. (Response (Doc. 293) at Ex. 1.)

9

Preliminarily, the Court found the evidence reflected that Defendants failed to

10 actually provide the conditions of confinement that they asserted were the constitutional

11 status quo because the record did not reflect border patrol facilities to be in compliance

12 with the 2008 Policy and the TEDS standards. The Court assumed the 2008 Policy and

13 TEDS to be a constitutional minimum for border patrol station conditions of

14 confinement. The Court clarified that to be constitutional the bedding being provided to

15 all detainees had to include sleeping mats for detainees held longer than 12 hours and

16 these detainees had to be provided with some means for maintaining personal hygiene;

17 the Defendants had to implement the universal use of its intake medical questionnaire,

18 and compliance monitoring was needed to ensure Defendants maintained the asserted

19 status quo including the above directives, general maintenance, sanitation, and providing

20 for the nutritional needs of detainees.

21

If affirmed, this Court anticipates the Ninth Circuit Court of Appeals will provide

22 helpful discussion regarding the applicable constitutional standard for border patrol

23 station detentions, especially for conditions of confinement related to sleeping and

24 personal hygiene. If reversed in favor of Plaintiffs, the Defendants’ likelihood of

25 prevailing will substantially decrease and further preliminary relief may be warranted. If

26 reversed in favor of the Defendants, the Plaintiffs’ case will be more likely to fail.

27 Therefore, knowing the outcome of the interlocutory appeal will assist in the orderly

28 course of justice—as measured by the simplification or complication of issues, proof, and

- 3 -

Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 4 of 9

1 questions of law which may be expected to result from the stay and a decision by the

2 Ninth Circuit Court of Appeals.

3

Stay of proceedings, stay of expert discovery, or 90-day stay of video recordings

4

The Court looks at the competing interests in respect to the possible damage which

5 may result from the granting of a stay, the hardship or inequity which a party may suffer

6 in being required to go forward or not.

7

On April 28, 2017, the Court approved the parties’ stipulation to continue expert

8 discovery to be 30 days following this Court’s resolution of this motion. Sua sponte, the

9 Court correspondingly continued the remaining case management deadlines for closing

10 all discovery, for filing dispositive motions and the pretrial order. Before this extension,

11 discovery was scheduled to end on June 30, 2017, with expert discovery to begin April

12 28, 2017. According to the Plaintiffs, discovery is nearly complete but for the expert

13 reports and depositions.

14

Plaintiffs object to staying expert discovery but admit that their experts cannot

15 prepare the required reports until the full extent of spoliation sanctions is known. In other

16 words, the Plaintiffs intend to opine regarding conditions of confinement based on

17 negative inferences and/or preclusion where there has been destruction of video recording

18 evidence. Plaintiffs ask “to continue expert deadlines until the later of (1) 30 days after

19 the Court rules on this motion, as set forth in the Parties’ joint motion, or (2) 45 days

20 from the date of this opposition, in light of Defendants’ ongoing video issues and to

21 enable the Court to resolve Plaintiffs’ forthcoming request for evidentiary sanctions.”

22 (Response (Doc. 293) at 10.)

23

It appears that Defendants have still not assessed the full extent of the video

24 recording evidence lost due to spoliation which began January 2016. The Defendants’

25 request for a 90-day stay of production of any additional video recordings strongly

26 suggests destruction of evidence continues to date. See Motion for Stay (Doc. 291) at 5)

27 (admitting to inaccuracies in its February 3, 2017, Response to Ps’ Motion for Sanctions

28 (Doc. 275), Ex. 7: Station by Station Status Report of Video Archiving, which was relied

- 4 -

Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 5 of 9

1 on by the Court in granting limited sanctions to the Plaintiffs and reporting assiduously

2 working to identify the scope of video recording and archiving issues in the Tucson

3 Sector). According to Defendants, they need 90-days for the vendor they have hired to

4 “visit Tucson Sector stations to audit the conditions of existing technical infrastructure,

5 diagnose root causes of recording and archiving issues, and recommend corrective

6 action.” Id. Defendants submit the Plaintiffs will not be prejudiced by this stay because

7 “they have received thousands of hours of video footage and presently have not requested

8 any additional video from Defendants.” Id. Plaintiffs respond that “they do need and

9 intend to request additional video, especially recent video,” which Plaintiffs need to

10 monitor Defendants’ compliance with the PI Order.” (Response (Doc. 293) at 6.)

11

The Court has reviewed the parties’ last stipulated extension of the case

12 management deadlines, which was made December 22, 2016, after the Court’s entry of

13 the preliminary injunction. The parties agreed, and the Court approved, for discovery of

14 electronically stored information (ESI), to be continued for Defendants to substantially

15 complete it on or before February 28, 2017, with weekly rolling ESI productions being

16 made as agreed to by the parties. Expert discovery would then begin, with all discovery

17 to end on June 30, 2017, and dispositive motions to be filed by July 31, 2017. It appears

18 to this Court that by the time the parties sought to extend the time for expert discovery all

19 other discovery was, or should have been, completed. Plaintiffs are correct that discovery

20 is nearly complete but for the expert reports and depositions. This is important because

21 the Defendants’ responsibility to produce evidence during discovery has ended. The

22 Court will grant a 30 day extension for the parties to complete discovery in this case, with

23 expert discovery to follow.

24

This does not mean that the Defendants no longer have discovery responsibilities,

25 including supplementing the video tape recordings, pursuant to Fed. R. Civ. P. 26(e),

26 which by all accounts are incomplete. The Defendants also have responsibilities under

27 the preliminary injunction to provide video recordings necessary for monitoring

28 constitutional compliance. Given the changed posture for future video recordings,

- 5 -

Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 6 of 9

1 however, the parties should meet and confer to review the video recording procedures

2 adopted for purposes of discovery to determine whether there are less burdensome video

3 recording measures that can be implemented for monitoring purposes and for

4 supplementing the video recording, if necessary.

5

The Court notes that the Defendants have not sought relief due to impossibility nor

6 even argued that their video recording obligations are too burdensome, except after the

7 fact of making disclosures and in response to Plaintiffs’ complaints of noncompliance.

8 This posture continues now. The Defendants Reply omits arguments related to the 90-

9 day stay requested for production of video recordings.

10

This case cannot move forward until discovery is complete: expert discovery and

11 further motions for sanctions due to spoliation, such as adverse inferences, depend on the

12 video recordings that are finally and ultimately produced by the Defendants; dispositive

13 motions depend on this fact discovery and the expert discovery, and ultimately the

14 question of evidentiary spoliation must be addressed before the case can proceed to trial.

15 And so, the Court has reviewed the record relevant to the video-recording discovery,

16 including Defendants’ Notice of Compliance with the Court’s Order for expedited

17 discovery (Doc. 53), Defendants’ Second Notice of Compliance (Doc. 55), Order Re:

18 Sanctions (Doc. 64), Defendants’ Motion to Modify Order for Sanctions (Doc. 66), Joint

19 Status Report Re: Video Productions (Doc. 71), Stipulated Discovery Plan Re: Additional

20 Production of Video Data (Doc. 123), Order Re: Stipulation (Doc. 132), and Order for

21 Sanctions (Doc. 285). The Court also recalls being misled by the status report in

22 Defendants’ Response to the Plaintiffs’ last Motion for Civil Contempt (Doc. 275), which

23 Defendants now admit was “inaccurate.” (Motion for Stay (Doc. 275) at 5.)

24

Based on this review, it appears to this Court that the past discoveries of non-

25 compliance have all been made as a result of the Defendants’ production of video

26 recording evidence to Plaintiffs. Since the June 2016 discovery that spoliation of video

27 recordings was occurring, the Defendants have submitted they are trying to assess and

28 still need more time to assess the full extent of the destruction. This is essentially the

- 6 -

Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 7 of 9

1 basis for the current requested 90-day stay of video recording production. Given the

2 Defendants’ continued inability for approximately one year to assess and correct video

3 recording problems, the Court is concerned that the admitted spoliation of video

4 recordings may necessitate a continuance in discovery of video recordings even though

5 all other discovery, except expert discovery, is closed. The Court is equally concerned

6 that the true extent of spoliation will not be known until the video evidence is produced.

7 The Court finds that a stay in production of video recordings will only delay the

8 assessment of spoliation and postpone Plaintiffs’ analysis of whether or not to seek an

9 extension of time to conduct further video recording discovery due to spoliation.

10

As noted above, the Court must weigh the competing interests that will be affected

11 by granting or refusing to grant a stay of the discovery related to the border patrol station

12 video recordings. The Court looks at the parties’ competing interests in respect to the

13 possible damage which may result from the granting of a stay, and the hardship or

14 inequity which a party may suffer in being required to go forward or not. The hardship

15 and inequity falls decidedly on the Plaintiffs. Staying this discovery, suspends not only

16 resolution of the case but puts the Plaintiff at an evidentiary disadvantage. It creates a

17 chronic state of evidentiary suspension, with any end in sight being totally dependent on

18 the Government’s ability to correct a problem which it has been unable or unwilling to

19 correct for over a year.

20

Twice the Defendants have asserted they inadvertently spoliated video evidence

21 and the Court has awarded sanctions in favor of the Plaintiffs. (Order (Doc. 64); Order

22 (Doc. 285)). But sanctions were necessarily limited because without knowing the extent

23 of the destruction, “neither this Court nor the Plaintiffs can determine whether the failure

24 to preserve the video evidence is de minimus.” (Order (Doc. 285) at 11.) The Court has

25 expressed its inclination to either preclude argument or evidence and/or allow an adverse

26 inference to favor Plaintiffs where spoliation of video recordings adversely affects them.

27 Id.

28

- 7 -

Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 8 of 9

1

Here, there has been, and may be ongoing, spoliation of video recordings.

2 Granting a 90-day stay of production of video recordings will not move the parties closer

3 to knowing the full extent of the missing record and may in fact further prejudice the

4 Plaintiffs if ongoing video recordings continue to be spoliated. Given the importance of

5 the video recordings to monitor ongoing compliance with the preliminary injunction, the

6 Court will not stay production of them.

7

All discovery shall close, except for expert discovery, within 30 days of the filing

8 date of this Order. Within that time, the Plaintiffs shall make their requests for

9 production in respect to video recordings. Defendants shall have 30 days to make a full

10 and complete responsive production of evidence, including any information,

11 documentation, and/or software to enable the Plaintiffs to immediately view and use the

12 evidence. After Defendants production of the video recordings, the Plaintiffs may have

13 30 days to review the evidence and seek an extension of time to continue video recording

14 discovery, if necessary due to spoliation.

15

The parties shall meet and confer regarding Plaintiffs’ ongoing video recording

16 needs for monitoring compliance with the preliminary injunction. The Plaintiffs shall

17 make every effort to conduct this monitoring with as little burden as possible to the

18 Defendants. The Court believes it is possible to strike a fair balance between Plaintiffs’

19 evidentiary needs and Defendants’ limited resources because there is no need to video

20 record every hour of every day at every station. The parties should consider whether

21 alternative evidence sources are available to offset the need for video recordings.

22

Accordingly,

23

IT IS ORDERED that the Motion for Stay of Proceedings, Stay of Expert

24 Discovery, or Alternatively 90-day Stay of Video Evidence, (Doc. 291) is GRANTED IN

25 PART AND DENIED IN PART as follows:

26

1. The discovery deadline is stayed only for expert discovery. All other

27 discovery (fact discovery) shall be completed within 90 days of the filing date of this

28 Order.

- 8 -

Case 4:15-cv-00250-DCB Document 298 Filed 05/25/17 Page 9 of 9

1

2. Within 30 days of the filing date of this Order, Plaintiffs shall make their

2 requests for production in respect to video recordings. Within 30 days of the request, the

3 Defendants shall produce the video recordings and any information, documentation,

4 software, etc. necessary for Plaintiffs to immediately view and use this evidence. Within

5 30 days of the production of the video recordings, the Plaintiffs may seek an extension of

6 time to continue fact discovery limited to conducting further video recording discovery

7 due to spoliation.

8

3. Expert discovery shall commence 30 days after the close of the fact

9 discovery, with the Plaintiffs disclosing any expert witness and their reports to the

10 Defendant first. The Defendant shall have 30 days from the date of Plaintiff's expert

11 witness disclosure to disclose any experts and their reports. Plaintiff may have 15 days,

12 thereafter, to disclose any rebuttal expert opinions.

13

4. The deadline for filing dispositive motions is extended to be 30 days

14 following disposition by the Ninth Circuit Court of Appeals of the interlocutory cross-

15 appeals and issuance of the mandate.

16

5. The deadline for filing the joint pretrial order is extended to be 30 days

17 After this Court’s disposition of any dispositive motion or, if no dispositive motions are

18 filed the joint pretrial order shall be due 30 days following disposition by the Ninth

19 Circuit Court of Appeals of the interlocutory cross-appeals and issuance of the mandate.

20

IT IS FURTHER ORDERED that the parties shall meet and confer regarding

21 procedures for future video recording needed to monitor the preliminary injunction and,

22 in good faith, should adopt procedures which impose the least possible burden on the

23 Defendants necessary to meet Plaintiffs’ discovery needs.

24

Dated this 25th day of May, 2017.

25

26

27

Honorable David C. Bury

28

United States District Judge

- 9 -

 
 Nos. 17-15381, 17-15383

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE DOE #1; JANE DOE #2; NORLAN FLORES, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants-Cross-Appellees,
v.
JOHN F. KELLY, Secretary, United States Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner, United States Customs and Border Protection; RONALD VITIELLO, Chief, United States Border Patrol; JEFFREY SELF, Commander, Arizona Joint Field Command; PAUL BEESON, Chief Patrol Agent – Tucson Sector,
Defendants-Appellees-Cross-Appellants.

Preliminary Injunction Appeals from the United States District Court for Arizona, Tucson, Hon. David C. Bury (Case No. 4:15-cv-00250-DCB)

RESPONSE AND REPLY BRIEF FOR PLAINTIFFS-APPELLANTS-CROSS-APPELLEES

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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION .....................................................................................................1
RESPONSE TO DEFENDANTS’ CROSS-APPEAL IN NO. 17-15383.................3
COUNTERSTATEMENT OF THE ISSUES............................................................3
STATEMENT OF THE CASE..................................................................................3
SUMMARY OF ARGUMENT .................................................................................3
ARGUMENT .............................................................................................................5
I. THE DISTRICT COURT IDENTIFIED AND APPLIED THE CORRECT LEGAL STANDARDS GOVERNING CIVIL DETENTION...................................................................................................5
A. The District Court Correctly Considered Bell v. Wolfish......................6
1. Bell governs pretrial criminal detention, not civil detention ......................................................................................6
2. The district court considered and applied Bell............................8
B. The District Court Did Not Err In Comparing These Detention Centers To Jails And Prisons ..............................................................12
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN REQUIRING SLEEPING MATS FOR INDIVIDUALS DETAINED MORE THAN 12 HOURS ............................................................................17
A. The 12-hour Threshold Is Not Arbitrary Or Overly Rigid..................18
B. The 12-hour Threshold Is Tailored To Plaintiffs’ Constitutional Injury ...................................................................................................20
C. The 12-Hour Threshold Is Not Unduly Burdensome..........................22
1. The 12-Hour Threshold Causes No Undue Delay ....................22

2. Defendants’ Speculative Capacity Concerns Do Not Warrant Reversal.......................................................................23
REPLY TO DEFENDANTS’ RESPONSE IN NO. 17-15381 ...............................28 I. THE DISTRICT COURT COMMITTED LEGAL ERROR IN
FAILING TO ORDER CONSTITUTIONALLY ADEQUATE MEDICAL CARE .........................................................................................28 A. Defendants’ Reliance On Medically Untrained Border Patrol
Agents Violates Due Process ..............................................................29 1. Defendants cannot distinguish precedent holding that
medical care must be provided by qualified professionals.......29 2. Defendants repeatedly mischaracterize the record in
seeking to legitimize their unconstitutional policies ................32 B. Ordering Untrained Border Patrol Agents To Comply With
TEDS Does Not Address Plaintiffs’ Constitutional Injuries ..............36 II. THE DISTRICT COURT SHOULD HAVE DIRECTED
DEFENDANTS TO SATISFY THEIR CONSTITUTIONAL OBLIGATION TO PROVIDE BEDS...........................................................38 A. Due Process Requires Defendants To Provide Beds To The
Individuals It Detains Overnight .........................................................38 B. The District Court Abused Its Discretion In Failing To Require
Compliance With This Obligation To Provide Beds ..........................41 III. THE DISTRICT COURT COMMITTED LEGAL ERROR IN
FAILING TO ORDER THE PROVISION OF SHOWERS.........................44 CONCLUSION ........................................................................................................47
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TABLE OF AUTHORITIES

CASES

Page(s)

Americans For Prosperity Found. v. Harris, 809 F.3d 536 (9th Cir. 2015) ..............................................................................35

Anela v. City of Wildwood, 790 F.2d 1063 (3d Cir. 1986) .....................................................21, 38, 39, 40, 41

Bell v. Wolfish, 441 U.S. 520 (1979)..........................................................................3, 5, 6, 7, 8, 9

Brown v. Plata, 563 U.S. 493 (2011)..........................................................................11, 12, 24, 27

City of Canton v. Harris, 489 U.S. 378 (1989)......................................................................................14, 32

Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000) ..............................................................................16

Dawoud v. Gonzales, 424 F.3d 608 (7th Cir. 2005) ..............................................................................16

Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) ..............................................................................9

Florence v. Bd. of Chosen Freeholders, 566 U.S. 318 (2012)............................................................................................15

Gibson v. Cty. of Washoe, 290 F.3d 1175 (9th Cir. 2002) ............................................................................28

Golden Gate Rest. Ass’n v. City & Cty. of San Francisco, 512 F.3d 112 (9th Cir. 2008) ..............................................................................12

Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) ......................................................................28, 35

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Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ................................... 5, 7, 8, 13, 17, 31, 40, 44, 45
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)..........................................................................................5
Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) .....................................................................31, 40, 41
Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983) ............................................................................21
McCormack v. Heideman, 694 F.3d 1004 (9th Cir. 2012) ......................................................................20, 42
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)...............................................................................46
O’Shea v. Littleton, 414 U.S. 488 (1974)............................................................................................26
Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th Cir. 2002) ..........................................................................31
Peralta v. Dillard, 774 F.3d 1076 (9th Cir. 2014) ......................................................................12, 41
Pimental v. Dreyfus, 670 F.3d 1096 (9th Cir. 2012) ..............................................................................8
Preiser v. Rodriguez, 411 U.S. 475 (1973)............................................................................................15
Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ............................................................................27
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ......................................................................21, 43
Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974) ........................................................................30, 32
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Sharp v. Weston, 233 F.3d 1166 (9th Cir. 2000) ............................................................................13
Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) ..............................................................................16
Stone v. City & Cty. of San Francisco, 968 F.2d 850 (9th Cir. 1992) ..............................................................................15
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ............................................................................25
Swift v. Lewis, 901 F.2d 730 (9th Cir. 1990) ..............................................................................10
Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989) ..........................................................14, 21, 38, 39
Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984)...................................................................44
Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986) ................................................................28, 29, 30
Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir. 1983) ...............................................................................40
United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) ......................................................................18, 38
United States v. Salerno, 481 U.S. 739 (1987)..............................................................................................7
Youngberg v. Romeo, 457 U.S. 307 (1982)..............................................................................................5
Zepeda v. I.N.S., 753 F.2d 719 (9th Cir. 1983) ..............................................................................28
STATUTES
6 U.S.C. § 211(m)(3) ...............................................................................................14
6 U.S.C. § 211(m)(6) ...............................................................................................15
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8 U.S.C. §§ 1221-32.................................................................................................26 8 U.S.C. § 1252(f)(1) ...............................................................................................26
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INTRODUCTION Plaintiffs brought this suit because of the unconscionable conditions of confinement in the eight Tucson Sector Border Patrol stations. As detailed in Plaintiffs’ opening brief, the evidence demonstrated that class members were packed into holding cells for hours and even days at a time, often without the space to lie down, and with only a thin foil blanket (if that) between them and the concrete floor. They were exposed to any number of unsanitary and unhygienic practices. And they were deprived of adequate food, water, warmth, medicine, and medical care. The district court’s order granting Plaintiffs partial preliminary relief attempted to mitigate some, but not all, of these egregious harms. Defendants would prefer to be free of even these minimal restrictions. They insist the district court applied the wrong legal standard in concluding these deplorable conditions contravened the Fifth Amendment, and that the court should have been more deferential to Defendants’ purported “legitimate objectives” for treating Plaintiffs in this inhumane fashion. They also argue that the district court abused its discretion in directing Defendants to take the minimal step of providing floor mats to individuals held for more than 12 hours, contending that class members should be relegated to sleeping directly on the floor (assuming they even have the space to lie down).

Try as they might, however, Defendants cannot evade their constitutional obligation to provide the individuals they detain with adequate conditions of confinement. The district court committed no legal error in concluding as much; to the contrary, it expressly identified and applied the very standard Defendants claim it ignored. And the district court likewise committed no abuse of discretion in tailoring its remedial order to address the constitutional harms suffered by class members detained for a sufficiently long period of time to be in need of sleep.
But the district court’s order did not go far enough. Defendants continue to violate class members’ due process rights to adequate medical care, humane sleeping accommodations, and proper hygiene. Defendants’ various attempts to invent some sort of “Border Patrol” exception to these constitutional requirements are unavailing: Plaintiffs, as civil detainees, are entitled to better treatment than is accorded to criminal detainees, not the substantially worse conditions they still endure. Far from vacating the district court’s order entirely, this Court should instead reverse it to the extent that it allows Defendants to continue indefinitely to contravene their constitutional obligations to provide Plaintiffs with adequate medical care, beds, and showers.
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RESPONSE TO DEFENDANTS’ CROSS-APPEAL IN NO. 17-15383 COUNTERSTATEMENT OF THE ISSUES
1. Whether the district court correctly identified the legal standard governing civil detainees’ constitutional right to adequate conditions of confinement.
2. Whether the district court acted within its discretion in tailoring its remedial order on sleeping mats to class members’ need for sleep.
STATEMENT OF THE CASE Plaintiffs rely on their previous statement of the case (Opening Br. 5-24).
SUMMARY OF ARGUMENT I. The district court correctly identified the legal standards governing civil detainees’ right to adequate conditions of confinement. Contrary to Defendants’ contentions, Bell v. Wolfish, 441 U.S. 520 (1979) is of limited relevance here, as it applies to pretrial criminal detainees, not civil detainees such as Plaintiffs. Bell does, however, supply the standard for determining whether the conditions of confinement in the Tucson Sector stations are unconstitutional because they are “punitive.” The district court both identified and applied Bell for just that purpose. Indeed, the district court expressly recognized that conditions of confinement amount to punishment if they are “excessive in relation to [a] legitimate governmental objective”—precisely the Bell standard Defendants invoke. ER12. The district court determined that Defendants are violating due process because
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Defendants could point to no objectives that might actually justify the conditions of confinement at issue, not because it failed to recognize the legal relevance of legitimate governmental objectives.
The district court also properly compared the conditions in the Tucson Sector stations to those in jails and prisons. In contending otherwise, Defendants simply ignore binding precedent holding that the confinement of civil detainees in conditions worse than those experienced by criminal detainees is presumptively unconstitutional. The district court thus did not commit legal error in recognizing that class members are entitled to treatment that is at least as considerate, and that Defendants are violating the Constitution by instead subjecting them to worse.
II. The district court acted well within its discretion in requiring Defendants to provide sleeping mats to all class members detained for 12 hours or longer. Defendants assert that the 12-hour threshold is more burdensome than necessary to protect class members’ rights. But as the district court found, class members who are held in the Tucson Sector stations for 12 hours will need to be able to lie down to sleep, and thus the remedy is directly tailored to the relevant constitutional harm. The district court did not abuse its discretion in requiring Defendants to respect this minimal subset of Plaintiffs’ constitutional rights, notwithstanding Defendants’ speculative concerns about delay and capacity issues—which are overstated in any event.
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ARGUMENT I. THE DISTRICT COURT IDENTIFIED AND APPLIED THE
CORRECT LEGAL STANDARDS GOVERNING CIVIL DETENTION As Plaintiffs explained in their opening brief (at 27-33), the Constitution compels the government to care for everyone it takes into custody. Youngberg v. Romeo, 457 U.S. 307, 324 (1982). The source of that constitutional mandate and the corresponding scope of the government’s obligations depend on the nature of the detainee’s confinement. Jones v. Blanas, 393 F.3d 918, 931-33 (9th Cir. 2004). Civil detainees such as Plaintiffs are protected by the Fifth Amendment’s Due Process Clause, and they are entitled to “more considerate treatment” than pretrial criminal detainees, who are in turn entitled to better treatment than convicted prisoners. Id. at 932 (internal quotation marks omitted). At a “bare minimum,” Plaintiffs cannot be subjected to treatment that amounts to “punishment,” id. at 932, with “punishment” defined to encompass conditions excessively harsh in relation to a legitimate governmental objective. Bell, 441 U.S. at 539 n.20; see Kingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015). Although the district court properly recognized these overarching principles (see ER11-12), Defendants now assert it applied the wrong legal standard. Defendants do not deny that Plaintiffs are civil detainees. Defs.’ Br. 31. Nor do Defendants dispute that Plaintiffs’ rights to adequate treatment are secured by the
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Fifth Amendment. Defs.’ Br. 31. Instead, relying on Bell v. Wolfish’s description of the standard governing the rights of pretrial criminal detainees, Defendants insist that the district court erred both by failing to address the government’s “operational concerns” and by considering the conditions prevailing at jails and prisons. In each respect, Defendants are mistaken.
A. The District Court Correctly Considered Bell v. Wolfish Defendants’ central contention is that the “district court erred by not evaluating Plaintiffs’ constitutional claims under Bell.” Defs.’ Br. 38. But Defendants both misunderstand Bell’s significance and mischaracterize the district court’s decision.
1. Bell governs pretrial criminal detention, not civil detention Although it undoubtedly has some relevance here, Bell does not supply the governing standard for civil detention. Instead, in Bell, the Supreme Court addressed the “constitutionality of conditions or restrictions of pretrial detention”—specifically, the conditions then prevailing in New York City’s federal jail. 441 U.S. at 535 (emphasis added). Emphasizing that a pretrial detainee “may not be punished prior to an adjudication of guilt,” the Court held that “the proper inquiry is whether th[e] conditions amount to punishment of the detainee.” Id. The Court proceeded to clarify that “if a particular condition or restriction of
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pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’” Id. at 539.
Defendants would extend this legal standard to all types of detention. They insist, for example, that “the critical question is whether detention conditions at Tucson Sector Border Patrol stations amount to ‘punishment,’” citing both Bell and United States v. Salerno, 481 U.S. 739 (1987), another case involving the rights of pretrial detainees. Defs.’ Br. 31. Similarly, Defendants insert the bracketed phrase “[civil detention]” in a lengthy quotation from Bell in which the Court was actually referring to the detention of a person “pending trial.” Defs.’ Br. 31 (quoting Bell, 441 U.S. at 537).
This Court, however, has correctly rejected the proposition that Bell’s “punishment” standard can be blindly imported into the civil detention context. As explained in Jones, “civil detainees retain greater liberty protections than individuals detained under criminal process.” 393 F.3d at 931 (citing Youngberg, 457 U.S. at 321-22). They are therefore entitled to protections “at least as great as those afforded to an individual accused but not convicted of a crime.” Id. at 932 (emphasis added). Accordingly, subjecting a civil detainee to “punishment” within the meaning of Bell surely violates due process: Bell establishes the “bare minimum” requirements for “an individual detained under civil process.” Id. But Bell does not describe the limits of civil detainees’ constitutional rights. Civil
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detainees are entitled to more than just the absence of treatment that amounts to punishment—they are entitled to conditions of confinement that “bear some reasonable relation to the purpose for which [they] are committed.” Id. at 933 (internal quotation marks omitted).
2. The district court considered and applied Bell Bell’s relevance here is thus limited to assessing whether Defendants’ treatment of the class members amounts to constitutionally forbidden “punishment.” Bell, 441 U.S. at 535; Jones, 393 F.3d at 932. Despite Defendants’ protestations, the district court rightly applied Bell for that very purpose. Defendants thus cannot establish that the district court failed to “identif[y] the correct legal rule” in granting Plaintiffs preliminary relief. Pimental v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (internal quotation marks omitted). Even a cursory comparison of Defendants’ brief and the district court’s decision demonstrates that the court invoked the same legal standard Defendants now contend it ignored. Defendants insist, for example, that, under Bell, “in order to be permissible, restrictions must (1) have a legitimate, non-punitive purpose; and (2) not appear excessive in relation to that purpose.” Defs.’ Br. 32-33 (citing Bell, 441 U.S. at 538-39). The district court said the same: “a court may infer that the purpose of a particular restriction or condition is punishment if [(1)] the restriction or condition is not reasonably related to a legitimate governmental
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objective or [(2)] is excessive in relation to the legitimate governmental objective.” ER12 (citing, inter alia, Bell, 441 U.S. at 538-39). Likewise, Defendants contend that “legitimate, non-punitive government interests include maintaining jail security and effective management of the detention facility,” and assert that correction officials’ determinations regarding such interests warrant deference. Defs.’ Br. 33 (citing Bell, 441 U.S. at 540, 546). Again, the district court said the same: “[m]aintaining institutional security and preserving internal order and discipline are essential goals,” and “courts should ordinarily defer” to the judgments of correction officials regarding the achievement of these goals. ER12 (citing, inter alia, Bell, 441 U.S. at 540 n.23, 546); see also Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004) (rejecting contention that district court “applied an erroneous legal standard” in paraphrasing Bell and condemning a jail’s policy as an “exaggerated” response to purported security concerns).
The district court also applied this standard in Defendants’ favor. Indeed, the district court was quite solicitous of Defendants’ explanations for their treatment of Tucson Sector detainees (in Plaintiffs’ view, overly solicitous). Plaintiffs, for example, challenged Defendants’ practices of illuminating the holding cells 24 hours a day and subjecting class members to continuous, sleepdepriving noise. ER18-19. The district court, however, “accept[ed]” Defendants’ assertions that the illumination is for legitimate “security reasons,” and that the
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constant noise is justified by the facilities’ need “to provide 24-7 immigration
processing.” ER18-19. It therefore refused to enjoin either of these sleep-
depriving practices—save for Defendants’ policy of “scheduling one of the three
burrito meals at 4:00 a.m.,” for which the district court found “no security reason
nor any reason related to the processing activities being conducted at these facilities.” ER19.1 Contrary to Defendants’ assertions, the district court thus
expressly “consider[ed] the Tucson Sector’s unique law enforcement purpose and
operational challenges.” Defs.’ Br. 38.
In contending otherwise, Defendants do not even identify which aspects of
the district court’s order, if any, enjoin specific practices that are justified by a
particular legitimate governmental objective. Defs.’ Br. 35-40. They are vague for
a reason. Bell would put the burden on Defendants to come forward with at least
“some evidence that their policies are based on legitimate . . . justifications.” Swift
v. Lewis, 901 F.2d 730, 732 (9th Cir. 1990). Defendants proffered security and
1 Defendants wrongly suggest that the district court relied on the constant illumination of the hold rooms in determining that Defendants deprived Plaintiffs of their constitutional right to sleep. Defs.’ Br. 22-23. But the district court expressly accepted Defendants’ justification for this practice and neither criticized nor enjoined it. ER18-19. Although the district court did subsequently determine that “the law and the facts clearly favor Plaintiffs’ position that Defendants are violating Plaintiffs’ constitutional right to sleep,” that conclusion was premised on other practices the district court did enjoin—including, most obviously, Defendants’ failure to provide even mats on which class members may sleep. ER19-20.
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management explanations for a handful of the policies challenged, such as the constant illumination (discussed above) and the practice of removing class members’ outer layers of clothing to check for contraband. E.g., ER104-105; ER126; ER172; SER904-905; SER917-918; SER950; SER952. But for the vast majority of the conditions of confinement at issue here, Defendants provided no cognizable justification for their inhumane treatment of the individuals held in the Tucson Sector stations.
Defendants’ practice of compelling class members to sleep on the concrete holding-room floors provides a fitting illustration of that failure. No witness testified that Defendants’ refusal to provide beds was the function of a security or similar concern. To the contrary, Defendants’ witnesses acknowledged that beds should be available. See ER183 (Chief George Allen: “It’s time to have that provided.”); ER210 (Defendants’ detention expert Richard Bryce: “I don’t think it’s appropriate to require someone to sleep on the floor.”).
Instead of pointing to justifications for the absence of beds, Defendants offered excuses: the stations were not designed to serve as the detention centers they have become, and it would cost money to enable them to serve that function. E.g., ER592; SER994. But of course, the government cannot justify the unconstitutionally overcrowded conditions of its prisons by asserting that they were originally designed to hold fewer people. See Brown v. Plata, 563 U.S. 493,
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539 (2011). Likewise, here the district court correctly concluded that “Defendants cannot sidestep reality by relying on the structural limitations of the Border Patrol detention facilities, i.e., that they are not designed for sleeping.” ER31. And as the district court also properly observed, the financial costs associated with fulfilling these obligations cannot validate Defendants’ failure to meet them: “a deprivation of constitutional rights cannot be justified by fiscal necessity,” and “the government may be compelled to expand the pool of resources to remedy a constitutional violation.” ER9-10 (citing Golden Gate Rest. Ass’n v. City & Cty. of San Francisco, 512 F.3d 112, 1126 (9th Cir. 2008) and Peralta v. Dillard, 774 F.3d 1076, 1083 (9th Cir. 2014) (en banc)). The district court did not commit legal error in recognizing these settled principles.
B. The District Court Did Not Err In Comparing These Detention Centers To Jails And Prisons
The district court also committed no legal error in comparing the stations to jails and prisons. The district court engaged in this analysis for a simple reason: as this Court’s precedent makes abundantly clear, the conditions of confinement faced by criminal detainees establish the constitutional floor for the treatment of civil detainees.
Defendants ignore this binding precedent. They assert, for example, that the district court noted “without further analysis” that Plaintiffs are “entitled to ‘more considerate treatment’ than those who are criminally detained.” Defs.’ Br. 20
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(quoting ER13). But the district court was simply repeating the standard this Court, in accordance with the Supreme Court’s guidance, has established: an individual “detained under civil—rather than criminal—process” is “entitled to ‘more considerate treatment’ than his criminally detained counterparts.” Jones, 393 F.3d at 932 (quoting Youngberg, 457 U.S. at 321-22); accord, e.g., Sharp v. Weston, 233 F.3d 1166, 1172-73 (9th Cir. 2000).
Similarly, Defendants contend the district court provided “no justification” for looking to “standards designed for correctional institutions” in assessing the constitutionality of the conditions prevailing in these stations. Defs.’ Br. 40. But again, the district court’s analysis was directly grounded in case law. As this Court has held, if a civil detainee “is confined in conditions identical to, similar to, or more restrictive than, those in which his criminal counterparts are held, [this Court] presume[s] that the detainee is being subjected to ‘punishment’” in violation of due process. Jones, 393 F.3d at 932. In other words, the conditions of confinement in the Border Patrol stations are presumptively unconstitutional if they are worse than those in jails or prisons—as Defendants have acknowledged is true of the conditions in the Tucson Sector stations. ER181. Defendants do not even attempt to reconcile their criticism of the district court’s approach with this binding precedent.
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Nor do Defendants identify any reason the civil detainees held in these stations should be subjected to less favorable treatment than individuals held pursuant to criminal process. Defendants focus primarily on the length of detention, asserting that people held in jails and prisons will often be confined for longer than the 12-72 hours that the class members here are typically detained. Defs.’ Br. 35, 40. But criminal detainees in jails may often be held for similar lengths of time, or even less. E.g., City of Canton v. Harris, 489 U.S. 378, 381 (1989) (considering medical treatment claim of individual held in jail for “about an hour”); Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989) (jail detainees held for two nights), overruled on other grounds by Bull v. City & Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc). Courts have made clear that such detainees are nevertheless entitled to conditions of confinement significantly better than those prevailing in the Tucson Sector stations. E.g., id. (holding jail inmates are entitled to a mattress and a bed when held overnight). The district did not commit legal error by holding Defendants to such requirements. See ER17-18.2
2 Defendants observe that Congress has defined “short-term detention” in the “Border Patrol processing centers” to be for a period of “72 hours or less.” Defs.’ Br. 22; see 6 U.S.C. § 211(m)(3). The relevance of this definition is a mystery. Even an individual confined for a “short term” is entitled to constitutionally adequate conditions of confinement, regardless of how “short-term” is defined by statute. And indeed, the cited provision demonstrates Congress’s awareness of that
(Footnote continues on next page.)
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Defendants’ other purported justifications for subjecting Plaintiffs to harsher treatment than criminal detainees do not withstand even the most passing scrutiny. Defendants emphasize that the Tucson Sector stations are located “near the point of th[e class members’] apprehension” (Defs.’ Br. 36)—but the same is generally true of jails. E.g., Stone v. City & Cty. of San Francisco, 968 F.2d 850, 852 (9th Cir. 1992) (affirming population cap imposed on one of the City’s local jails). Defendants also assert that the “characteristics and size of the population” in Border Patrol stations can vary, and that agents may be unsure prior to processing which particular individuals “may pose an imminent security threat.” Defs.’ Br. 36-37. Again, however, the very same (and often worse) is true of jails. E.g., Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 326, 336 (2012) (describing the population variations that may occur in pretrial detention centers, and noting that “[j]ails can be even more dangerous than prisons because officials there know so little about the people they admit at the outset”). Likewise, Defendants contend that the Border Patrol’s “broad authority over the border itself” has “no parallel in the criminal justice system.” Defs.’ Br. 38. That might surprise the officials exercising a State’s sovereign power to punish those who transgress its laws. Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973) (“It is difficult to imagine an
(Footnote continued from previous page.)
very obligation: Congress required inspections of “short-term detention” in Border Patrol processing centers and the issuance of “recommendations to improve the conditions of such facilities.” Id. § 211(m)(6).
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activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.”). In their effort to avoid responsibility, Defendants even attempt to tar the Plaintiffs as bad actors detained “because of their own choice[s].” Defs.’ Br. 39. But most individuals held in this nation’s jails and prisons are presumably so confined because of choices they made, and they are nevertheless entitled to humane conditions of confinement. E.g., Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979).3
At base, Defendants’ ultimate contention is that, unlike jails and prisons, these Border Patrol stations were not designed to serve as detention centers. See Defs.’ Br. 39 (emphasizing that the Tucson Sector stations are intended to “function as waystations”). But as discussed above, the stations’ intended use does not change what they are: places of confinement in which class members are often housed for what may be days at a time. Supra pp. 11-12; see also Defs.’ Br. 39 (acknowledging that “processing individuals at the border takes longer than the booking process in pre-trial detention”). As the district court properly recognized, the Constitution requires Defendants to provide at least the level of treatment to the
3 Defendants’ insinuations in this regard also ignore the complex—and often heartrending—reasons why many individuals flee their home countries and risk their lives by walking through the Arizona desert. For all too many, their lives are at even greater risk in their home countries. See Dawoud v. Gonzales, 424 F.3d 608, 612-13 (7th Cir. 2005); Colmenar v. INS, 210 F.3d 967, 973 (9th Cir. 2000).
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class members so housed that is accorded to criminal detainees, not the substantially worse treatment to which Plaintiffs are currently subjected. Jones, 393 F.3d at 932. II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
REQUIRING SLEEPING MATS FOR INDIVIDUALS DETAINED MORE THAN 12 HOURS The district court acknowledged the clear holding of this and other courts: people held in custody must be provided with “a mattress and bed or bunk.” ER16 (citing, inter alia, Thompson, 885 F.2d at 1448). Although it then inexplicably failed to require Defendants to provide the beds it recognized are constitutionally mandated (see infra pp. 38-44), the district court did impose the minimal requirement that Defendants furnish sleeping mats for all class members detained in the Tucson Sector stations for more than 12 hours. ER20. Defendants now contend that this limited (indeed, insufficient) remedy represented an abuse of the district court’s discretion. Defendants do not and cannot challenge the district court’s underlying legal conclusion that due process requires the government to provide at least some means of sleeping to those it detains (though they dispute Plaintiffs’ contention that beds are constitutionally required). See Defs.’ Br. 40-44, 50-51. Instead, Defendants object to the district court’s having drawn a line at the 12-hour mark. They offer a series of rationales
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as to why meeting even this 12-hour sleeping-mat mandate—which is well below what the Constitution actually requires—is unduly burdensome.
Because the District Court identified and applied the correct legal standard, Defendants can prevail only if they show that the court’s application of this standard was “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (internal quotation marks omitted). Defendants cannot satisfy that test, as the district court’s choice of a 12-hour threshold was both logical and supported by the record.
A. The 12-hour Threshold Is Not Arbitrary Or Overly Rigid The district court’s decision to require mats for class members held more than 12 hours was grounded in what one might think is an uncontroversial notion: individuals held “in excess of 12 hours” “need to lie down to sleep.” ER18. Indeed, Defendants do not appear to contest that after a certain number of hours any person needs to sleep, and they acknowledge that class members “may sleep while in Border Patrol custody.” Defs.’ Br. 41. But as the district court also expressly found, class members are not able to sleep if they are confined on cold concrete floors, or in spaces so crowded that some have no room to lie down. ER18. Accordingly, the district ordered that class members held for long enough
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to require sleep be provided with the mats that would enable them to lie down. ER20.
The district court’s decision to set the threshold at 12 hours is thus a logical reflection of basic human needs. Members of the Plaintiff class do not arrive at the Tucson Sector stations having only recently woken up. To the contrary, because the 12-hour clock begins to run only when the class members arrive at a Border Patrol station, ER4, they generally will have already been awake for a substantial period of time. Defendants note that several hours may elapse between an individual’s apprehension and his or her arrival at a holding facility (Defs.’ Br. 14); in fact, Defendants’ witness testified that “oftentimes by the time we get someone to the station, we’re approaching on 12 hours.” ER102. Moreover, most class members will presumably have been awake for some period before they were apprehended. By the time they have been held for 12 hours in the Tucson Sector stations, then, class members will need to sleep. Indeed, that common-sense conclusion is reflected in Defendants’ own guidance documents for the use of these hold rooms, which provides that “[w]herever possible, a detainee should not be held for more than 12 hours.” ER372.
Defendants suggest that the district court should have allowed them a longer time horizon in providing mats, or should have tied the durational threshold to the time of day. Defs.’ Br. 41. But depriving Plaintiffs of mats for a longer period—
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as would the 24-hour standard Defendants requested below in their motion for reconsideration—would, as the district court found, be “arbitrary” and “not rationally related to the need to sleep and lie down.” ER3. And especially given Defendants’ repeated emphasis that class members arrive in the Tucson Sector stations at all hours of the day and night, and that these facilities operate “twentyfour hours a day, seven days a week,” (Defs.’ Br. 2, 42), it was entirely logical for the district court to tie the sleeping-mat obligation to the number of hours class members have been in custody: the duration of custody, rather than the particular time at which it occurs, is likely to reflect each class member’s need for sleep.
B. The 12-hour Threshold Is Tailored To Plaintiffs’ Constitutional Injury
Defendants’ primary attack on this 12-hour requirement is that it is “more burdensome than necessary.” Defs.’ Br. 41. Contrary to Defendants’ assertions, however, the requirement is directly “tailored to the claimed constitutional violation.” Defs.’ Br. 41.
In contending otherwise, Defendants simply ignore the nature of the constitutional harm they have caused Plaintiffs. Defendants acknowledge that Plaintiffs are entitled to an injunctive remedy sufficient to “provide complete relief.” Defs.’ Br. 41 (citing McCormack v. Heideman, 694 F.3d 1004, 1019 (9th Cir. 2012)). But the Constitution prohibits forcing detainees—particularly civil detainees like Plaintiffs—to sleep on concrete holding-room floors, as Defendants
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did before the district court’s 12-hour mat requirement was imposed. E.g., Thompson, 885 F.2d at 1448 (“failure to provide detainees with a mattress and a bed or bunk runs afoul of the commands of the Fourteenth Amendment”); Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986) (same). 4 Affording Plaintiffs “complete relief” thus requires at least the remedy the district court imposed (and in fact, a good deal more). Because the district court’s 12-hour sleeping-mat requirement directly addressed the class members’ constitutional injury, Defendants are wrong to assert that it was excessive.
Defendants cannot avoid that conclusion by citing logistical difficulties or costs associated with fulfilling this requirement. That is because the government “cannot suffer harm from an injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013). Accordingly, where an injunction prevents (or, as here, mitigates) an ongoing constitutional violation, it is necessarily consistent with both the balance of the equities and the public interest: the class members’ “physical and emotional suffering” are “far more compelling than the possibility of some administrative inconvenience or monetary loss to the government.” Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).
4 Notwithstanding Defendants’ representations (Defs.’ Br. 9-11), some class members were denied even the thin foil blankets that Defendants provide for warmth (ER451; ER659), and even children were provided with mats only “when circumstances permit[ted]” (ER164-65; ER265).
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Or, as the district court put it in rejecting Defendants’ motion for reconsideration, “The Court cannot suspend what it believes are constitutional rights.” ER3. The district court did not abuse its discretion in reaching that conclusion.
C. The 12-Hour Threshold Is Not Unduly Burdensome Regardless, none of the supposed burdens of compliance that Defendants now cite demonstrates that the district court’s order exceeded its discretion.
1. The 12-Hour Threshold Causes No Undue Delay Defendants posit that the “twelve-hour mandate” may be “counterproductive” in certain circumstances because it may lead to delay in processing. Defs.’ Br. 42. They hypothesize an individual who arrives at a Tucson Sector station at 1:00 a.m., is still being processed at 12:55 p.m., and could potentially be transferred to ICE custody by 3:00 p.m. Defs.’ Br. 42. Defendants assert that the need to provide a mat at the 12-hour mark (i.e., as the clock approaches 1:00 p.m.) would require Border Patrol personnel to “pause [their] processing” in order to provide a mat and “document the transaction,” and that this could “delay the individual’s transfer to a longer-term facility.” Defs.’ Br. 42. But Defendants do not explain how the act of handing a person a mat and documenting this task could cause any sort of material delay. Nor, certainly, do they point to any evidence that might substantiate this claim.
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Moreover, and perhaps more significant, Defendants’ argument is based on a misunderstanding of the district court’s order. A mandate to provide mats to class members held 12 hours or longer does not mean Defendants must provide mats at exactly the 12-hour mark. The district court’s order in no way obligates Defendants to wait until the last possible minute. Indeed, especially for class members who arrive at a facility late at night, the sensible and humane course would be to provide mats at the most efficient time after it becomes apparent that they will likely be detained for more than 12 hours. Defendants thus retain significant flexibility as to how they comply with the district court’s mandate. Whatever minimal administrative difficulties the 12-hour requirement may engender, they do not render the district court’s order an abuse of its discretion.
2. Defendants’ Speculative Capacity Concerns Do Not Warrant Reversal
Defendants also object to the 12-hour threshold’s purported effect on the capacity of the Tucson Sector stations. Defendants complain that “because the sleeping mats take up space”—that is, the space necessary for an individual to lie down—there is “a risk that, during a surge or other urgent situation,” the Border Patrol stations will have insufficient capacity to hold all those they seek to detain. Defs.’ Br. 43.
Boiled down to its essence, Defendants’ argument is a direct attack on their constitutional obligations. Defendants claim they should not be expected to
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provide class members with enough room to lie down, but rather may continue to pack them in holding rooms so tightly that some class members will be forced to sleep in the toilet stalls or spend the night sitting or standing up. ER486; ER837; ER434. The district court rejected this contention, emphasizing that it had seen “direct evidence of the crowded conditions in the border patrol stations,” and “took this information into consideration when it granted the preliminary injunction.” ER2. Rightly so: the government’s failure to build or obtain adequate capacity to hold all those it seeks to detain cannot prevent courts from enforcing the Constitution. See Brown, 563 U.S. at 511 (courts “must not shrink from their obligation to enforce the constitutional rights of all persons,’” and they “may not allow constitutional violations to continue simply because a remedy” may be intrusive) (internal quotation marks omitted). The district court did not abuse its discretion in adhering to this mandate. A court cannot refuse to enforce the right to sleeping accommodations because of a possible lack of space any more than it could refuse to enforce a right to meals because there might be too many mouths to feed.
Defendants’ capacity concerns are overstated in any event. As the district court determined, their claims are belied by video surveillance evidence showing class members packed into holding rooms while other nearby rooms go unused. ER3. Defendants now assert that this evidence is explained by Defendants’ need
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to segregate detainees by age, gender, and other factors. Defs.’ Br. 43 n.13. But their contentions cannot be reconciled with the sheer number of empty hold rooms depicted in the video stills on which the district court relied, which show that those held in a single crowded room could be split into separate holding rooms without implicating Defendants’ ability to provide separate spaces for members of particular groups. E.g., ER388. Moreover, as the district court also noted in rejecting Defendants’ reconsideration motion, Defendants have claimed that local jails and ICE facilities are unable to provide excess holding capacity, but they have not “report[ed] on any other interagency efforts to relieve overcrowding at the border patrol stations.” ER3. On appeal, Defendants neither address this conclusion nor explain why improved coordination between Border Patrol and the related government agencies to which class members are transferred could not alleviate any purported capacity issues.
Defendants’ attack on the order is thus grounded in hypothetical “surges” that likely could be addressed by means other than continuing to violate class members’ constitutional rights. The district court appropriately weighed the need to address the immediate and ongoing injuries suffered by the members of the Plaintiff class more heavily than the need to accommodate the “highly speculative” concerns Defendants cite. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (in granting a preliminary injunction, a “district court need not consider
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public consequences that are ‘highly speculative’” and should “weigh the public interest in light of the likely consequences of the injunction” (emphasis in original, internal quotation marks omitted)).5
Finally, for many of the same reasons, Defendants are wrong to contend that the sleeping-mat requirement derogates “fundamental principles of national sovereignty, and may in some cases violate” 8 U.S.C. § 1252(f)(1). Defs.’ Br. 43. The cited statute prohibits classwide injunctions restraining the operation of certain statutory provisions governing the inspection, apprehension, exclusion, and removal of aliens. See 8 U.S.C. §§ 1221-32. But Plaintiffs do not seek to prevent Defendants from inspecting, apprehending, excluding, or removing aliens. Nor do they challenge the government’s power to detain individuals who are suspected of crossing the nation’s borders without proper authorization. Instead, Plaintiffs seek to enforce the Constitution’s requirement that Defendants provide those they detain with adequate conditions of confinement, including sleeping accommodations. Just as the prohibition against interference with state criminal proceedings, e.g., O’Shea v. Littleton, 414 U.S. 488, 499-500 (1974), does not prevent a federal court
5 Perhaps the best illustration of the purely speculative nature of many of Defendants’ claimed burdens is their assertion that the district court should have accounted for “the possibility that future technological developments may provide additional alternatives” to “alleviate the harm Plaintiffs’ [sic] allege.” Defs.’ Br. 42-43. Should that day arrive, Defendants might have grounds to seek modification of the district court’s order. But in the meantime, the order remains a rational way of accounting for class members’ basic human needs.
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from compelling a state to provide constitutionally adequate treatment for the convicted criminals it confines, e.g., Brown, 563 U.S. at 511, neither “principles of national sovereignty” nor Section 1252(f)(1) preclude courts from imposing classwide injunctive relief with respect to conditions of immigration detention. That is true even if these constitutional obligations may indirectly implicate the manner and means by which the government carries out its responsibilities at the border. See Rodriguez v. Hayes, 591 F.3d 1105, 1120-21 (9th Cir. 2010) (approving class of immigration detainees seeking bond hearings, and holding that Section 1252(f)(1) does not prohibit injunctive relief aimed at unconstitutional conduct not authorized by immigration statutes). Were it otherwise, courts would be powerless even to prevent Defendants from failing to provide meals or medical care altogether—requirements which might, in some hypothetical situations, lead the government to release individuals in its custody. The district court acted within its discretion in ordering Defendants to fulfill this minimal aspect of their constitutional obligation to provide adequate sleeping accommodations.
* * * * * For all of these reasons, this Court should reject the arguments advanced in Defendants’ cross-appeal.
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REPLY TO DEFENDANTS’ RESPONSE IN NO. 17-15381 Far from abusing its discretion in granting the limited relief it did provide, the district court erred in not requiring Defendants to do more to cease their ongoing constitutional violations. I. THE DISTRICT COURT COMMITTED LEGAL ERROR IN FAILING TO ORDER CONSTITUTIONALLY ADEQUATE MEDICAL CARE As Plaintiffs have explained and Defendants now concede, “the [C]onstitution requires a system of ready access to adequate medical care.” Defs.’ Br. 45. Yet Defendants contend that such medical care can be furnished by individuals who are not professionally qualified to provide it. Defs.’ Br. 45-50. Defendants offer no authority for that assertion. Nor could they: this Court has repudiated such claims for decades. E.g., Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187-91 (9th Cir. 2002) (emphasizing importance of evaluation by “trained medical staff” for arrestee held in county sheriff’s custody); Toussaint v. McCarthy, 801 F.2d 1080, 1111-12 (9th Cir. 1986) (“unqualified personnel” cannot fulfill prisoners’ medical needs); Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) (same). It should do so again here. Because the district court erred as a matter of law in accepting Defendants’ unduly narrow view of the relevant constitutional requirements, it necessarily abused its discretion. Zepeda v. I.N.S., 753 F.2d 719, 724 (9th Cir. 1983).
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A. Defendants’ Reliance On Medically Untrained Border Patrol Agents Violates Due Process 1. Defendants cannot distinguish precedent holding that medical care must be provided by qualified professionals
Both this Court and its sister circuits have long held that the constitutional right to adequate medical care encompasses a right to treatment from competent, trained medical professionals, not simply access to unqualified intermediaries. Trained individuals must both conduct the initial medical screenings of all individuals detained and make the critical decisions regarding detainees’ access to prescription medications. See Opening Br. 33-41.
Defendants attempt to characterize this precedent as inapplicable to the Tucson Sector stations. Their arguments fail at every turn.
Defendants contend, for example, that this Court’s decision in Toussaint is inapposite because there “technical associates and inmates may have been engaged in the practice of medicine,” and here Plaintiffs purportedly “do not claim that unqualified individuals are engaged in the practice of medicine at Border Patrol stations.” Defs.’ Br. 46-47. But that is in fact exactly what Plaintiffs claim: Border Patrol agents are “unqualified individuals” who cannot carry out the medical tasks Defendants currently assign them. Toussaint stands for the proposition that services furnished by “unqualified personnel” cannot discharge the
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government’s constitutional duty to provide adequate medical care. 801 F.2d at 1111-12. That principle applies with full force in this case.
Defendants are similarly unable to distinguish Gibson. Defendants assert that, unlike the county in Gibson, Defendants do not have a “policy of delaying medical screening of combative inmates,” and that “no evidence” suggests “medical care for any detainee has been delayed.” Defs.’ Br. 47. But Defendants’ screening policy is inadequate because it exposes all class members—not just combative ones—to potential delays in securing proper treatment. ER30. And ample evidence shows that medical care for class members is not just delayed but routinely denied altogether. E.g., ER616; ER634; ER653-54; ER664. If anything, Defendants’ practices are more problematic than those condemned in Gibson.
Defendants also claim that this Court’s decision in Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974), is inapposite because that case involved “unauthorized” treatment, while Plaintiffs here “are not claiming that they are being subjected to medical procedures without their consent.” Defs.’ Br. 46. Yet Defendants cannot dispute the fundamental principle established in Runnels— namely, that detainees have a constitutional right to medical care whether they are held “for a term of life” or “merely for the night.” 499 F.2d at 736 n.3. That principle squarely refutes Defendants’ assertion that the purported “brevity and
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nature of Border Patrol detention” exempts their system from constitutional scrutiny. Defs.’ Br. 48.
Nor can Defendants dismiss the relevance of the out-of-circuit precedent Plaintiffs have cited. See Defs.’ Br. 47-48. Just as due process prohibits untrained officers from screening prisoners for medical issues, Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981), so too does it prohibit untrained Border Patrol agents from screening class members for medical issues. And just as untrained officers cannot be allowed to decide whether inmates require medical attention, Olsen v. Layton Hills Mall, 312 F.3d 1304, 1319-20 (10th Cir. 2002), neither can untrained Border Patrol agents decide when class members need medical attention.
Defendants’ fundamental argument is that all of these authorities are “inapposite” because they do not involve “Border Patrol stations or any comparable detention facilities.” Defs.’ Br. 46, 48. But Defendants offer nothing that might justify their “Border Patrol” exception to the constitutional requirement of “a system of ready access to adequate medical care.” Defs.’ Br. 45-50. Indeed, because Plaintiffs are civil detainees, they are entitled to even greater constitutional protections than the individuals confined pursuant to criminal processes in Gibson, Toussaint, and the other decisions on which Plaintiffs rely. Jones, 393 F.3d at 93133. In contending otherwise, Defendants point only to the relatively short duration of most class members’ detention. But to reiterate, the Constitution does not
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permit such deprivations of medical care even for individuals released or transferred “within forty-eight hours.” Contra Defs.’ Br. 47-48; see Harris, 489 U.S. at 381-92 (right to adequate care may be violated even if detainee released “[a]fter about an hour”); Runnels, 499 F.2d at 736 n.3 (same). Defendants’ arguments cannot be squared with these basic principles.
2. Defendants repeatedly mischaracterize the record in seeking to legitimize their unconstitutional policies
Unable to evade these constitutional requirements, Defendants attempt to distort the record to suggest that Border Patrol agents are qualified to render medical care. These efforts likewise fail.
First, Defendants assert that “Border Patrol agents have training as first responders.” Defs.’ Br. 9, 47. But Defendants’ own evidence shows otherwise: while “[a]ll Border Patrol Agents receive basic first aid training,” only a “number of agents have also received first responder training, which is a 40 hour certification course.” SER909 (emphasis added). Even assuming that 40 hours of first-responder training qualified this subset of agents to conduct screenings and medication referrals (which it does not), that would be little comfort to the many remaining class members for whom such critical decisions are made by the other agents trained only to conduct a “kind of pretty common sense looking at somebody, are they bleeding, are they hobbling.” ER98.
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Second, Defendants note that “[m]any” Border Patrol agents have “training as EMTs and Paramedics.” Defs.’ Br. 9, 47. But in fact, only 265 of the “over 4,000 agents assigned to the Tucson Sector” are “trained as EMTs,” and there is an even “smaller number of paramedics.” SER897; SER909; ER117. And again, even if this limited subset of agents is qualified, the vast majority of the agents making critical screening and prescription medication decisions are not. ER115116.
Third, Defendants contend that “all medical issues are referred to the hospital when medical treatment is needed.” Defs.’ Br. 47. Yet the evidence again contradicts that claim. During the summer of 2015, Defendants’ e3DM data revealed that only 527 out of approximately 17,000 detainees were referred to a hospital. ER29-30. It strains credulity to suggest, as Defendants do, that only 527 individuals required medical treatment during this time.6 That is particularly true given that summer temperatures in the Arizona desert often reach 115 degrees or more (which can cause heat stroke and dehydration), as well as the fact that
6 Defendants argue that the district court committed clear error in accepting and relying on this figure, pointing to their expert’s testimony that Border Patrol agents referred people to medical treatment for “‘a great variety of things.’” Defs.’ Br. 45 n.14 (quoting ER187). But the types of ailments for which class members were referred says little about the frequency with which they received necessary care.
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roughly half of all people taken into custody at a typical jail require medication. ER326; ER509-511.
Fourth, Defendants assert that their expert “Dr. Harber testified that agents receive training to identify communicable diseases.” Defs.’ Br. 48. But Dr. Harber in fact refused to offer such testimony. He instead admitted that he did not “have personal knowledge of” Defendants training agents to identify such diseases, noting only that “they say they do.” ER188 (emphasis added); see SER927 (similar).
Fifth, Defendants also assert that Dr. Harber testified that “any detainee presenting any symptoms of [a communicable disease] is transferred to a hospital.” Defs.’ Br. 48. But Dr. Harber stated only that Defendants “are recognizing some problems.” ER188. He said nothing to support Defendants’ suggestion that Border Patrol agents have identified every class member displaying symptoms of a communicable disease.
Sixth, Defendants maintain that agents “regularly interact with and observe detainees.” Defs.’ Br. 48. But such interaction and observation is irrelevant given the agents’ lack of medical training. Defendants also overlook the evidence that any such “interaction between officers and detainees” is exceedingly superficial, limited as it is to “visual inspection, officer-initiated communication, and detaineeinitiated communication.” SER927.
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Seventh, Defendants claim that Plaintiffs’ expert Dr. Goldenson deemed the “practice of confiscating medications at intake” to be “acceptable and commonplace in detention facilities.” Defs.’ Br. 49. Plaintiffs, however, do not object to the confiscation of medicine itself, but rather to the lack of any qualified professionals who ensure that class members subsequently receive necessary medications. Consistent with that focus, Dr. Goldenson noted that while the confiscation of medicine is a standard practice in jails, Defendants’ system is woefully inadequate because it does not guarantee detainees consistent access to their medicine, or a timely, professional evaluation of their medication needs. ER325-26. Indeed, as he emphasized, the evidence shows that only “some of the people coming in who are on medications are given the opportunity to continue their medications.” ER326 (emphasis added). The Constitution prohibits such malfeasance. Hoptowit, 682 F.2d at 1252-54.
Eighth, Defendants contend that Plaintiffs’ medication claims rest solely on “hearsay declarations.” Defs.’ Br. 49. But such declarations are admissible at a preliminary injunction hearing, and Defendants do not suggest that the district court could have somehow abused its discretion in considering this evidence. Americans For Prosperity Found. v. Harris, 809 F.3d 536, 540 n.3 (9th Cir. 2015). Regardless, this Court need not simply take the declarants’ word for it: Defendants admit that they have a “practice of confiscating medications,” and that detainees
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cannot access their medication without “the supervision of an officer/agent.” Defs.’ Br. 49. That proves the point—Defendants condition detainees’ access to medication on the say-so of unqualified Border Patrol agents. Such a system is unconstitutional.
B. Ordering Untrained Border Patrol Agents To Comply With TEDS Does Not Address Plaintiffs’ Constitutional Injuries
Defendants also contend that the district court’s order requiring compliance with the National Standards on Transport, Escort, Detention, and Search (“TEDS”) was “tailored to the harm alleged.” Defs.’ Br. 45. But that would be true only if Defendants and the district court were right in their view of the Constitution’s requirements—which they are not. The constitutional injury Plaintiffs suffer results from Defendants’ practice of allowing untrained Border Patrol agents to act as gatekeepers to critical medical care and medication. Ordering those same untrained agents to comply with TEDS is not remotely “tailored” to remedying this harm.
Indeed, the TEDS standards are patently inadequate. At the intake stage, TEDS simply instructs Border Patrol agents to rely on their own observations and suspicions or the self-reporting of detainees. ER732-734, ER744. But TEDS provides no medical training or instruction to agents tasked with screening detainees, and does not imbue agents with the ability to render professionally responsible medical judgments. The district court’s order therefore does nothing to
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remedy the underlying constitutional problem: Defendants continue to rely on medically untrained Border Patrol agents to perform intake screening that should be provided by trained medical professionals.
The same is true with regard to Plaintiffs’ access to medication. TEDS says nothing about the appropriate ministration of class members’ medicine during “general processing” unless the medication was “prescribed in the United States, validated by a medical professional if not U.S.-prescribed, or in the detainee’s possession during general processing in a properly identified container with the specific dosage indicated.” ER744. Although, as Defendants emphasize (Defs.’ Br. 49), TEDS also sets forth the precatory admonition that detainees with non-U.S. medication “should have the medication validated by a medical professional, or should be taken in a timely manner to a medical practitioner to obtain an equivalent U.S. prescription,” even this general statement applies only to detainees “not in general processing.” ER744 (emphases added). Class members with non-U.S. prescribed medication thus remain at the whims of untrained Border Patrol agents to secure the medication they need while they are being processed— which could be for days at a time.
Accordingly, TEDS does not address the injury Plaintiffs have suffered, and the district court committed legal error in concluding these standards alone were
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sufficient. The district court’s order should be modified to require that properly trained medical professionals perform these critical functions. II. THE DISTRICT COURT SHOULD HAVE DIRECTED
DEFENDANTS TO SATISFY THEIR CONSTITUTIONAL OBLIGATION TO PROVIDE BEDS As the district court correctly recognized, detention facilities must provide those “held overnight with beds and mattresses.” ER16 (internal quotation marks omitted). Yet despite the clarity of both this constitutional obligation and Defendants’ contravention of it, the district court required only that Defendants provide Plaintiffs with floor mats. ER20. As Plaintiffs have explained (Opening Br. 48-50), the district court did not and could not offer any logical reason for allowing Defendants to continue denying class members the beds that due process requires. The court therefore abused its discretion. See Hinkson, 585 F.3d at 1262. A. Due Process Requires Defendants To Provide Beds To The
Individuals It Detains Overnight In response, Defendants focus their attention on the district court’s legal conclusion, contending that beds are not constitutionally required. Defs.’ Br. 50-51. But their arguments cannot be reconciled with the precedent on which the district court properly relied. Defendants assert that neither this Court’s decision in Thompson, 885 F.2d 1439, nor the Third Circuit’s decision in Anela, 790 F.2d 1063, is “relevant to Plaintiffs’ argument that Defendants must provide beds to Tucson Sector detainees
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held in most cases for less than forty eight hours.” Defs.’ Br. 51. But both decisions expressly held that beds and mattresses are constitutionally required when individuals are detained. See Thompson, 885 F.2d at 1448 (adhering to precedent holding “that a jail’s failure to provide detainees with a mattress and bed or bunk runs afoul of the commands of the Fourteenth Amendment,” and that the county could be held liable if its “failure to provide [the plaintiff] with a bed” was a county policy); Anela, 790 F.2d at 1069 (affirming that “the ‘unsanitary and humiliating’ practice of forcing detainees to sleep on mattresses on the floor does not pass constitutional muster”). And neither decision provides any support for Defendants’ contention that this obligation evaporates if the detention is for less than two full days, as is true for some (but by no means all) class members. See ER860. In Thompson, this Court did not hold that the plaintiff’s rights were violated only because he was detained for two nights without a bed rather than a single night; instead, it cited with approval decisions holding that the “use of floor mattresses for pretrial detainees [is] unconstitutional without regard to the number of days for which a prisoner is so confined.” 885 F.2d at 1448 (internal quotation marks omitted). In Anela, meanwhile, the plaintiffs were detained for less than 12 hours. 790 F.2d at 1064.7
7 Defendants also incorrectly describe Anela as a case about “overnight confinement in jail cells” (Defs.’ Br. 51); in fact, the plaintiffs in Anela “were
(Footnote continues on next page.)
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Moreover, as Defendants appear to concede, the two key decisions on which both Thompson and Anela relied are equally clear in holding that beds are constitutionally required in these circumstances. Defendants acknowledge that Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir. 1983), held that requiring “detainees to sleep on mattresses on the floor violated detainees’ due process rights.” Defs.’ Br. 51. And while Defendants do not address Lareau at all despite both Plaintiffs’ (Opening Br. 45) and the district court’s (ER16) reliance on it, there the Second Circuit plainly held that forcing detainees to sleep on floor mattresses is unconstitutional for any length of time. Laureau, 651 F.2d at 105.
The purportedly “unique interests and operational needs of Border Patrol stations” (Defs.’ Br. 51) do not distinguish this case from those cited above. As described previously (supra pp. 11-12), Defendants have submitted no evidence of any legitimate governmental objective that could support requiring class members to go without beds. Certainly, none of their evidence could overcome the presumption of unconstitutionality that arises because, as the district court found (ER14) and the Defendants do not dispute (Defts. Br. 50-52), criminal detainees in local jails have access to the beds that Defendants deny civil detainees. Jones, 393 F.3d at 932. That class members “come and go at all hours of the day and night” (Defs.’ Br. 51) might justify some interruption of class members’ sleep, as the
(Footnote continued from previous page.)
detained in holding cells in the police station.” Anela, 790 F.2d at 1064.
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district court concluded. ER18-19. But it has no bearing on Defendants’ current policy of requiring class members to sleep on the floor, and it cannot justify that practice. Cf. Anela, 790 F.2d at 1069 (requiring beds even for detainees brought into holding cell late at night). Likewise, even assuming that the “finite amount of space” in these facilities implicates Defendants’ ability to provide the requisite number of beds (Defs.’ Br. 51), the interest in “housing more [detainees] without creating more [detention] space” is not a cognizable justification for forcing class members to suffer the constitutional deprivation of going without beds. Lareau, 651 F.2d at 104; see id at 110 n.14 (“Unconstitutional conditions cannot be tolerated because constitutional requirements are difficult for the state to fulfill.”). The government cannot compel the individuals it detains to bear the unconstitutional consequences of its supposed lack of resources. Peralta, 774 F.3d at 1083.
B. The District Court Abused Its Discretion In Failing To Require Compliance With This Obligation To Provide Beds
In addition to their attempted rebuke of governing precedent, Defendants defend the district court’s refusal to remedy this constitutional violation as a proper exercise of discretion. But much like the district court itself, Defendants can identify no good reason not to require Defendants to begin the process of fulfilling their constitutional obligations.
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Defendants contend that any such relief would be “overbroad.” Defs.’ Br. 52. But the decision on which Defendants rely for that proposition— McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012)—reveals just the opposite. McCormack held that a preliminary injunction that granted relief to individuals other than the plaintiff was overbroad. Id. at 1019-20. In reaching that conclusion, this Court emphasized that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” and “must be tailored to remedy the specific harm alleged.” Id. at 1019 (internal quotation marks omitted).
Here, an order requiring the government to provide beds in the Tucson Sector stations would not inure to the benefit of anyone other than the members of the certified Plaintiff class, which encompasses all individuals who are or will be confined in these stations. ER559-60. And because the deprivation of beds is an unconstitutional “harm” to which these class members are or will be subjected, requiring the provision of those beds is “necessary to provide complete relief to the plaintiffs.” McCormack, 694 F.3d at 1019 (internal quotation marks omitted). Such an order could by no means be deemed overbroad.
Defendants also assert that the district court properly considered “the resources necessary to implement any remedy” and that “immediate compliance” with any requirement to provide beds is “impossible.” Defs.’ Br. 51-52. But that a
42

preliminary injunction could require the government to expend “resources” or might create “logistical difficulties” does not prevent it from being in the public interest where, as here, such difficulties “merely represent the burdens of complying” with the government’s legal obligations. Rodriguez, 715 F.3d at 1146.
Nor, for that matter, would Defendants’ compliance with their constitutional obligation to provide beds necessarily require the sort of drastic steps Defendants suggest. To the contrary, there are a variety of available means through which they might satisfy this mandate. Defendants might, as they suggest, lease new space. Defs.’ Br. 52. They might install beds in existing facilities. They might better coordinate with other government agencies to ensure expeditious transfer of those held in the Tucson Sector. They might implement some combination of these three options, or use the power of the federal government to take any number of other steps.
The essential problem with the district court’s order is that it did not require Defendants to do anything to ensure class members are no longer required to sleep on the floor. There is no question that the Due Process Clause requires Defendants to provide beds to the individuals it detains for any meaningful length of time, and there is no question that Defendants are not satisfying that mandate. Yet the district court nevertheless permitted Defendants to avoid even beginning the process of fulfilling their constitutional obligations, thus only further delaying the
43

date at which they might achieve compliance. The burden of that delay falls directly on the members of the Plaintiff class, who must endure these unconstitutional deprivations indefinitely. In allowing Plaintiffs to continue to experience these unnecessary harms, the district court abused its discretion. III. THE DISTRICT COURT COMMITTED LEGAL ERROR IN
FAILING TO ORDER THE PROVISION OF SHOWERS Finally, the district court committed legal error in concluding that civil detainees such as Plaintiffs are not constitutionally entitled to have access to showers. See ER24-25. As this Court has affirmed, even for prisoners, “minimum standards of decency require that lockup inmates without hot running water in their cells be accorded showers three times per week.” Toussaint v. McCarthy, 597 F. Supp. 1388, 1399 (N.D. Cal. 1984), aff’d in part, rev’d in part, 801 F.2d 1080 (9th Cir. 1986). Likewise, pretrial detainees in jails generally have access to showers at least once a day. ER454-455. Providing civil detainees such as Plaintiffs even less favorable treatment is therefore presumptively unconstitutional. Jones, 393 F.3d at 932. And Defendants have pointed to no security justification or other legitimate governmental objective for requiring members of the Plaintiff class—who often arrive at the Tucson Sector stations covered in dirt (ER22)—to go without showers altogether. Accordingly, Defendants’ current practice of providing the vast majority of class members it detains with mere “adult body wipes” violates due process.
44

Defendants offer little response to this straightforward argument. They contend that Toussaint is distinguishable because Plaintiffs “are rarely in custody for more than forty-eight hours.” Defs.’ Br. 53-54. But if the prisoners in Toussaint were entitled to showers approximately every other day, then the Plaintiffs, as civil detainees, are presumptively entitled to “more considerate treatment.” Jones, 393 F.3d at 932 (emphasis added). Defendants do not and cannot explain why they may instead subject Plaintiffs to substantially worse treatment. Nor do Defendants even address the evidence regarding the prevailing practices in jails or class members’ special need for showers—evidence Plaintiffs highlighted in their opening brief (at 52-53). Defendants’ silence is telling.
Rather than confront these issues, Defendants emphasize that not all Tucson Sector stations currently have shower facilities. Defs.’ Br. 53. Once again, however, the improper design of these facilities, and the resources it might require to update them, cannot justify Defendants’ failure to provide the individuals it detains with the treatment to which they are constitutionally entitled. See supra pp. 11-12.
Defendants also suggest that the relief the district court ordered was appropriate, even if premised on a legal error, because of Defendants’ purported difficulty in meeting this obligation. Defs.’ Br. 53. But the court’s limited remedy simply enables the continued violation of Plaintiffs’ rights. And as explained
45

(supra p. 21), each of the preliminary injunction factors necessarily weighs in Plaintiffs’ favor when they seek to prevent the government’s ongoing refusal to respect their constitutional rights. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). That is not to say that a court could not take account of Defendants’ supposed inability to “immediately comply” with their obligation to provide showers. Defs.’ Br. 53 (emphasis added). But Plaintiffs ask that this Court require that “Defendants immediately begin to take the actions the Constitution requires them to take.” Opening Br. 58 (emphasis added). This Court should not permit Defendants to indefinitely postpone the date of their adherence to this constitutional requirement.
46

CONCLUSION For the foregoing reasons and those in Plaintiffs’ opening brief, the district court’s order should be reversed to the extent that it grants Plaintiffs only partial preliminary relief. The case should be remanded with instructions directing the district court to issue an injunction that will secure Plaintiffs’ constitutional rights to adequate medical care, bedding, and showers.

Dated: May 25, 2017

Respectfully submitted,

LOUISE C. STOUPE PIETER S. DE GANON MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522
COLETTE REINER MAYER MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 813-5600
LINTON JOAQUIN KAREN C. TUMLIN NORA A. PRECIADO NATIONAL IMMIGRATION LAW CENTER Suite 1600 3435 Wilshire Boulevard Los Angeles, CA 90010 Telephone: (213) 639-3900

s/ James R. Sigel JAMES R. SIGEL ROBERT J. ESPOSITO ELIZABETH G. BALASSONE MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-6948 JSigel@mofo.com
DEANNE E. MAYNARD SOPHIA M. BRILL* BRYAN J. LEITCH LENA HUGHES* MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 887-8740
MARY A. KENNEY MELISSA E. CROW AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW, Suite 200

47

KATHLEEN E. BRODY BRENDA MUÑOZ FURNISH ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, AZ 85014 Telephone: (602) 650-1854
ABIGAIL L. COLELLA MORRISON & FOERSTER LLP 250 West 55th Street New York, NY 10019 Telephone: (212) 468-8000

Washington, DC 20005 Telephone: (202) 507-7512
ELISA DELLA-PIANA LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444
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Counsel for Plaintiffs-Appellants Jane Doe #1, Jane Doe #2, and Norlan Flores

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on May 25, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: May 25, 2017
sf-3769466

s/ James R. Sigel James R. Sigel

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 No. 17-15383 ‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒ IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒ JANE DOE #1; JANE DOE #2; NORLAN FLORES, on behalf of themselves and all
others similarly situated,

Plaintiffs-Appellants-Cross-Appellees,

v.

JOHN F. KELLY, Secretary, United States Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner, U.S. Customs And Border Protection; CARLA L. PROVOST, Acting Chief, United States Border Patrol;
FELIX CHAVEZ, Acting Commander, Arizona Joint Field Command & Acting Chief Patrol Agent – Tucson Sector,

Defendants-Appellees-Cross-Appellants.

‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒ PRELIMINARY INJUNCTION APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA NO. 15-CV-00250-DCB
‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒ DEFENDANTS-APPELLEES-CROSS-APPELLANTS’ REPLY BRIEF
‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒

CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
SARAH B. FABIAN Senior Litigation Counsel

CHRISTINA PARASCANDOLA Trial Attorney Office of Immigration Litigation District Court Section U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3097
Attorneys for Defendants-Appellees-CrossAppellants

TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................. ii
INTRODUCTION ................................................................................................... 1
ARGUMENT ........................................................................................................... 3
I. When evaluating the conditions of confinement in Border Patrol stations, Bell v. Wolfish governs. .................................................................................. 3
II. The district court articulated the Bell v. Wolfish analysis, but applied it only to some conditions of confinement........................................................ 16
III. The district court’s requirement to provide sleeping mats to all detainees in Tucson Sector stations after twelve hours is overly rigid and the alleged constitutional violation could be satisfied by more flexible means.............. 19
CONCLUSION........................................................................................................ 26 CERTIFICATE OF COMPLIANCE STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES
CASES Anela v. City of Wildwood,
790 F.2d 1063 (3d Cir. 1986) ............................................................ 22, 23, 24, 25
Bell v. Wolfish, 441 U.S. 520 (1979) ..................................................................................... passim
Estelle v. Gamble, 429 U.S. 97 (1976) ...............................................................................................12
Hutto v. Finney, 437 U.S. 678 (1978) .............................................................................................14
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ............................................... 6, 8, 11, 12, 13, 14, 15
Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996) ................................................................................14
McCormack v. Heideman, 694 F.3d 1004 (9th Cir. 2012) ..............................................................................19
Pimentel v. Dreyfus, 670 F.3d 1096 (9th Cir. 2012) ..............................................................................15
Poe v. Ullman, 367 U.S. 497 (1961) ...............................................................................................3
Thompson v. City of Los Angeles, 884 F.2d 1439 (9th Cir. 1989) ........................................................... 22, 23, 24, 25
Youngberg v. Romeo, 457 U.S. 305 (1982) ............................................................ 3, 6, 7, 8, 9, 10, 11, 12
i

CALIFORNIA SEXUALLY VIOLENT PREDATOR ACT Cal. Welf. & Inst. Code §§ 6600 ...............................................................................8 Cal. Welf. & Inst. Code §§ 6601(c)-(i)......................................................................8 Cal. Welf. & Inst. Code §§ 6601.3 ............................................................................8
ii

INTRODUCTION Plaintiffs’ opposition to the Government’s appeal is premised on their contention that the framework laid out by the Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979), for evaluating conditions of pretrial detention, does not apply in full to Border Patrol detention. However, Plaintiffs’ argument fails because it completely ignores the bedrock principle that any evaluation of confinement conditions must balance liberty interests against the relevant state interest. Although Plaintiffs concede that Bell establishes the relevant constitutional standard for conditions of confinement at Border Patrol stations, they seem to suggest that a court should not consider the operational justification for those conditions, which is a critical element of the Bell analysis. Because Plaintiffs do not address this important principle, nor do they explain how conditions of confinement in Border Patrol stations can properly be assessed without reference to the Bell framework, their arguments fail. This Court should reverse the district court’s decision because it did not establish a clear legal standard or identify factual findings on the basis of the record before it. Without a clear legal standard or factual findings, the district court’s decision provides no clear articulation of the standard Defendants should apply in assessing confinement conditions, or any clear explanation of how the facts of this case meet the applicable standard.

The district court did not apply the proper legal analysis in Bell, 441 U.S. at 538-39, and thus failed to consider whether each condition or restriction at issue: (1) had a legitimate non-punitive interest; and (2) did not appear excessive in relation to that purpose. Instead, the district court relied on dicta in judicial decisions regarding whether claims of sleep deprivation in confinement could be brought as a procedural matter, to support the proposition that not providing bedding beyond Mylar blankets, by definition, violates a detainees’ constitutional right to sleep. The district court also incorrectly relied on the standard for evaluating confinement conditions of individuals detained—frequently for longterm periods of confinement—under the California Sexually Violent Predators Act (“SVPA”) (“purgatory cannot be worse than hell”), but provided no explanation why that standard for long-term detention should be applied to Border Patrol detention, which is much shorter in duration and serves far different purposes. Because the district court did not apply the correct legal standard, the preliminary injunction order should be set aside.
Moreover, even if the district court applied the proper legal standard, the district court’s remedy of requiring the Tucson Sector to provide sleeping mats to all detainees after twelve hours is overly rigid, and the alleged constitutional requirement could be satisfied by more flexible means. Law enforcement flexibility is a critical component of Bell. Thus, even if the conditions at Border
2

Patrol stations were found to violate the Constitution, any judicial relief should allow the Border Patrol sufficient operational flexibility to determine how to satisfy the relevant constitutional standard. The district court therefore abused its discretion in issuing the preliminary injunction order. Thus, the Court should remand this case, order the district court to apply the correct legal analysis and to make specific findings as to whether the conditions Plaintiffs complained of violated their constitutional rights, and, if so order appropriate relief narrowly tailored to remedy the violation.
ARGUMENT I. When evaluating the conditions of confinement in Border Patrol
stations, the Supreme Court’s analysis set forth in Bell v. Wolfish governs. Whether a civilly confined individual’s constitutional rights have been violated must be determined by balancing his or her liberty interest against the relevant state interest. Youngberg v. Romeo, 457 U.S. 305, 320 (1982) (citing Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting) (opining regarding the need to balance “the liberty of the individual” with “the demands of an organized society”). Under the Supreme Court’s test in Bell, the condition or restriction at issue must: (1) have a legitimate non-punitive interest; and (2) not appear excessive in relation to that purpose. Bell, 441 U.S. at 538-39. Conversely, if the condition or restriction is not reasonably related to a legitimate goal—if it is
3

arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees. Id. at 539. In establishing this test, the Supreme Court rejected a requirement that pretrial detainees be subjected to only those conditions that “inhere in their confinement itself or which are justified by compelling necessities of jail administration,” i.e., the compelling-necessity test, noting the lack of a basis for such a test in the Constitution. Id. at 532.
In its reasoning supporting this two-part analysis, the Supreme Court considered that the state may detain an individual who has not been adjudged guilty of any crime but rather has only a “judicial determination of probable cause” and the state’s interest in ensuring that such an individual appears for trial. Id. at 535-37. It further considered the state’s interest in maintaining security and order at the institution, which includes preventing weapons and illicit drugs from reaching detainees. Id. at 539-40.
Plaintiffs’ position with respect to Bell is contradictory. Plaintiffs concede that Bell “suppl[ies] the standard for determining whether the conditions of confinement in the Tucson Sector stations are unconstitutional because they are ‘punitive.’” Pltffs’ Resp. Br. (filed May 25, 2017) at 3. Later in their brief, however, while conceding again that Bell “undoubtedly has some relevance here,” Plaintiffs suggest that Bell does not govern instances of civil detention. Id. at 6.
4

Plaintiffs’ attempt to muddy the waters with respect to the legal standard is unavailing, however, because Bell plainly applies in this context. At bottom, Plaintiffs want the underlying legal standard under Bell, i.e., whether a condition of confinement is “punitive,” but they want this Court to decline to recognize the deference that the Bell Court afforded to legitimate law enforcement operations. Their argument fails because the basis for their position—a purported distinction between pretrial civil and criminal detention—is immaterial. Plaintiffs provide no good reason to find otherwise.
In fact, detention in a Tucson Sector Border Patrol station serves a similar, although not identical, purpose to pretrial detention. The Border Patrol detains individuals who have recently been apprehended—usually after a Border Patrol agent has probable cause to suspect a violation of United States immigration laws—and who must remain in detention until they can be identified, processed, and either released or delivered to the custody of another agency. Importantly though, Border Patrol custody is distinguishable from pretrial confinement, which can last for weeks or even months in many cases. The primary distinguishing characteristic of Border Patrol detention is brevity, considering that it lasts less than forty-eight hours in ninety percent of cases, and less than seventy-two hours in almost all cases. This distinction does not render the Bell analysis inapplicable to Border Patrol detention; .rather, it is a factor to be considered in applying the
5

Bell analysis. At bottom, Plaintiffs’ argument that the Court should not apply Bell seeks to
have the Court determine whether a condition of confinement is punitive without considering any law enforcement justification for the condition at issue. Plaintiffs couch this as an argument for a standard that requires “more considerate treatment” than inmates in jails and prisons. Pltffs’ Resp. Br. at 7. In articulating their proposed standard, Plaintiffs rely on Youngberg v. Romeo, 457 U.S. 305, 320 (1982), and Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004), two cases in which courts analyzed long-term, involuntary civil commitment of severely mentally disabled individuals and violent sexual predators. Id. However, the Court should decline to adopt Plaintiffs’ proposed standard for two reasons: first, both of these cases ultimately rely on the Bell analysis in evaluating the conditions at issue in each case; and second, there is simply no parallel to be drawn between Border Patrol detention and involuntary civil commitment for severely mentally disabled or dangerous individuals, and Plaintiffs articulate none.
In Youngberg, contrary to Plaintiffs’ suggestion, the Supreme Court did not rule that all civilly confined individuals—regardless of the length or purpose of confinement—are entitled to more considerate treatment than pretrial detainees. Rather, it recognized that persons involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose
6

conditions of confinement are designed to punish. Youngberg, 457 U.S. at 321-22. In that case a severely mentally disabled thirty-three-year-old man with the mental capacity of an infant, whose condition and family circumstances required him to be institutionalized in state custody, claimed that the state’s failure to prevent injuries he suffered, his physical restraints for long periods of time, and the lack of appropriate treatment or rehabilitation programs for his condition, infringed on his liberty interests in safety, freedom of movement, and training. Id. at 310-11, 315.
Relying on Bell, the Supreme Court noted that determining whether an individual’s constitutional rights had been violated required balancing his liberty interests against the relevant state interest. Id. at 321. It then rejected the lower court’s compelling-necessity and substantial-necessity tests, and held that when determining whether a condition of confinement is reasonable (the second step of the Bell test), courts must show deference to the judgment exercised by a qualified professional. Id. at 233 & n. 29 (quoting Bell, 441 U.S. at 539 (“[c]ourts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.”). Notably, the Supreme Court’s reliance on Bell in Youngberg provides all the more reason for this Court to find that considering the Bell analysis is essential when evaluating conditions of confinement for those who are civilly detained.
7

Plaintiffs nonetheless argue that the standard for evaluating conditions of detention at Tucson Sector is found in Jones, 393 F.3d at 931. See ER 13-14. In Jones, this Court refined Youngberg by holding that an individual detained awaiting the conclusion of civil commitment proceedings but not yet committed must be tested by a standard “at least as solicitous” to the rights of the detainee as the standards applied to a civilly committed individual and to an individual accused but not convicted of a crime. Jones, 393 F.3d at 932. The plaintiff in Jones had been transferred to the Sacramento County Jail, near the end of his sentence for a parole violation, to await a hearing on a petition for civil commitment, under the SVPA, Cal. Welf. & Inst. Code §§ 6600 et seq., as a sexually violent predator. Id. at 923. Although the SVPA limited such detentions to forty-five days beyond an individual’s scheduled release, Cal. Welf. & Inst. Code §§ 6601(c)-(i); 6601.3, the plaintiff was incarcerated at the county jail for more than two years while he awaited a decision on the petition, Jones, 393 F.3d. at 923-24. For approximately the first twelve months of that incarceration period the plaintiff was housed with the general criminal population, and for the second twelve months in administrative segregation, where conditions were far more restrictive than those afforded the general prison population, including limits on physical activity, phone time, visiting privileges, and out-of-cell time. Id. at 924. Throughout his two-year civil incarceration while awaiting the outcome of his civil
8

commitment proceedings, the plaintiff suffered numerous strip searches, some conducted outdoors or at gunpoint in the middle of the night and accompanied by intimidating tactics. Id. The plaintiff brought an action claiming that the conditions of his confinement violated his substantive due process rights. Id.
In deciding what standard applied when evaluating the plaintiff’s claims, this Court noted that when detainees have not been convicted of a crime, the more protective Fourteenth Amendment, as opposed to the Eight Amendment, standard applies. Id. at 931 (citing Bell, 441 U.S. 520, and noting that Fourteenth Amendment applied to pretrial detainees) (other citations omitted). The Court further noted that confinement while awaiting civil commitment proceedings implicates the intersection between two distinct Fourteenth Amendment imperatives. Id. First, the Court noted, individuals who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. Id. (citing Youngberg, 457 U.S. at 321-22). Second, the Court noted, “when the state detains an individual on a criminal charge, that person, unlike a criminal convict, ‘may not be punished prior to an adjudication of guilt in accordance with due process of law.’” Id. at 931-932 (quoting and adding emphasis to Bell, 441 U.S. at 535). The Court then noted that civil detainees retain greater liberty protections than individuals “detained under criminal process,” id. at
9

932 (citing Youngberg, 457 U.S. at 321-24), and pre-adjudication detainees retain greater liberty interest than convicted ones, id. (citing Bell, 441 U.S. at 535-36). Thus, the Court concluded that an individual who is detained awaiting civil commitment proceedings is entitled to protections at least as great as those afforded to a civilly committed individual, and at least as great as those afforded to an individual accused but not convicted of a crime. Id. The Court added that, “at a bare minimum,” an individual detained under civil process cannot be subjected to conditions that amount to punishment, citing the two-part Bell test. Id.
Analyzing the specific detention at issue in that case then, the Court reasoned that the civil nature of SVPA confinement provides an important gloss on the meaning of “punitive,” and that when an SVPA detainee is confined in conditions identical or similar to or more restrictive than those in which his criminal counterparts are held, the Court presumes that the detainee is being subjected to punishment. Id. (citation omitted). Moreover, comparing the conditions of the plaintiff’s long-term detention prior to SVPA commitment, with the conditions of SVPA commitment, the Court concluded that pre-commitment detainees cannot be subjected to conditions of confinement substantially worse than they would face upon SVPA commitment, reasoning that “purgatory cannot be worse than hell.” Id. at 933.
10

The important takeaway from these two cases—which Plaintiffs entirely ignore—is that Youngberg and Jones both apply the standards laid out in Bell to analyze specific instances of involuntary long-term civil detention. The type of detention at issue in both those cases differs substantially from short-term Border Patrol detention, serves purposes completely divergent from Border Patrol’s operational concerns. This Court should not do as Plaintiffs urge and ignore the fact that Bell is at the heart of both decisions, and instead should conclude that Bell provides the standard for analyzing the short-term Border Patrol detention at issue in this case.
Moreover, Plaintiffs have provided no basis for their contention that instead of applying the Bell analysis to Border Patrol detention, this Court should selectively choose language from Jones to craft a standard. Plaintiffs in effect urge this Court to adopt a short-cut in its analysis that has no basis in reason. Simply put, there is no parallel to be drawn between the types of custody at issue in Jones and in the case at hand. In Jones, the Court applied Bell to analyze the long-term detention of a potentially dangerous individual under a statutory scheme crafted to protect communities from sexual predators. Here, the Court should similarly require that the district court apply the full two part test in Bell to analyze shortterm detention in a Border Patrol facility.
11

It also is important to note that the district court conflated this Court’s two
holdings in Jones in the preliminary injunction order. ER 13-14. First, the district
court stated that:
the civil nature of [Plaintiffs’] confinement provides an important gloss on the meaning of “punitive” in the context of their confinement. Because they are detained under civil, rather than criminal, process, they are most decidedly entitled to “more considerate treatment” than those criminally detained.
ER 13 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976); Youngberg, 457 U.S. at 321-22).1 Second, noting the other holding of Jones, that civil detainees cannot be
subjected to conditions of confinement substantially worse than they would face
upon commitment (notably, without mentioning the context of the SVPA), the
district court, quoting Jones, reasoned that “purgatory cannot be worse than hell”
and concluded “this must be precisely the case here” relying on a comparison
between conditions of Border Patrol detention and the Santa Cruz county jail. ER
14.
1 The nearly identical passage in Jones states: The civil nature of SVPA confinement provides an important gloss on the meaning of “punitive” in this context. Because he is detained under civil— rather than criminal—process, an SVPA detainee is entitled to “more considerate treatment” than his criminally detained counterparts. Youngberg, 457 U.S. at 321–22.
Jones, 393 F.3d at 932 (emphasis added). 12

Contrary to the district court’s and Plaintiffs’ reading, Jones did not hold that any civilly confined detainee—regardless of the length of time or purpose of his or her detention—is entitled to more considerate treatment than would be accorded any long-term pretrial detainee. ER 13; Pltffs’ Resp. Br. at 7. Rather, Jones was decided in the specific context of an individual confined for a substantial period of time while awaiting the outcome of commitment proceedings under the SVPA. There is no parallel to be drawn between the long-term detention at issue in Jones and the short-term Border Patrol detention at issue here, and the district court provides none. Moreover, no other court in this Circuit has applied Jones’s presumption in any scenario other than confinement under the SVPA.
It simply should not be ignored or glossed over that Border Patrol detainees are civilly detained for a completely different purpose than the SVPA, and under completely different circumstances that do not lend themselves to comparison with each other. Unlike the two-year detention in Jones, Border Patrol detention is brief, in most instances not lasting more than forty-eight hours and, in all but a handful of cases, not lasting more than seventy-two hours. Had the plaintiff in Jones been detained for forty-eight hours or less while he awaited a decision on whether he was to be civilly committed, the outcome of that case likely would have been vastly different. In evaluating claims regarding conditions of confinement, courts must consider duration. See Bell, 441 U.S. at 542 (finding no due process violation
13

in double bunking in cells of a specified size where pretrial detainees were detained for generally less than sixty days, with the caveat that “confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process Clause as to whether those conditions amounted to punishment”) (emphasis added); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996), opinion amended on denial of reh’g, 135 F.3d 1318 (9th Cir. 1998) (noting that when evaluating Eighth Amendment claim whether less egregious condition or combination of conditions or factors would meet the test requires case-by-case, fact-by-fact consideration, including whether the prisoner is likely to be transferred in the near future) (citing Hutto v. Finney, 437 U.S. 678, 686–87 (1978) (“[T]he length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards. A filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and intolerably cruel for weeks or months.”).
The conditions at issue in the two cases are vastly different as well. The plaintiff in Jones was housed for years in a jail with prisoners serving sentences of incarceration for their crimes. By contrast, detainees in Border Patrol custody are never held with prisoners who are currently serving their sentences for criminal convictions, and the population of a hold room is constantly changing as Border
14

Patrol identifies individuals in its custody, processes them, and moves them out of Border Patrol custody. At any given moment, the population at a Border Patrol station may be comprised of men or women, or families traveling with children, all of whom, for safety reasons, are segregated by gender, family status, and known criminal history, and rarely spend the entire time of their detention in the same room. Moreover, unlike SVPA proceedings, which will end in either civil commitment or release, Border Patrol processing results in any one of a number of outcomes, including repatriation, transfer to the custody of another agency, referral for prosecution, or release. Because the purpose, nature, and length of Border Patrol custody is so vastly different from the detention at issue in Jones, comparisons to Jones are inapt.
Having applied the incorrect standard, and provided little rationale for any standard it did apply, the district court abused its discretion, and the preliminary injunction order should be reversed. See Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (noting that a district court abuses its discretion in granting a preliminary injunction when it does not identify the correct legal rule to apply to the relief requested). This Court therefore should remand the preliminary injunction order for the district court to apply the correct legal standard in Bell, 411 U.S. 420, to Plaintiffs’ claims. Specifically, the district court should be required to address the conditions of confinement at Border Patrol stations based upon Border
15

Patrol’s mission and operational needs and whether each condition is excessive in light of those needs, not by imposing standards tailored to facilities that serve functions entirely distinct from Border Patrol’s. II. To the extent the district court articulated the Bell v. Wolfish analysis,
the court erred in applying it only to some conditions of confinement. Plaintiffs contend that Defendants are incorrect in their argument that the District court failed to apply the Bell analysis in its order. And it is true that the district court did articulate the Bell balancing test, and did note in some limited instances the legitimate non-punitive interests in maintaining security and preserving internal order at Border Patrol stations. ER 12. The court also noted that Border Patrol stations are designed for processing detainees for next steps elsewhere, ER 14, and that, relatedly, Border Patrol stations are twenty-four hour operations and that a significant number of detainees are apprehended during evening and nighttime hours, ER 15, thereby giving voice, at least in part, to Border Patrol’s operational needs. Further, the court did acknowledge that for all but a handful of detainees—476 out of approximately 17,000, or 2.8 percent, during the period June 10 through September 28, 2015—Border Patrol detention lasts fewer than seventy-two hours, although the court did not acknowledge evidence that these numbers likely overstated the amount of time individuals actually spend in Border Patrol stations. ER 16.
16

Importantly though, while the court noted the Bell analysis and gave voice to Border Patrol’s operational interests, it did not evaluate the conditions Plaintiffs complained of under Bell, i.e., whether each condition did not appear excessive in relation to the legitimate government purpose. Compounding the problem was that the district court did not articulate discrete findings of fact and the application of a legal standard to the relevant factual findings. See ER 17-20 (accepting, without explanation, Plaintiffs’ expert’s opinion that Border Patrol detention conditions must be evaluated under prison standards and rejecting, without explanation, Defendants’ expert’s opinion that Border patrol detention was short term and should be evaluated as would conditions of confinement during the booking process); ER 20-23 (reciting the parties’ allegations regarding sanitation and concluding that Defendants “were making ongoing efforts to rectify personal hygiene and sanitation problems which in large part appear to be noncompliance issues” and ordering monitoring); ER 25-28 (reciting the parties allegations regarding the lack of showers and ordering monitoring and the provision of some means or materials for washing); ER 21-23 (same, with regard to food, without ordering any remedy); ER 27-30 (same, with regard to medical care, ordering measures to ensure that a medical screening form compliant with relevant standards is in use at all stations).
17

The district court did apply Bell in part to two aspects of Plaintiffs’ sleep claim. The district court concluded that serving the first meal of the day at 4:00 a.m. and waking detainees for that meal did not serve a legitimate, non-punitive interest, ER 19, and therefore, implicit in the district court’s decision, was a determination that this condition did not meet the first part of Bell. The district court also considered that Tucson Sector hold rooms are illuminated on a twentyfour basis for security reasons, ER 18-19, thus, satisfying the first step in Bell, of serving legitimate non-punitive interest and, at least implicitly, the district court concluded that the constant illumination was not excessive in relation to that operational interest—the second step in Bell.
But the district court also did not provide the requisite factual finding, and ignored Bell with regard to the remaining aspects of Plaintiffs’ sleep claim. It considered a surveillance video still image submitted by Plaintiffs showing men sleeping on a the floor of a hold room and next door to an empty hold room piled with mattresses and inferred form the snapshot in time that the detainees were denied sleep. ER 17; see ER 410-12, 433-34. But the district court did not articulate the extent of the factual findings it was making based on the photograph. For example, the court’s decision does not articulate whether the court considered that the photograph was a single snapshot in time of a single hold room at a single facility that did not show what was happening elsewhere in the facility or in the
18

Tucson Sector. Nor did the court comply with the first step in Bell by considering the legitimate, non-punitive purpose for Border Patrol in keeping an empty hold room with sleeping mats in its facility because the Tucson Sector, for security reasons, would need to maintain an available hold room with sleeping mats in case the Border Patrol apprehended any families with children that day. It also did not apply the second step of considering whether detaining the men in a hold room without sleeping mats was excessive in light of this interest.
In sum, Plaintiffs are incorrect in their contention that the district court did anything more than acknowledge the holding of Bell and identify some of the Tucson Sector Border Patrol’s operational needs. Because the district court did not apply the Bell analysis fully and completely to Plaintiffs’ claims, the preliminary injunction order should be reversed and remanded. III. The district court’s requirement to provide sleeping mats to all
detainees in Tucson Sector stations after twelve hours is overly rigid, and the alleged constitutional violation could be satisfied by more flexible means. Defendants do not contend that there is no situation in which they could be required to provide some means by which detainees may sleep. Rather, they challenge the district court’s rigid requirement that Border Patrol provide a sleeping mat to each detainee after twelve hours. See ER 32. The requirement is more burdensome than necessary, and the district court’s goal of remedying the
19

alleged constitutional violation may be satisfied by more flexible means. Thus, the remedy constitutes an abuse of discretion. McCormack v. Heideman, 694 F.3d 1004, 1019 (9th Cir. 2012).
Plaintiffs do not deny the consequences the twelve-hour sleeping mat requirement has had on the Tucson Sector’s ability to carry out its mission of apprehending individuals evading United States immigration laws. Defs’ Br. at 25. Because the mission of the Tucson Sector Border Patrol includes apprehending and facilitating emergency medical care for individuals traveling through a large swath of Arizona desert, its stations are in remote areas, and it uses the Tucson Coordinating Center as a transportation hub and coordination point for detainees who must be transferred to another detention facility or agency. Compliance with the twelve-hour sleeping mat requirement significantly reduces the capacity of Tucson Sector stations, and at times when Tucson Sector needs to be able to utilize the full extent of the capacity available to it at Tucson Sector stations, this reduction has a significant effect on the operations of the Tucson Coordinating Center. Id. (citing SUPP ER 993-94). The capacity loss has, at times, resulted in lost opportunities to prosecute individuals who have been charged with crimes, including smuggling.2 Id.; SUPP ER 993-94; see SUPP ER 996 (attesting to the
2 Plaintiffs’ argument that the current Tucson Sector capacity shortage and 20

November 20, 2016 inability to prosecute a twelve-person drug smuggling case
involving individuals detained at the Ajo station for lack of timely presentment and
the November 21, 2016 failure to prosecute nineteen individuals and November 23,
2016 failure to prosecute five individuals eligible for prosecution). Plaintiffs’
arguments that the impact of compliance with the twelve-hour sleeping mat
requirement on the Tucson Sector is “speculative,” Pltffs’ Resp. Br. at 22-23,
ignores this plain evidence of actual effects from this requirement, and this
evidence gives good reason to believe that such effects are likely to occur again in
the future if the population level at Tucson Sector Border Patrol stations
approaches full capacity.3
logistical problems resulting from immediate compliance with the twelve-hour sleeping mat requirement could have been averted by the government’s acquisition or construction of more buildings ignores the preliminary nature of the ordered relief, and the realities of the Government acquisition process. See Pltffs’ Resp. Br. at 24. The district court reasonably did not require Defendants to immediately “build or obtain adequate capacity to hold all it seeks to detain.” Id. Moreover, such an invasive requirement is entirely outside the scope of what reasonably should be required to comply with an order for preliminary injunctive relief.
3 Plaintiffs’ argument that they “do not seek to prevent Defendants from inspecting, apprehending, excluding, or removing aliens,” Pltffs’ Resp. Br. at 26, hints at a misunderstanding of the Border Patrol’s mission. While it is correct that the Border Patrol apprehends individuals, and that the lions’ share of the individuals are aliens (the Border Patrol usually does not know an individual’s immigration status until it processes the individual, and it does encounter U.S citizens, including those engaged in smuggling), the Border Patrol is not the primary entity within DHS that detains individuals prior to removal. But, Border
21

Plaintiffs now argue, with tenuous factual support, that a twelve-hour threshold is “logical” because detainees “do not arrive at the Tucson Sector stations having only recently woken up” and because the Assistant Chief Patrol Agent George Allen testified that “oftentimes by the time we get someone to the station, we’re approaching on 12 hours.” Pltffs’ Resp. Br. at 19 (quoting ER 102). However this argument ignores the fact that the point at which a sleeping mat can or should be required under the Constitution is not tied to “logic,” but to a balancing of the operational needs of the facility against any constitutional rights of the detainees. Thus, as Defendants previously acknowledged, while there may well be cases where providing a sleeping mat at the twelve hour custody mark is appropriate when those interests are balanced, there will be many other instances where providing a sleeping mat at that mark substantially interferes with Border Patrol’s processing of individuals and its ability to move them quickly out of Border Patrol custody. It is this failing of the rigid twelve-hour requirement that renders it more burdensome than necessary to remedy the alleged harm.
More importantly, the district court’s conclusion that class members are denied a constitutional right to sleep unless they are provided mattresses or beds is
Patrol does rely on its short-term detention facilities to determine who, for instance, should be further detained for removal or other proceedings, or could be immediately removed.
22

based on a misreading, ER 12, that Plaintiffs continue to advocate (see Pltffs. Br. at 20-21) of Thompson v. City of Los Angeles, 884 F.2d 1439, 1448 (9th Cir. 1989), and Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986), that not providing detainees bedding “runs afoul” of the commands of the Fourteenth Amendment, when neither decision contains a holding to that effect. See Thompson, 884 F.3d at 1448 (holding that where a federal district court had found twenty years earlier at the jail where the plaintiff was detained that the jail was not providing each inmate with bed because of frequent overcrowded conditions, and county failed to refute the plaintiff’s claim that he was not provided with bed or mattress or to provide evidence of corrective measures taken to comply with the twenty-year-old court order, it would be presumed that county maintained custom of unconstitutional jail conditions in form of bed shortages and could be held liable for arrestee’s injuries resulting from constitutional deprivation in failing to provide him bed or mattress in a civil rights action). In Anela, 790 F.2d. at 1069, the Third Circuit held that, where a city failed to follow a New Jersey Supreme Court rule designed to protect arrestees’ rights, by requiring the police officer in charge to issue a summons and release the arrestee in lieu of continued detention, and the city instead confined plaintiffs to jail cells overnight as a matter of practice, the city could be liable for any constitutional claims arising out of conditions of detention. Id. at 1066-69. Anela settled whether the detention emanated from the
23

city, rather than the discretion of an independent municipal judge. Id. at 1065-66. The Third Circuit noted that noncompliance with the New Jersey state law had been standard practice at the city and could be ascribed to municipal decisionmakers, and, thus, it amounted to a policy exposing the city to liability for claims that conditions of confinement, including being deprived of food, drinking water and beds while detained overnight, violated arrestees’ Fourteenth Amendment due process rights. Id. at 1069. Anela does not impose a rule that lack of beds deprives a detainee of constitutional rights. In sum, the statements in Thompson and Anela that Plaintiffs and the district court rely upon are dicta.
Plaintiffs still have not cited any judicial decisions holding that not providing beds or mattresses to detainees who are held for a relatively short time amounts to a due process violation. This is not surprising, considering that in Bell the Supreme Court established a rule for evaluating conditions and restrictions of confinement on a case-by-case basis and was reluctant to issue one-size-fits-all rules governing even common aspects of detention. See Bell, 441 U.S. at 547-48 (declining to adopt a one-man, one-cell rule). Thus, Plaintiffs’ argument that Defendants cannot suffer harm because the remedy the court ordered “ends an unlawful” practice, Pltffs’ Resp. Br. at 21, is based on an incorrect reading of Thompson and Anela to impose a rule that not providing beds or mattresses to Border Patrol detainees amounts to a due process violation. Most of Plaintiffs’
24

remaining argument rests on this misreading. See Pltffs’ Resp. Br. at 23 (describing Defendants’ argument that the twelve-hour mattress requirement has impeded the Tucson Sector’s ability to carry out its mission by resulting in reduced capacity and missed prosecutions as “a direct attack on [Defendants’] constitutional obligations”); id. at 24 (arguing that the district court may not refuse to order relief in response to a constitutional violation just because of a lack of space); id. at 26 (describing providing sleeping mats to all Tucson Sector detainees after twelve hours in detention as a constitutional requirement). The proper course of action would have been for the district court to apply the two-part analysis in Bell, for determining when a confinement condition amounts to a constitutional violation. This Court should remand the preliminary injunction for the district court to apply the correct legal standard in Bell, 411 U.S. 420, in lieu of its misreading of Thompson and Anela to impose a rule that not providing beds in any and all civil detention context deprives a detainee of the right to sleep. Further, the Court should order that if, upon remand and after applying Bell, or some other appropriate standard, the district court concludes, that Defendants have denied Plaintiffs of their right to sleep, the remedy that is fashioned must be narrowly tailored as to not impede the Tucson Sector’s operations.
25

CONCLUSION This Court should remand the preliminary injunction for the district court to

apply the correct analysis in Bell, 411 U.S. 420. Alternatively, and if the Court

declines to grant any relief with regard to the legal standard being applied, the

Court should require the district court to modify the requirement to provide

sleeping mats after twelve hours by replacing it with a more flexible requirement

that takes into account the Tucson Sector’s operational needs.

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director

SARAH B. FABIAN Senior Litigation Counsel

/s/ Christina Parascandola CHRISTINA PARASCANDOLA Trial Attorney Office of Immigration Litigation District Court Section U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3097

Dated June 8, 2017

Attorneys for Respondent 26

CERTIFICATE OF SERVICE I certify that on June 8, 2017, I electronically filed the foregoing Defendants-Appellants’ Opening Brief with the Clerk of Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I also certify that Plaintiffs-Appellees’ counsel are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Christina Parascandola CHRISTINA PARASCANDOLA

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 17-15383

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Date 6/8/2017
(Rev.12/1/16)

 
 Nos. 17-15381 & 17-15383 ‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒ IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒ JANE DOE #1; JANE DOE #2; NORLAN FLORES, on behalf of themselves and all
others similarly situated,

Plaintiffs-Appellants-Cross-Appellees,

v.

JOHN F. KELLY, Secretary, United States Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner, U.S. Customs And Border Protection; CARLA L. PROVOST, Acting Chief, United States Border Patrol;
FELIX CHAVEZ, Acting Commander, Arizona Joint Field Command & Acting Chief Patrol Agent – Tucson Sector,

Defendants-Appellees-Cross-Appellants.

‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒ PRELIMINARY INJUNCTION APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA NO. 15-CV-00250-DCB
‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒ DEFENDANTS-APPELLEES-CROSS-APPELLANTS’ BRIEF
‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒‒

CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
SARAH B. FABIAN Senior Litigation Counsel

CHRISTINA PARASCANDOLA Trial Attorney Office of Immigration Litigation District Court Section U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3097
Attorneys for Defendants-Appellees-CrossAppellants

TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
STATEMENT OF JURISDICTION..........................................................................7
STATEMENT OF THE ISSUES...............................................................................7
STATEMENT OF THE CASE..................................................................................8
SUMMARY OF THE ARGUMENT ......................................................................27
ARGUMENT ...........................................................................................................29
I. Standard of review.........................................................................................29
II. The district court erred by failing to consider the unique interests and operational challenges faced by Tucson Sector Border Patrol when determining what conditions satisfy the Constitution under Bell v. Wolfish................................................................................................31
III. The Due Process Clause does not impose a rigid mandate that the Border Patrol must distribute sleeping mats to each and every detainee after twelve hours, regardless of circumstances. ...............................................................41
IV. The Court should deny Plaintiffs’ appeal because the district court did not abuse its discretion in fashioning the remaining forms of injunctive relief in its preliminary injunction order. ....................................................................45
A. The district court did not abuse its discretion in requiring the Tucson Sector to use a medical screening form that is consistent with the TEDS Standards. ....................................................................................................... 45
B. The district court did not abuse its discretion to require the Tucson Sector to provide detainees with sleeping mats and not necessarily beds for sleeping. ...........................................................................................50
i

C. The district court did not abuse its discretion in not requiring Tucson Sector Border Patrol to provide showers to detainees after twelve hours. ...............52
CONCLUSION ........................................................................................................54 CERTIFICATE OF COMPLIANCE STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE
ii

TABLE OF AUTHORITIES CASES
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ..............................................................................29
Am. Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) ..............................................................................30
Anela v. City of Wildwood, 790 F.2d 1063 (3d Cir. 1986) ...............................................................................51
Bell v. Wolfish, 441 U.S. 520 (1979) ................................................................................. 5, passim
Califano v. Yamasaki, 442 U.S. 682 (1979) .............................................................................................30
Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810 (9th Cir. 2003) ................................................................................29
Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119 (9th Cir. 2005) ..............................................................................31
Estelle v. Gamble, 429 U.S. 97 (1976) ...............................................................................................21
Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012) .............................................................................................34
Gibson v. Cty. of Washoe, 290 F.3d 1175 (9th Cir. 2002) ..............................................................................47
Hoptowit v. Ray, 682 F.3d 1237 (9th Cir. 1982) ....................................................................... 30, 41
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ......................................................................... 21, 34
iii

Landon v. Plasencia, 459 U.S. 21 (1982) ...............................................................................................38
Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) ...................................................................................47
Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999) ..............................................................................33
McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) ................................................................ 30, passim
Nat’l Wildlife Federation v. Nat’l Marine Fisheries Svc., 524 F.3d 917 (9th Cir. 2008) ................................................................................30
Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th Cir. 2002) ............................................................................48
Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012) ................................................................................21
Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008) ....................................................................... 31, 33
Pimentel v. Dreyfus, 670 F.3d 1096 (9th Cir. 2012) ....................................................................... 29, 41
Puente Arizona v. Arpaio, 821 F.3d 1098 (9th Cir. 2016) ..............................................................................29
Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974) ................................................................................46
Sharp v. Weston, 233 F.3d 1166 (9th Cir. 2000) ..............................................................................21
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) .................................................................................................30
iv

Thompson v. City of Los Angeles, 884 F.2d 1439 (9th Cir. 1989) ..............................................................................50
Thornburgh v. Abbott, 490 U.S. 401 (1989) .............................................................................................33
Toissant v. McCarthy, 801 F.2d 1080 (9th Cir. 1986) ..............................................................................46
Toussaint v. McCarthy, 597 F.Supp. 1388 (N.D. Cal. 1984)......................................................................53
Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir. 1983) .................................................................................51
United States v. Lovasco, 431 U.S. 783 (1977) .............................................................................................34
United States v. Peninsula Commc’ns, Inc., 287 F.3d 832 (9th Cir. 2002) ................................................................................29
United States v. Russell, 411 U.S. 423 (1973) .............................................................................................34
United States v. Salerno, 481 U.S. 739 (1987) .............................................................................................31
Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir. 2002) ..............................................................................33
Wildwest Inst. v. Bull, 472 F.3d 587 (9th Cir. 2006) ................................................................................30
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) .............................................................................. 29, 30, 41, 53
v

Youngberg v. Romeo, 457 U.S. 307, (1982) ............................................................................................21 FEDERAL STATUES
8 U.S.C. § 1252(f)(1) ...............................................................................................43 28 U.S.C. § 1291(a)(1)...............................................................................................7 42 U.S.C. § 15601, et seq...........................................................................................3
vi

INTRODUCTION The U.S. Border Patrol is charged with, among other duties, securing the land border between the United States and Mexico. This land border spans several thousand miles and requires the Border Patrol to operate in a rugged, unpredictable, and often isolated environment, unlike that in which any other law enforcement agency operates. The Border Patrol’s primary mission is detecting and preventing the entry of terrorists, weapons of mass destruction, and unauthorized aliens, as well as interdicting drug smugglers and other criminals entering the United States between the ports of entry.1 Given the nature of Border Patrol’s mission, Border Patrol agents frequently encounter and detain individuals who are attempting to evade immigration laws, including those who are also engaged in other types of criminal activities, such as smuggling drugs or human trafficking. Border Patrol agents in Tucson Sector patrol 262 miles of the United StatesMexico border in southern Arizona. In fiscal year 2016, the Tucson Sector apprehended 64,891 individuals, the second highest of any Border Patrol sector.2
1 This case therefore does not concern individuals arriving in the United States at ports of entry. 2 CBP Total Monthly Apprehensions by Sector and Area (FY 2000 - FY 2016) (available at https://www.cbp.gov/sites/default/files/assets/documents/2016Oct/BP%20Total%20Monthly%20Apps%20by%20Sector%20and%20Area%2C% 20FY2000-FY2016.pdf) (viewed April 20, 2017) (“Total Monthly Apprehensions”).

The number of individuals it apprehends each month varies widely. Between 2009 and 2016, total apprehensions each month varied by nearly a factor of ten, from a high of 31,432 in March 2009, to a low of 4,071 in July 2015.
When a Border Patrol agent in the Tucson Sector apprehends an individual, the agent brings him or her to one of eight stations (Ajo, Brian A. Terry, Casa Grande, Douglas, Nogales, Sonoita, Tucson, or Willcox). At that station, the Border Patrol ascertains the individual’s identity and immigration and criminal history, and he or she is fully processed to determine the next steps for that individual. The individual may be repatriated, transferred into the custody of another agency, referred for prosecution in accordance with the law or, in rare circumstances, released. It is rarely possible to complete an individual’s processing in a single, uninterrupted sitting because of the volume of individuals to be processed and the need to ensure that they receive all appropriate attention. For example, all individuals undergo intake, biometric capture, and processing but, depending on a particular individual’s needs and responses, the individual may also be provided with medical care, meet with consular officials, undergo a more extensive interview, or meet with pre-trial services. Individuals awaiting the completion of processing and transfer out of Border Patrol custody wait in hold rooms, which like Border Patrol itself, operate twenty-four hours a day, seven days a week since individuals can be encountered and apprehended at any time.
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That said, a significant number of Tucson Sector Border Patrol apprehensions occur at night.
Once detained, individuals may be transferred from one hold room to another as they progress through the stages of processing or as operational demands require. Such operational demands include the Prison Rape Elimination Act, Pub. L. No. 108-79, 117 Stat. 972 (Sept. 4, 2003) (codified at 42 U.S.C. §§ 15601, et seq.); the National Standards on Transport, Escort, Detention, and Search (“TEDS”), available at: https://www.cbp.gov/sites/default/files/documents/cbpteds-policy-20151005_1.pdf (viewed Apr. 25, 2017); detainee and occupational safety requirements; and facility cleanliness needs. As a result, the population of a Border Patrol station tends to be in constant flux.
The total amount of time an apprehended individual spends in Tucson Sector Border Patrol custody is relatively short, usually between twelve and seventy-two hours, and rarely exceeds forty-eight hours. During the period May 1 through October 31, 2016, approximately half of the 32,144 individuals taken into Border Patrol Tucson Sector custody were released or transferred to the custody of another agency within twenty-four hours, eight percent were in custody for forty-eight hours or more, and two percent were in custody for seventy-two hours or more. See Excerpts of Record (“ER”) 71-74; Supplemental Excerpts of Record (“SUPP ER”) 899-900, 1000. Moreover, since time in custody is measured starting at
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apprehension, which can be in a remote location in the desert, the time a detainee spends in hold rooms actually is much less.
Plaintiffs are a class of individuals temporarily held at any one of the eight Tucson Sector stations. Plaintiffs claim that the conditions of their brief detention violate the Due Process Clause of the Fifth Amendment, and they sought a preliminary injunction relating to the claimed constitutional violations. The district court noted that Border Patrol detention is civil in nature and not a criminal sentence, but did not properly consider the nature of Border Patrol’s operations, and determined that standards applicable to state prisons or local jails should provide a baseline for evaluating whether conditions in Border Patrol stations were constitutional. Based on this assumption, the district court concluded that, with respect to some of Plaintiffs’ detention condition allegations, they are likely to succeed on the merits of their due process claim. The court thus and granted Plaintiffs’ preliminary injunction request. It ordered Tucson Sector Border Patrol to immediately: (1) provide sleeping mats and mylar blankets for detainees held longer than twelve hours; (2) provide detainees held longer than twelve hours a means to wash or clean themselves; and (3) implement the universal use of the Tucson Sector’s Medical Screening Form at all stations and ensure that the questions on the form reflect the TEDS requirements for the delivery of medical
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care to detainees.3
As an initial matter, the district court erred because it did not consider
Plaintiffs’ constitutional claims in the light of the law enforcement purposes that
Border Patrol stations serve and the stations’ unique operational needs, as required
under Bell v. Wolfish, 441 U.S. 520, 536-37 (1979). The district court committed
legal error because it relied exclusively on various judicial rulings regarding
conditions in certain prisons, jails, and facilities that serve the purpose of longer-
term civil commitment, and did not identify how or why those standards should be
applicable in the unique, and very different, setting of short-term Border Patrol
detention. Defendants ask this Court to clarify the legal standard that should apply
to individuals briefly detained in Border Patrol custody, and to remand the case to
3 The district court also ordered Tucson Sector Border Patrol to monitor, through the use of its e3DM system, its compliance with several provisions of TEDS. E3DM is the Border Patrol’s system for recording certain data regarding each individual it apprehends, including biographical information, criminal and immigration history, transfers in and out of custody, other Border Patrol interactions with the individual, and information related to detention conditions and events, such as the dates and times meals were offered to the individual while in custody. ER 70-73; SUPP ER 896-99.
As discussed herein, Defendants dispute that this (or any) remedy is appropriate, because the district court did not apply the correct analysis in evaluating whether conditions of Plaintiffs’ detention in Border Patrol custody violated their Fifth Amendment due process rights. However, the parties do not otherwise raise any specific challenges to this provision of the district court’s order.
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the district court for further consideration of Plaintiffs’ preliminary injunction request in accordance with the proper legal standard.
Second, even if this Court finds that the district court did not err in finding a potential constitutional violation with regard to Plaintiffs’ claims regarding sleep deprivation, the Court should find that by ordering Defendants to provide sleeping mats for detainees after twelve hours, the district court abused its discretion because it did not tailor the remedy to the harm alleged. Specifically, the district court did not properly consider the impact that this remedy would have, as ordered, on Tucson Sector’s operations. The remedy has, at times, adversely affected Tucson Sector’s ability to carry out its mission, where a less rigid remedy that would have a lesser effect on Border Patrol operations would have sufficed. Thus, even if the Court does not vacate the preliminary injunction order and remand the case to provide the district court the opportunity to analyze Plaintiffs’ constitutional claims under Bell v. Wolfish, the Court should at a minimum direct the district court to refashion the twelve-hour sleeping mat requirement.
Finally, even if the Court declines the relief Defendants request, the Court should nonetheless deny Plaintiffs’ appeal, because Plaintiffs have not shown that the remainder of the relief the district court ordered does not provide them complete relief from the harm they alleged. Thus, the Court should affirm the remaining remedies as within the district court’s discretion to order.
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STATEMENT OF JURISDICTION The district court has jurisdiction 28 U.S.C. § 1291(a)(1), which confers jurisdiction over appeals from interlocutory orders of district courts granting or refusing to dissolve or modify injunctions.
STATEMENT OF THE ISSUES I. Whether this Court should vacate the District Court’s preliminary injunction
because the district court did not properly apply Bell, 441 U.S. 520, when it ignored the unique and legitimate government interests and operational difficulties involved in effectively operating a Border Patrol station in addressing Plaintiffs’ challenge to their detention conditions, and thus did not apply the correct legal standard in granting Plaintiffs’ request for a preliminary injunction II. Whether the Due Process Clause imposes a rigid constitutional mandate that Tucson Sector Border Patrol must distribute sleeping mats to each and every detainee after twelve hours, regardless of the adverse impact of such a requirement on Tucson Sector’s ability to carry out its basic mission. III. Assuming, arguendo, that Plaintiffs are likely to succeed on the merits of their constitutional claims, thereby meriting injunctive relief, whether, considering the unique mission and operational needs of Border Patrol stations and the relative brevity of Border Patrol detention, the district court
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properly exercised its discretion to require the Tucson Sector to: A. Implement the universal use of the TEDS standards for delivery of
medical care to detainees, in lieu of the medical screening regime proposed by Plaintiffs; B. Provide detainees with sleeping mats after a specified period of time, rather than requiring that all detainees be provided access to beds; C. Provide detainees the ability to clean themselves after twelve hours in custody, rather than requiring all detainees to be given showers.
STATEMENT OF THE CASE After apprehending an individual in the field, a Border Patrol agent conducts a basic field interview and visual inspection of each individual. During this interview and inspection, Border Patrol seeks to determine whether the individual requires immediate medical attention, in which case the agent calls 911 and an ambulance is dispatched to transport the individual to the closest hospital emergency room or urgent care clinic. ER 98-99, 115-16, 369-84, 744; SUPP ER 909-10, 921, 923. Individuals with less urgent medical issues may sometimes be transported to the closest Border Patrol station for identification and then, if necessary, to a medical facility for treatment. ER 98-99, 115-16, 118-24 (describing the circumstances under which the Tucson Sector brings an individual to a treatment facilities and the process of completing a Treatment Authorization
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Request). All Border Patrol agents are trained as First Responders and approximately half have more advanced training in first aid. ER 117. Many are certified as Emergency Medical Technicians (“EMTs”). ER 117, 119; SUPP ER 924. If the agent is unsure of whether an individual is in need of emergency medical care, the agent may call an EMT for backup, or may send the individual to the hospital so that the medical staff there can determine if treatment is necessary. ER 119, 153-54; SUPP ER 910, 929. It has been a long standing policy and practice for Border Patrol agents to provide immediate medical assistance and transfer to a medical facility to any individual believed to be injured, regardless of immigration status or participation in criminal activity. SUPP ER 923-24, 934-35.
Individuals apprehended in the field are searched and brought to the nearest Border Patrol station for identification. ER 99-100, 104. At the arrival point, known as the sally port, individuals are searched again for contraband, and their property and outer clothing layers are properly secured. ER 104, 172; SUPP ER 904. Juveniles, however, are permitted to keep all of their clothing. SUPP ER 904, 950. Because Border Patrol stations are secured—agents do not carry weapons while inside the detention area—the search is very important for detainee and Border Patrol employees’ safety. ER 105. All detainees are provided a mylar
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blanket for warmth.4 ER 122-23. All medicines are confiscated. TEDS Standards ¶ 4.10. This is standard
practice in detention facilities and is done to prevent introduction of drugs. ER SUPP 954; ER 325-26. If the Tucson Sector confiscates a detainee’s medication, it will ask the detainee follow-up questions to ascertain the purpose of the medication and when it was last taken and, if the detainee has immediate need for the medication, or if the Border Patrol agent is unsure whether there is an urgent need for the medication, the Tucson Sector will transport the detainee to the hospital for an evaluation by a doctor and the provision of medication. ER 121-22. From intake and throughout the detainee’s stay, Border Patrol agents ask about and visually inspect for any signs of illness and injury. ER SUPP 923; TEDS Standards ¶¶ 4.3, 4.10. Border Patrol agents have ongoing interactions with the detainees throughout their detention, which gives agents the opportunity to observe detainee health conditions and respond to signs and symptoms of illness and any acute medical conditions that may develop or present thereafter. ER 186-88; ER SUPP 923-24.
4 The Tucson Sector at one time provided cloth blankets but no vendor was able to keep up with the pace of washing and restocking them, in order to provide each detainee with a clean blanket. ER 123; SUPP ER 909. Mylar blankets are more hygienic and are recycled. ER 124; SUPP ER 909.
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After intake in the sally port, and the initial identification process (including gathering initial biographic information), detainees are transferred to the interior of the station for further processing. ER 104-05; SUPP ER 904. Detainees are placed into hold rooms based on a number of factors including age, gender, whether they are traveling as a family unit, if they are suspected of having committed a serious crime, or if they have expressed a fear of persecution. ER 107-08; SUPP ER 90405. Tucson Sector stations make available items for mothers and children, such as diapers, bottles, baby formula, and toddler foods, either by providing access to these items or hanging posters showing items that are available. ER 106; SUPP ER 966-68, 980-88. Families with children are provided sleeping mats. ER 124-25. Before the district court’s preliminary injunction, sleeping mats were not provided to all detainees because of space limitations and the interruptions that sleeping mat distribution to a large population of detainees poses, where detainees are constantly coming and going at all hours of the day and night. ER 124-29.
For security reasons, lights are kept on in the hold rooms throughout the day and night. ER 126. This allows the Tucson Sector staff to keep an eye on detainees, and is for everyone’s protection. ER 126. Turning off the lights during certain hours would foreclose the Tucson Sector’s ability to process detainees twenty-four hours a day, leading to longer detention periods and possible placement of violent criminals with other detainees, jeopardizing their safety. ER 126.
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Temperatures in Tucson Sector hold rooms are set at seventy-three to seventy-four degrees and, at most stations, are controlled by computer and cannot be adjusted by station staff. ER 114-15; SUPP ER 949, 974-77. Actual temperature readings are taken at least once during each shift. ER 115. If the range of the temperature falls outside of an acceptable range a maintenance contractor is called. ER 115. If another room has a more suitable temperature, detainees are transferred to that room. ER 115.
Identification and processing requires several steps, including conducting records checks and submitting prints to several indices, to determine whether the individual has had prior encounters with law enforcement. ER 107; ER SUPP 90405. The next steps may include preparing an arrest report, immigration processing, service of immigration forms, consular notifications, and communication with family members. ER SUPP 904-05. Officials from the Consulates of Guatemala and Mexico visit the Tucson Coordination Center twice each day, conduct interviews, and communicate with their countries’ nationals. ER 80, 110; SUPP ER 907.
After processing, the Border Patrol works with other agencies to determine the next course of action for each detainee, including repatriation, transfer to Immigration and Customs Enforcement (“ICE”) Enforcement and Removal Operations, the United States Marshals Service, or, if the detainee is an
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unaccompanied minor, transfer to the appropriate housing under the Office of Refugee Resettlement. ER 78-79, 110-13; SUPP ER 905-06. Detainees found to be subject to an outstanding warrant for violations of state or local law are referred to the appropriate law enforcement agency. ER 110-13; SUPP ER 905-06. For example, if a detainee had an outstanding arrest warrant in Wichita, Kansas, the Tucson Sector would contact authorities in Wichita to verify the warrant. Wichita authorities would place a hold on the detainee and request that the Tucson Sector detain him until they can arrange for transportation of the detainee to Wichita. ER 111. Detainees who are kept in custody for criminal prosecution or other reasons generally are transferred to the Tucson Coordination Center, which serves as the transportation hub for the eight Tucson Sector stations. ER 99-100; SUPP ER 90506. Once processing is completed, detainees are transferred to other facilities and agencies as soon as possible; but when a receiving agency is unable to accept the individual, for reasons such as lack of space, the individual will remain in Border Patrol custody. ER 100-03; SUPP ER 906. The Tucson Sector looks for alternative placement options if it appears that an individual’s time in Border Patrol custody will be prolonged. ER 113. For instance, Border Patrol may utilize ICE facilities to allow detainees to sleep and/or take a shower. ER 113. The Tucson Sector also has certain access to the Santa Cruz County Jail, which is under contract to ICE and has beds and showers. ER 113-14.
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The Tucson Sector strives to transfer each and every detainee from its custody as soon as possible. ER 102. Border Patrol calculates time in custody starting from the time of initial apprehension until transfer to another agency, and does not limit it to time spent at a Border Patrol station. ER 72-73. Thus, Border Patrol’s data regarding detention length may include periods of time in which offsite medical treatment was provided, including inpatient treatment that lasts several days, time in which a detainee was transferred out to a facility to have access to beds and showers, or the time it took for a detainee to appear for a court hearing. ER 74, 100-01; SUPP ER 899-901. Accordingly, in many instances detainees reported to be in custody for more than forty-eight hours may actually have not been physically at a Border Patrol station for a significant portion of that time. ER 74, 103; SUPP ER 899-901. Many unavoidable but common events, such as providing meals, responding to medical needs, consular communications, telephone calls to family members and counsel, and criminal investigations, extend processing times, which also may extend an individual’s time detention. ER 73-74, 107-10, 177; SUPP ER 904, 907. Another factor that may extend the time in detention for some detainees is the repatriation agreement between the Mexican and United States governments limiting repatriation of certain individuals to daylight hours, which affects Mexican nationals apprehended in the late afternoon. ER 102-03, 111-12. In recent years, the Tucson Sector has encountered an
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increasing number of nationals from countries other than Mexico and from nonSpanish-speaking countries, including Brazil, Haiti, India, and countries in the Middle East, which adds time to detention while the Border Patrol locates interpreters. ER 75-76, 79-80, 108-09.
On October 5, 2015, CBP issued the TEDS standards. Under these standards Border Patrol stations must make every effort to promptly transfer, transport, process, release, or repatriate detainees as appropriate, according to each operational office’s policies and procedures, and as operationally feasible, and in any event, should not hold detainees longer than seventy-two hours. TEDS ¶¶ 1.8, 4.1. Under TEDS, agents must conduct screening that includes questions designed to ascertain, document, and obtain more information about health conditions, including pregnancy, and injury, illness, and physical and mental health concerns, communicate any concerns to a supervisor, and document them. TEDS ¶¶ 4.2, 4.3. TEDS also requires that Border Patrol must provide all juveniles bedding, and make reasonable efforts to provide soap, showers, and clean towels to detainees approaching seventy-two hours in detention. TEDS ¶¶ 4.11, 4.12.
During the period May 1 through October 31, 2016, half (49.92 percent) of individuals taken into Border Patrol Tucson Sector custody were released or transferred to the custody of another agency within twenty-four hours, 8.08 percent were in custody for forty-eight hours or more, and 2.13 percent were in custody for
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seventy-two hours or more.5 See ER 71-74; SUPP ER 899-900, 1000. Plaintiffs filed their complaint in this case on June 8, 2015, and on January
11, 2016, the district court certified a class. On June 27, 2016 the district court amended the class definition to include “all individuals who are now or in the future will be detained at a CBP facility within the Border Patrol’s Tucson Sector.” ECF No. 117, 173. On August 17, 2016, Plaintiffs filed a motion seeking a preliminary injunction, which claimed that Border Patrol detention exceeding twelve hours was inherently punitive and unconstitutional. ER 402.
Plaintiffs argued that the combination of alleged overcrowding and cold room temperatures, removal of outer layers of clothing upon intake, and concrete flooring and benches, continuous illumination and noise in hold rooms deprived them of sleep. ER 410-14. In support of their allegation of sleep deprivation Plaintiffs presented a snapshot of surveillance video footage of detainees sleeping in a Tucson Coordination Center hold room. ER 410-12, 433-34.
Plaintiffs also argued that they are denied adequate medical care and screening because screening is not conducted by medical personnel. ER 418-20 (citing ER 504-06). Plaintiffs submitted a declaration by a medical doctor opining
5 As noted, supra, at 14, these reported times overstate the actual time spent in hold rooms.
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that the Tucson Sector should adopt the National Commission on Correctional Health Care (“NCCHC”) standards that are in place at correctional facilities. ER 504-05. Plaintiffs did not submit any evidence of harm to any detainee from lack of screening, nor did they provide studies showing increased risk of harm based on the Tucson Sector’s screening processes in place at that time.
Plaintiffs further claimed that they were denied a “safe and sanitary environment” because, inter alia, “they are routinely and systematically denied access to showers and hot running water.” ER 415-16. Plaintiffs relied on a number of declarations, apparently by former detainees, attesting to conditions in Tucson Sector stations, and on the testimony of their expert witness Dr. Robert Powitz. ER 476-500.
Defendants opposed Plaintiffs’ preliminary injunction motion. ECF 133 at 6. Defendants noted that Plaintiffs’ twelve-hour standard was arbitrary, unrelated to any constitutional standard, and did not account for Border Patrol’s mission or operational needs. Id. at 6-9. Defendants noted that Congress has defined shortterm detention as lasting seventy-two hours or less, ECF 133 at 10 (citing Trade Facilitation and Trade Enforcement Act, Pub. L. No. 114-125, tit. VIII, § 411(m), 130 Stat. 122, 208 (Feb. 24, 2016)), and that the vast majority of apprehended individuals spend much less time than that in Tucson Sector hold rooms. ECF 133 at 6-9. Defendants also noted that Plaintiffs’ factual allegations regarding
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detention, and their experts’ opinions, which relied on those allegations, were
based on unreliable, biased, and suspect declarations (which were composed and
typed in English by someone else) from individuals who did not speak or read
English. These declarants were never cross-examined as to their declarations’
contents. The declarations described conditions that were not detrimental to public
health and were compliant with commonly accepted practices, or were taken out of
context.6
6 Plaintiffs repeat a number of these allegations in their brief to the Court. See Brief for Plaintiffs-Appellants-Cross-Appellees (“Pls’ Br.”). For example, Plaintiffs assert “temperatures in hold rooms can reach as low as 58.8° Fahrenheit.” Id. at 8 (citing ER 495 (citing observation based on Douglas station temperature log). Plaintiffs omit that this temperature drop occurred on September 28, 2015, and was caused by a cooling system malfunction and that detainees were provided jackets and sweaters while the problem was being fixed. SUPP ER 90809. Plaintiffs also reference several alleged failures to provide medical care, but proffered no follow-up declarations regarding the effects of the alleged failures to provide medical attention. See Pls’ Br. at 17 (declarants asserting that they were denied medication for ovarian cysts and a heart condition, ER 513-14, 616-17); id. at 18 (citing ER 507, 630, declarant asserting that Border Patrol agent told her that medicine was not available for her child’s ear infection); id. (citing ER 634, declarant asserting that she asked for medical attention after complaining of heavy vaginal bleeding and was given tampons and not examined until five days later when in ICE custody). Finally, Plaintiffs seek to supplement the record with one electronic mail exchange between Tucson Sector agents regarding a detainee’s medical issue, for which the detainee had been promptly transferred to University of Arizona Medical Center. Pls’ Br. 17 (citing ER 815). Plaintiffs call attention to the statement by one employee that the detainee had not presented a “fake heart attack” or hurt hand to avoid prosecution. ER 154. Plaintiffs cross-examined Chief Allen about the message at the district court’s hearing on the preliminary injunction. ER 154-59. Chief Allen acknowledged that the messages were
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Defendants’ opposition described the Tucson Sector’s responsibilities related to processing apprehended individuals, and determining whether to release, repatriate or transfer each individual to the custody of another agency. Defendants noted that Tucson Sector facilities operate around the clock, over 262 linear miles of the United States-Mexico border and apprehend individuals at all times, but largely during evening hours. ECF 133 at 1-9; SUPP ER 917. Defendants contended that the conditions experienced by detainees at Tucson Sector Border Patrol stations were necessary in light of the realities of Border Patrol operations, and that as a result Plaintiffs were not likely to succeed on their claims and no preliminary injunction should be issued.
On March 10, 2016, Plaintiffs filed a reply in support of their preliminary injunction request, arguing that Defendants’ interests were entirely fiscal and that cost avoidance was not a legitimate government interest. ECF 145. Following briefing, on November 14-15, 2016, the district court held a two-day hearing. ER 65-348. Plaintiffs presented testimony from: Joseph Gaston, an ediscovery analyst
exchanged among Tucson Sector employees internally and that the context of one of the responses to the original message about the medical condition was that the original message contained more information about the condition than was necessary to share. ER 155-59. At no point, however, do Plaintiffs assert that the Tucson Sector denied medical care to a detainee who genuinely suffered a heart attack or hurt hand.
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with the firm representing Plaintiffs; Joe Goldenson, M.D.; and Eldon Vail, an expert on administration of correctional facilities. ER 251-347. Defendants presented testimony from: George Allen, Assistant Chief Patrol Agent for the Tucson Sector; Justin Bristow, Acting Chief, Strategic Planning and Analysis, Border Patrol; Richard Bryce, retired Undersheriff of Ventura County Sheriff’s Department, California; Amy Butler, acting strategic policy advisor for CBP; and Philip Harber, M.D., a physician and Professor of Public Health at the Mel and Enid Zuckerman College of Public Health, University of Arizona. ER 69-225.
On November 18, 2016 the district court granted Plaintiffs’ motion. ER 532. The court stated that the constitutional standard to be applied came from Bell. ER 11-13. It then noted that Plaintiffs are detained under civil, rather than criminal, process, and without further analysis, reasoned that Plaintiffs are entitled to “more considerate treatment” than those who are criminally detained. In support, the court cited judicial opinions involving prisoners and individuals who had been civilly committed, either as several mentally disabled individuals unable to care for themselves, sexually violent predators, and enemy combatants, for long periods of time. See ER 13-14 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that noncompliance with physician advice to permit prisoner rest and disciplining of prisoner after he complained of pain constituted deliberate indifference and violated prisoner’s Eighth Amendment right to be free from cruel and unusual
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punishment); Youngberg v. Romeo, 457 U.S. 307, 321–22, (1982) (holding that severely mentally disabled individual civilly committed to state institution had a constitutionally protected liberty interests in safe confinement conditions and freedom from unreasonable bodily restraints). The district court reasoned that decisions defining the constitutional rights of these criminal prisoners in vastly different facilities establish “a floor for the constitutional rights of the Plaintiffs.” ER 13 (citing Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir. 2012) (noting that enemy combatant detained at Guantanamo Bay may have been entitled to the constitutional protections provided convicted prisoners)). The district court then presumed that Plaintiffs are being punished if they are detained in conditions identical to, similar to, or more restrictive than those under which the criminally convicted are held, ER 13-14 (citing Sharp v. Weston, 233 F.3d 1166, 1172-73 (9th Cir. 2000)), based on the reasoning that, “purgatory cannot be worse than hell,” ER 14 (quoting Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004) (internal quotations omitted)). The district court also considered that detainees in the Santa Cruz County Jail are provided a bed, blankets, clean clothing, showers, toothbrush, toothpaste, warm meals, and an opportunity for uninterrupted sleep. ER 14.
The district court also acknowledged the reliance of Plaintiffs’ expert on the American Correctional Association CORE Jail Standards (June 2010) (“CORE Jail Standards”), “United States Department of Justice National Institute of Corrections
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Standards,”7 and United Nations Body of Principles for the Protection of all Persons Under any Form of Detention or Prison. ER 17-18. It also cited the correctional industry crowding standards requiring thirty-five square feet of space for each occupant when detention exceeds ten hours, ER 17-18; see CORE Jail § 1–CORE–1A–07 (2010). The district court noted that the Border Patrol established holding room capacity limits based on the assumption that detainees were sitting up, see ER 160, and stated that “[d]etainees need to lie down to sleep because they are detained at Border Patrol stations in excess of 12 hours.” ER 18.
The district court the rejected the opinion of Bryce, Defendants’ expert, that Border Patrol stations resembled short-term holding cells used in the booking process at jails, ER 18, 203-04; SUPP ER 943, reasoning that while the booking process “takes hours,” Border Patrol processing “takes days (48 hours),” ER 18. The court also ignored the fact that Congress has defined short-term detention in the context of Border Patrol custody as detention for up to seventy-two hours. See Trade Facilitation and Trade Enforcement Act, Pub. L. No. 114-125, tit. VIII, § 411(m), 130 Stat. 122, 208 (Feb. 24, 2016). Pointing to the twenty-four-hour
7 The United States Department of Justice National Institute of Corrections Standards and Inspection Programs Resource and Implementation Guide (Apr. 2007) (“DOJ-NIC Guidance”), available at http://static.nicic.gov/Library/022180. pdf (viewed Apr. 25, 2017), does not contain standards but rather guidance for jurisdictions to develop their own standards.
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illumination of hold rooms (although simultaneously affirming a legitimate government interest in such illumination), and the dependence of the efficacy of mylar blankets on comfortable room temperatures, the district court concluded that Defendants were violating Plaintiffs’ right to sleep. ER 19-20. As a remedy, it ordered Defendants to provide clean bedding that includes a mat and mylar blanket, for all detainees held more than twelve hours. ER 16.
With regard to Plaintiffs’ medical claim, the district court considered the testimony by Plaintiffs’ expert Joseph Goldenson, M.D. that there was no evidence of a formalized screening process at Tucson Sector stations, and that the Tucson Sector’s e3DM data reflected 527 incidents of medical treatment out of a population of 17,000 detainees, during the period June 10 through September 28, 2015. ER 28-30. The district court considered Goldenson’s suggestion that a detainee screening method contain two components: (1) immediate medical triage to determine the existence of issues that would preclude acceptance to a Border Patrol station; and (2) a more thorough medical and mental health screening. ER 28. The second stage would include a face-to-face interview using a structured questionnaire and, where possible, a review of the detainee’s medical record. ER 28. The district court noted that the questionnaire being used at the time omitted questions listed in the TEDS standards about physical and mental health concerns and prescription medications. ER 29-30; SUPP ER 999. The district court also
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noted that the form did not ask whether the detainee is pregnant or nursing. ER 30. The district court ordered Defendants to implement the universal use of a medical screening form that complies with the TEDS standards and concluded that without this compliance Plaintiffs were likely to prevail on their claim that their right to intake screening. ER 30.
With regard to Plaintiffs’ sanitation claim, the district court concluded that Defendants failed to recognize the need to wash oneself during detention but that courts nevertheless were reluctant to find constitutional violations based on temporary deprivation of personal hygiene and grooming items. ER 24. The district court noted that when materials are provided for the detainee to clean oneself, a constitutional violation is averted. ER 24-25. The district court noted that two, and possibly three, of the eight Tucson Sector stations have showers and found that transfer of a detainee after seventy-two hours to a place with showers does not solve the problem. ER 21. As a remedy, the district court ordered Defendants to provide detainees a means to clean themselves after twelve hours.8 ER 25.
8 The district court also ordered Defendants to monitor certain conditions, such as hold room temperature, for compliance with the TEDS standards and to reschedule the morning meal, which was provided at 4:00a.m. ER 23, 26. Neither party appeals these forms of preliminary relief, except to the extent that Defendants challenge the underlying finding that any preliminary injunctive relief is warranted, considering that the district court did not apply the correct legal standard for evaluating Plaintiffs’ claims of constitutional violations.
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On December 2, 2016, Defendants asked the district court to reconsider the twelve-hour sleeping mat requirement. ECF 252. Defendants noted that immediate compliance with this requirement reduced hold room capacities to a significant degree (by half in some stations), and that this greatly diminished the Tucson Coordinating Center’s capacity as the transportation hub and coordination point for detainees requiring further detention or transfer to another agency. Id. at 5-9 (citing SUPP ER 993-94. The loss of capacity at Tucson Coordination Center prevented the transfer of detainees from remote locations to the courthouse for timely presentment, resulting in the declination of criminal prosecutions, and thus thwarting a strong and legitimate government purpose for Border Patrol operations. Id. at 7 (citing SUPP ER 993-94). To alleviate this unanticipated consequence of the preliminary injunction order, Defendants asked the district court to amend the order to require sleeping mats after twenty-four (rather than twelve) hours, considering that most detainees are released before then. Id. at 9-15. Plaintiffs did not contest Defendants’ statements regarding the consequences of the twelve-hour sleeping mat requirement. ECF 254.
On January 3, 2017, the district court denied reconsideration, finding that Defendants had not presented newly-discovered facts. ER 1-4. The district court noted that it ordered the twelve-hour sleeping mat requirement because it would necessitate each detainee taking up more space and that this would alleviate the
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crowded conditions it observed in Border Patrol station hold rooms. ER 2. The district court found unpersuasive Defendants’ argument that hold room capacity had been reduced, citing its observation of empty hold rooms adjacent full hold rooms, without identifying the source of its observations. ER 3. The district court also clarified that the requirement that Defendants provide detainees held longer than twelve hours a means to clean oneself did not necessitate showers. ER 3.9
Plaintiffs appealed. ER 44-50. Defendants cross-appealed. ER 39-43. SUMMARY OF THE ARGUMENT
The Court should vacate the preliminary injunction because the district court, in its evaluation of Plaintiffs’ claims that their detention conditions violated their Fifth Amendment due process rights, failed to meaningfully consider the unique and legitimate government interests and operational challenges involved in administering a Border Patrol station, and whether there existed a reasonable relationship between the conditions complained of and the legitimate government interest, as required under Bell v. Wolfish. The district court’s evaluation of Plaintiffs’ detention conditions under standards applicable to the management of jails and prisons, in lieu of performing the analysis required under Bell, constituted
9 The district court also clarified that for purposes of compliance with its preliminary injunction, time in custody begins when the individual arrives at the station, not when he or she is apprehended in the field. ER 3-4. Defendants do not challenge this clarification.
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legal error. Consequently, this Court should vacate the preliminary injunction order, and should remand the case to the district court for further consideration of Plaintiffs’ preliminary injunction request in accordance with the proper legal standard.
Regardless of whether it finds that the correct legal standard was not applied by the district court, the Court should, at a minimum, remand to the district court for the purpose fashioning a remedy tailored to Plaintiffs’ allegation of harm based on lack of sleeping facilities in hold rooms. Due Process simply does not impose a rigid mandate that the Border Patrol must distribute sleeping mats to each and every detainee after twelve hours, regardless of the legitimate government interests that must be accommodated during that time frame. The twelve-hour sleeping mat requirement has, at times, undermined the ability of the Tucson Sector to perform its mission, resulting in missed prosecutions and delayed repatriations. A more flexible requirement that is tied to the operational purpose of Border Patrol detention could provide Plaintiffs relief from the harm they allege, but also allow Tucson Sector to perform its critical operations.
Finally, assuming, arguendo, that the Court agrees with the district court that Plaintiffs are likely to succeed on the merits of their constitutional claims, thereby meriting injunctive relief, this Court should affirm the remaining forms of injunctive relief that the district court ordered. These remedies are tailored to the
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harms Plaintiffs complain of and therefore are well within the district court’s discretion to order. They include the requirements to: implement the universal use of the TEDS standards for delivery of medical care to detainees, in lieu of the medical screening regime proposed by Plaintiffs; provide detainees with sleeping mats after a specified period of time, so that detainees may sleep with a modicum of comfort, but not necessarily beds; and provide detainees the ability to clean themselves, though not necessarily with showers. To modify each of these forms of relief as Plaintiffs are requesting would be more burdensome to the Tucson Sector than is necessary to provide Plaintiffs complete relief. The Court therefore should deny their requests.
ARGUMENT I. Standard of review
A plaintiff seeking a preliminary injunction must establish: (1) likely success on the merits; (2) likely irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the plaintiff’s favor; and (4) that an injunction is in the public interest. Pimentel v. Dreyfus, 670 F.3d 1096, 1105–06 (9th Cir. 2012) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Under this Court’s “sliding scale” approach, “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
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(9th Cir. 2011) (citing Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)).
A preliminary injunction should only be set aside if the district court “abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Puente Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th Cir. 2016) (citing United States v. Peninsula Commc’ns, Inc., 287 F.3d 832, 839 (9th Cir. 2002)). Legal conclusions are reviewed de novo, applying a twopart test: first, determining whether the district court identified the correct legal rule to apply to the requested relief and second, determining whether the court’s application of that rule was illogical, implausible, or without support from inferences that may be drawn from facts in the record. Pimentel, 670 F.3d at 1105. Stated differently, “‘[a]s long as the district court got the law right, it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.’” Am. Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Wildwest Inst. v. Bull, 472 F.3d 587, 590 (9th Cir. 2006)).
The district court has broad discretion to fashion remedies once constitutional violations are found. Hoptowit v. Ray, 682 F.3d 1237, 1245 (9th Cir. 1982). This discretion is not unchecked, however, and the Court may reverse if the judge has abused his or her discretion in fashioning a remedy. Id. at 1245-46
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(citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16 (1971)); see also Nat’l Wildlife Federation v. Nat’l Marine Fisheries Svc., 524 F.3d 917, 936-37 (9th Cir. 2008) (affirming as reasonable district court’s remedy that federal agency collaborate with States an Tribes to achieve stated goals)). Injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs. McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir. 2012) (citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Injunctive relief is an extraordinary remedy and must be tailored to the harm alleged. Id. (citing Winter, 555 U.S. at 24)).
The Court reviews a district court’s denial of a motion to modify or dissolve a preliminary injunction for an abuse of discretion, and reviews any underlying legal issues de novo. Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1126, n.7 (9th Cir. 2005). II. The district court erred by failing to consider the unique interests and
operational challenges faced by Tucson Sector Border Patrol when determining what conditions satisfy the Constitution under Bell v. Wolfish. Plaintiffs do not challenge the Border Patrol’s authority to apprehend individuals or to detain them while it completes a set of processes that are vital to the national security and integrity of the Nation’s borders—confirming an individual’s identity, tracking any potential criminal or immigration history, and
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determining the appropriate next steps for an individual, whether it is repatriation,
release, or transfer of custody to another law enforcement agency. For purposes of
this appeal, the critical question is whether detention conditions at Tucson Sector
Border Patrol stations amount to “punishment” in violation of the Fifth
Amendment’s guarantee of due process. United States v. Salerno, 481 U.S. 739,
746–47 (1987); Bell, 441 U.S. at 535. This standard differs significantly from the
standard relevant to convicted prisoners, who may be punished as long as it does
not violate the Eighth Amendment’s bar against cruel and unusual punishment.
Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008) (citing Bell, 411
U.S. at 535, n.16).
Not every disability imposed during civil detention amounts to
“punishment” in the constitutional sense. Bell, 411 U.S. at 535. Indeed, any
detention will impose burdens and limitations on freedom that would not exist if
the individual were not being held. Id. As the Supreme Court noted in Bell,
[t]raditionally, [civil detention] has meant confinement in a facility which, no matter how modern or how antiquated, results in restricting the movement of a detainee in a manner in which he would not be restricted if he simply were free to walk the streets pending trial. Whether it be called a jail, a prison, or a custodial center, the purpose of the facility is to detain. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee’s understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into “punishment.”
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Bell, 441 U.S. at 535–37. The mere desire to be free from discomfort thus does not rise to the level of an infringement of fundamental liberty interests. Id. at 534-35 (citations omitted).
Unless imposed with the intent to punish, a condition of detention is generally constitutional if it serves a legitimate government objective. Id. at 539. The Bell court explained that there is contrast between those conditions imposed to promote a legitimate government objective and those that are “arbitrary and purposeless,” from which “a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Id. “Absent evidence of punitive intent, it may be possible to infer a given restriction’s punitive status from the nature of the restriction.” Pierce, 526 F.3d at 1205 (quoting Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002)). If a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Bell, 441 U.S. at 539. Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Id. Thus, in order to be permissible, restrictions must: (1)
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have a legitimate, non-punitive purpose; and (2) not appear excessive in relation to that purpose. Bell, 441 U.S. at 538–39.
A reasonable relationship between the governmental interest and challenged condition or restriction does not require an exact fit. Valdez, 302 F.3d at 1046 (citing Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999)). Nor does it require the least restrictive alternative. Id. (citing Thornburgh v. Abbott, 490 U.S. 401, 410-12 (1989)). “Otherwise, every administrative judgment would be subject to the possibility that that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand.” Id. (quoting Thornburgh, 490 U.S. at 410-11 (internal quotation makes omitted).
In the civil detention context, legitimate, non-punitive government interests include maintaining jail security and effective management of the detention facility. See Bell, 441 U.S. at 540; Jones, 393 F.3d at 932. These are “essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Bell, 441 U.S. at 546. “For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach inmates.” Bell, 441 U.S. at 540.
The Supreme Court cautioned courts against enmeshing themselves in the minutiae of facility operations in the name of the Constitution. “Courts must be
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mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” 441 U.S. at 539 (citing United States v. Lovasco, 431 U.S. 783, 790 (1977)); United States v. Russell, 411 U.S. 423, 435 (1973)). It is well-settled that in evaluating whether a condition is punitive, courts must be deferential. “The difficulties of operating a detention center must not be underestimated by the courts.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318, 326 (2012). “[T]the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution . . . The wide range of ‘judgment calls’ that meet constitutional and statutory requirements are confided to officials outside the Judicial Branch of Government.” Bell, 441 U.S. at 562. Since problems that arise in the day-to-day operation of corrections facilities are not susceptible to easy solutions, prison administrators should be accorded wide-ranging deference in adoption and execution of policies and practices that, in their judgment, are needed to preserve order and discipline and maintain institutional security. Bell, 411 U.S. at 547-48 (citations omitted). Accordingly, in Bell, the Supreme Court did not issue universal bright line rules for when a condition of civil detention is unconstitutional. See id. at 543 (“We disagree . . . that there is some sort of ‘one man, one cell’ principle lurking in the Due Process Clause of the Fifth
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Amendment.”). Notably, the Supreme Court recognized that length of detention is an important point to consider when evaluating the constitutionality of detention conditions. See id. at 543 (“Our conclusion in this regard is further buttressed by the detainees’ length of stay . . .”).
Unlike detention in jail or prison, Border Patrol detention is only for shortterm processing and almost always ends in forty-eight hours or less. ER 71-74, 103; SUPP ER 1000. By its very nature, it ends as soon as the individual’s processing can be completed and he or she can be either released or transferred into the custody of another agency. By contrast, detention in jail can last for months and prison a lifetime, and the lengths of detention are often predetermined.10 Moreover, at many jails and prisons, the processing and
10 Black’s Law Dictionary defines “prison” as A building or complex where people are kept in long-term confinement as punishment for a crime, or in short-term detention while waiting to go to court as criminal defendants; specif., a state or federal facility of confinement for convicted criminals, esp. felons. — Also termed penitentiary; penal institution; adult correctional institution. PRISON, Black’s Law Dictionary (10th ed. 2014). It defines “jail” as A prison; esp., a local government’s detention center where persons awaiting trial or those convicted of misdemeanors are confined . . . Also termed holding cell; lockup; jailhouse; house of detention; community correctional center.”
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detention functions are located in the same building or closely connected set of buildings. Tucson Sector Border Patrol stations, in contrast, serve as short-term holding points for individuals who are apprehended in remote locations many miles from other facilities and allow the Tucson Sector to process individuals near the point of their apprehension before they are transferred elsewhere. This distinguishes Tucson Sector stations from jails and prisons, which need not be located near where their residents committed their crimes or were arrested.
Managing a Border Patrol station also poses unique operational challenges that do not exist for jails or prisons. The characteristics and size of the population at a Border Patrol station can vary dramatically from hour to hour, day to day, month to month, and year to year, depending on conditions at the border, individuals apprehended and even events in other countries. Between 2009 and 2016, total apprehensions each month in the Tucson Sector varied by nearly a factor of ten: The low was 4,071 in July 2015, and the high was 31,432 in March 2009.11 In contrast to jails and prisons, which have some ability to control and manage their incoming and outgoing populations, Border Patrol is likely to receive little warning of the sizes or characteristics of the populations that may come into
JAIL, Black’s Law Dictionary (10th ed. 2014). 11 See, supra, note 2.
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its custody in a given time period. See ER 78 (testimony of Justin Bristow that the number of unaccompanied children skyrocketed since entry of the Flores settlement agreement); ER 79-80 (testimony that proportion of those apprehended who are Mexican nationals dropped from ninety percent to half, adding to the time required to obtain travel documents from various countries); ER 100 (testimony of Chief Allen to the rising number of Mexican nationals seeking asylum); ER 148 (testifying that number of criminals and families that the Tucson Sector interdicted has increased and the number of political asylum claims has increased dramatically); ER 171 (testifying that the Tucson Sector encounters all kinds of individuals, including aggravated felons, drug smugglers, human traffickers, and migrants, and individuals from various non-Spanish speaking countries including India and Pakistan). Moreover, because most of the individuals it apprehends are not United States citizens or lawful permanent residents, Border Patrol usually has no way of knowing until processing the individual’s identity, previous criminal history, whether imminent prosecution is appropriate, or if the individual is civilly removable. Thus, Border Patrol’s ability to differentiate, prior to detaining the individual for processing at a station, between those who may pose an imminent security threat and those who simply are unlawfully entering the United States is limited, if it exists at all.
The Border Patrol’s need to administer its stations efficiently also is tied to 37

its broad authority over the border itself, which has no parallel in the criminal justice system. Indeed, Border Patrol’s ability to establish conditions for short-term processing that meet its operational needs is closely connected to fundamental principles of national sovereignty. See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.”). The core point of the Supreme Court’s decision in Bell was to underscore that conditions of detention that serve legitimate governmental objectives are generally constitutional. 441 U.S. at 539. Indeed, the Bell Court eschewed bright-line rules and fixed analysis, instead focusing on the justification for a particular condition. It would be impossible to follow Bell’s direction without tailoring the analysis of these justifications in the context of the conditions in which the Border Patrol operates.
The district court erred by not evaluating Plaintiffs’ constitutional claims under Bell, 441 U.S. at 538. The district court failed to take any meaningful account of the unique nature of detention at Border Patrol facilities, and their differences in purpose, operation, and legitimate government aims from jails and prisons. ER 17-18. It did not consider the Tucson Sector’s unique law enforcement purpose and operational challenges. Any Bell analysis regarding Border Patrol custody must take into account that the vast majority of the individuals who are
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detained in Border Patrol stations are detained because of their own choice to enter into the United States unlawfully, often in remote areas and under cover of night. It must take into account that processing individuals at the border takes longer than the booking process in pre-trial detention, considering that the Border Patrol encounters a population comprised almost entirely of non-citizens, who are much less likely than citizens to be known to federal, state, or local government and law enforcement agencies. It must consider that the Border Patrol detains only for the purpose of ensuring that processing is completed and the individual is released or transferred somewhere else, as required under the Immigration and Nationality Act. In this way, the Border Patrol stations, unlike jails, prisons, and other types of civil commitment institutions, function as waystations rather than destinations. The Border Patrol in fact has a practical interest in releasing or transferring detainees as soon as possible after intake, and instituting measures relating to the conditions of a detainee’s custody that have the effect of prolonging this detention are not in the government’s interest, any more than they are in the interest of the detainees. Nonetheless, despite these many unique and important factors that are inextricably related to custody at a Border Patrol station and thus to the governmental interests at stake, any discussion of these facets of Border Patrol operations and their relation to conditions of detention at Tucson Sector stations was absent from the
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district court’s decision.12
While ignoring the unique operational concerns of Border Patrol stations, the
district court then erroneously applied standards designed for correctional
institutions, where prisoners are sentenced to a period of confinement, usually
lasting much longer than forty-eight hours. ER 17-18. The court provided no
justification for doing so, other than a single unexplained reference to Plaintiffs’
expert witness that detention lasting more than ten hours is not short-term. ER 18.
The court’s failure to apply the correct legal rule is a legal error warranting
dissolution of the preliminary injunction. Pimentel, 670 F.3d at 1105. This Court
should therefore articulate the correct standard consistent with Bell, by which the
district court must evaluate Plaintiffs’ constitutional claims, and remand this case
to the district court for consideration of Plaintiffs’ preliminary injunction request
consistent with the proper standard. III. The Due Process Clause does not impose a rigid mandate that the
Border Patrol must distribute sleeping mats to each and every detainee after twelve hours, regardless of circumstances. District courts have broad discretion to fashion remedies once constitutional
12 For all of these reasons, the district court’s comparison of Border Patrol stations to the Santa Cruz County Jail, where inmates are provided beds, blankets, clean clothing, showers, toothbrushes and toothpaste, warm meals, and an opportunity for uninterrupted sleep, was also erroneous. ER 14. This comparison entirely ignores Border Patrol stations’ purpose and the short time that detainees spend there, compared to a jail.
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violations are found. Ray, 682 F.3d at 1245. However, injunctive relief should be no more burdensome than necessary to provide complete relief to the plaintiffs, McCormack, 694 F.3d 1019, and must be tailored to the harm alleged. Id. (citing Winter, 555 U.S. at 24)). The district court’s remedy of requiring Tucson Sector Border Patrol to provide all detainees with a mat once at a Tucson Sector station for twelve hours is more burdensome than necessary because it interferes with stations’ operations and is not sufficiently tailored to the claimed constitutional violation.
Defendants do not contest that detainees may sleep while in Border Patrol custody. Defendants do object, however, to requiring sleeping mats to be provided after twelve hours, without exception, irrespective of the time of day or night, and without any consideration of operational needs. The requirement is overly rigid in that it allows compliance only one way (by providing sleeping mats after twelve hours), even when the detainee does not need mat and regardless of circumstances of his or her processing or the time of day.
The rigid mandate ignores the purpose of Border Patrol custody which is to allow for the identification and processing of individuals, so that they can be promptly released or transferred into the custody of other agencies, and interferes with the Border Patrol’s legitimate interests. See SUPP ER 993-97 (noting hold
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room capacity reductions and inability to prosecute detainees accused of trafficking). More specifically, it ignores evidence Defendants presented that it is not possible in many cases to complete processing in less than twelve hours, especially in light of other important needs that detainees have that must be met, such as meals and consular meetings. ER 73-74, 107-10, 177; SUPP ER 992.
While in some cases a twelve-hour mandate may be workable, in others it is counterproductive. If an individual arrives for intake at a Tucson Sector station at 1:00 a.m., and the Tucson Sector still is in the midst of processing him at 12:55 p.m. and reasonably foresees that processing can be completed and the individual transferred to long-term ICE custody by 3:00 p.m., it nonetheless must pause its processing, provide the individual a sleeping mat, and document the transaction. This may delay the individual’s transfer to a long-term facility where he can sleep comfortably and receive the other amenities available in long term facilities. At the same time, providing a sleeping mat at the twelve hour mark will not necessarily ensure that a detainee will get meaningful rest at that time because he still may be required to participate in processing.
The rigid mandate also interferes with the Tucson Sector’s legitimate interests because it lacks a safety valve for “surge” situations, or other unforeseen situations which may occur in a law enforcement that operates twenty-four hours a day, seven days a week. It does not take into account the possible existence of
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alternative ways to alleviate the harm Plaintiffs’ allege and the possibility that future technological developments may provide additional alternatives. It effectively reduces the capacity of Tucson Sector stations because the sleeping mats take up space, and creates a risk that, during a surge or other urgent situation, the Border Patrol would be unable to detain every individual it apprehends, and thus, as a practical matter, would be compelled to release them so as not to disobey the Court’s order. This situation is a derogation of fundamental principles of national sovereignty, and may in some cases violate the Immigration and Nationality Act. See 8 U.S.C. § 1252(f)(1) (prohibiting courts from fashioning class wide injunctive relief that would enjoin or restrain the operation of the detention provisions of the Act). In fashioning the twelve-hour sleeping mat requirement, the district court articulated no analysis of the Tucson Sector’s functions or operational needs, nor whether the remedy would be excessive in light of these legitimate interests.13 In denying Defendants’ request for reconsideration of the remedy, the district court reasoned that a missed prosecution is “not the
13 The district court also erred in relying on its observation that some hold rooms remained empty based on a few photographs presented by Plaintiffs. ECF 261 at 3. Defendants presented significant evidence that Border Patrol stations must separate detainees by age, gender, and other factors, which would explain why, at a particular moment, a hold room full of male detainees might be located in the same station as an empty hold room, which must remain available to hold female detainees or family groups. ER 107-08; SUPP ER 904.
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same as releasing a detainee.” ER 3. This reflects that the district court did not meaningfully consider the Border Patrol’s mission to promptly transfer, transport, process, release, or repatriate detainees as appropriate. TEDS ¶¶ 1.8, 4.1. It also disregards the seriousness of the consequences of complying with the twelve-hour sleeping mat requirement, which have included missed prosecutions and, for some detainees, increased detention times. SUPP ER 993. Therefore, even if this Court declines to find that the district court relied on an improper analysis of the constitutional standard, and finds that detainees in Tucson Sector Border Patrol stations have some right to the provision of items that assist with enabling sleep during their time in Border Patrol custody, the Court should nonetheless remand to the district court to establish a remedy for any such violation that is more appropriately tailored to address the alleged harm.
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IV. The Court should deny Plaintiffs’ appeal because the district court did not abuse its discretion in fashioning the remaining forms of injunctive relief in its preliminary injunction order. A. The district court did not abuse its discretion in requiring the Tucson Sector to use a medical screening form that is consistent with the TEDS Standards.
Defendants do not contest that the constitution requires a system of ready
access to adequate medical care, but, consistent with Section II, above, contend
that the access to medical care provided at Tucson Sector Border Patrol stations
satisfies the constitution when properly considered under the test laid out in Bell.
However, should this Court let stand the district court’s conclusions regarding
Plaintiffs’ access to medical care, then the Court should further conclude that the
district court’s remedy was tailored to the harm alleged. ER 30. The district court
was persuaded by the observation of Plaintiffs’ expert that, between June 10 and
September 28, 2015, the Tucson Sector referred 527 out of approximately 17,000
detainees to hospitals or other medical facilities.14 That Tucson Sector did not
14 This conclusion ignores and fails to meaningfully consider the testimony of Defendants’ expert, Dr. Harber, who testified at the hearing that he reviewed a number of Treatment Authorization Forms from Tucson Sector Border Patrol and concluded that “there is a great variety of things for which they are referring, something as simple as a rash or a cactus spine in the hand, on up to people like this who—like this particular one you’re showing me, somebody who needs medication, to things that may be imminently in need of medical care. So that it’s clear they are doing referrals and, secondly, it’s not just for the most serious cases.” ER 186-87. Notably, Plaintiffs’ expert Dr. Goldenson acknowledged that
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appear to have a formal screening program in place, and that Tucson Sector was not using a screening form that met TEDS standards. ER 29-30. Plaintiffs now object to the remedy ordered by the district court of requiring Defendants to implement the TEDS standards for medical screening, because, in Plaintiffs’ view, only “medical personnel” are qualified to perform intake screening, and the TEDS standards allow Border Patrol agents to screen individuals at intake. Pls’ Br. at 3343. Plaintiffs do not define “medical personnel.” Plaintiffs rely on a number of judicial opinions in support of their position. See Pls’ Br. at 33-34. While all of them concern the right of a detainee to screening or ready access to medical care, all are inapposite to the instant case and do not actually support Plaintiffs’ position. Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974), concerned harm that doctors inflicted on an inmate by performing unauthorized surgery without his consent which gave rise to a colorable claim of a violation of his Fourteenth Amendment right to security in the privacy of his own body. Considering that Plaintiffs are not claiming that they are being subjected to medical procedures without their consent, Runnels s inapposite. Plaintiffs rely on Toissant v. McCarthy, 801 F.2d 1080, 1111-12 (9th Cir. 1986), Pls’ Br. at 34, in which the Court observed that medical
he had not reviewed Defendants’ production of Treatment Authorization Forms. ER 334-35. It appears therefore that even if the Court did make a finding of fact, it was clear error.
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technical associates and inmates may have been engaged in the practice of medicine at Folsom Prison, and that, if true, this may have constituted deliberate indifference to plaintiffs’ medical needs. Here, Plaintiffs do not claim that unqualified individuals are engaged in the practice of medicine at Border Patrol stations. In fact, the evidence shows that Border Patrol agents have training as first responders, with some having training as EMTs and Paramedics, and that all medical issues are referred to the hospital when medical treatment is needed. SUPP ER 924; ER 117. Plaintiffs also rely on Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187-91 (9th Cir. 2002), Pls’ Br. at 34, in which a county jail’s policy of delaying medical screening of combative inmates led to the decedent’s death from a heart attack. However, Plaintiffs point to no evidence that suggests that Border Patrol has any such policy, or that medical care for any detainee has been delayed by Border Patrol’s medical policies and practices. In Lareau v. Manson, 651 F.2d 96, 102, 109 (2d Cir. 1981), Pls’ Br. at 35, the Second Circuit ruled that failure to screen for communicable diseases at an overcrowded prison facility constituted punishment in violation of the Due Process clause and ordered that no inmate be confined for more than forty-eight hours without an examination by a physician or nurse or medically trained technician acting under a physician’s direction. In contrast, in the instant case, nearly all detainees are released within forty-eight hours, making such a requirement unnecessary and unduly burdensome if imposed
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here, especially if it is imposed, as Plaintiffs request, prior to the forty-eight hour detention mark. Moreover, Dr. Harber testified that agents receive training to identify communicable diseases and regularly interact with and observe detainees, and any detainee presenting any symptoms of such conditions is transferred to a hospital and provided medical care. SUPP ER 927-28; ER 188. Finally, Plaintiffs rely on Olsen v. Layton Hills Mall, 312 F.3d 1304, 1319-20 (10th Cir. 2002), Pls’ Br. at 35-36, in which an arrestee with obsessive-compulsive disorder had a panic attack while seated in a squad car and prebooking officers at the jail incorrectly recorded his condition as “CDC” rather than “OCD.” The Tenth Circuit concluded that the county jail’s scant procedures for dealing with mental illness and the prebooking officers’ apparent ignorance to the arrestee’s requests for medication may have violated the arrestees’ rights. Id. at 1320. However, the court of appeals in that case did not hold (or even suggest) that it was required for a medical or mental health professional to conduct screening during prebooking, and the decision therefore is not applicable to the case at hand.
Notably, Plaintiffs rely on inapplicable opinions addressing medical screening at several types of institutions, but not Border Patrol stations or any comparable detention facilities. Plaintiffs’ are silent regarding the brevity and nature of Border Patrol detention, the training that Border Patrol agents receive to screen and identify a variety of medical issues that may require treatment by a
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medical professional, and policies and practices of Border Patrol which result in a number of detainees’ being transferred to area hospitals and receiving care for a wide range of conditions identified by Border Patrol agents.
Moreover, Plaintiffs’ argument that the practice of confiscating medications at intake—a practice their own expert deems acceptable and commonplace in detention facilities, ER 110, 121, 325-26—is unconstitutional when done by Border Patrol agents, Pls’ Br. at 37-40, is equally unpersuasive. Plaintiffs again rely on hearsay declarations provided by declarants who did not compose them, could not read them, and were never cross examined about their contents, asserting that Border Patrol agents confiscated their medication. See, e.g., Pls’ Br. at 39 (citing ER 653-54 asserting that Border Patrol agents withheld a pregnant woman’s medication and told her that she would be deported). Plaintiffs further assert that Defendants have no policy for dispersal of confiscated medications, Pls’ Br. at 40, but ignore the TEDS standard stating that non-United States-prescribed medications should be validated by a medical professional or taken to a medical practitioner to obtain an equivalent United States prescription. TEDS § 4.10. The TEDS standards further provide that exceptions to the validation requirement may be made after consultation with a medical professional. Id. Finally, TEDS provides that while in Border Patrol custody an individual’s medication should “be selfadministered under the supervision of an officer/agent.” Id. Both parties’ experts
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testified that referring a patient to the hospital to obtain a U.S. prescription for their medications is acceptable. ER 120, 121, 153, 326-27, 337, 342; SUPP ER 922-23.
The district court concluded that Plaintiffs were likely to prevail on their claims unless Defendants were in compliance with the TEDS standards with regard to medical care. Thus, the district court ordered Defendants to ensure that their medical screening form was in use at all stations, and contained questions that complied with those TEDS requirements. Plaintiffs have not shown that the district court abused its discretion in crafting this remedy. ER 30. The district court’s requirement to implement a screening form complies with the TEDS standards is a workable solution narrowly tailored to its findings regarding the adequacy of Defendants’ medical screening process.
B. The district court did not abuse its discretion to require the Tucson Sector to provide detainees with sleeping mats and not necessarily beds for sleeping.
Plaintiffs challenge the district court’s decision to require Defendants to provide mats, rather than beds, to detainees, and argue that detainees who are held overnight are entitled to sleep in a bed, regardless of the context. Pls’ Br. at 44. The United States Constitution does not discuss sleeping at all, much less imply that a sleeping mat, rather than a bed on legs, would violate it somehow. Plaintiffs rely on Thompson v. City of Los Angeles, 884 F.2d 1439, 1448 (9th Cir. 1989), in which the Court noted that a pre-trial detainee’s detention lasting two nights
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without being provided a bed or a mattress constituted a cognizable Fourteenth Amendment claim. Pls’ Br. at 45. Plaintiffs also rely on Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986), in which the Third Circuit ruled that overnight confinement in jail cells without drinking water, food, or sleeping facilities— neither beds nor mattresses—constituted punishment. Pls’ Br. at 46. But neither Thomspon nor Anela are relevant to Plaintiffs’ argument that Defendants must provide beds to Tucson Sector detainees held in most cases for less than forty-eight hours, and that sleeping mats are unacceptable. While in Union County Jail Inmates v. DiBuono, 713 F.2d 984, 988-99 (3d Cir. 1983), the Third Circuit ruled that forcing detainees to sleep on mattresses on the floor violated detainees’ due process rights, see Pls’ Br. at 45 (citing DiBuono), Plaintiffs’ argument once again does not take into account the unique interests and operational needs of Border Patrol stations, where detainees come and go at all hours of the day and night and are detained in hold rooms with a finite amount of space, and the facility must have the flexibility to roll out sleeping mats when needed.
Plaintiffs oversimplify the issue by contending that Defendants’ primary concern is financial limitations. Pls’ Br. 47. In the context of this preliminary injunction motion, it was reasonable for the district court to consider the resources necessary to implement any remedy it decided to order. Even assuming hypothetically that the Tucson Sector had unlimited financial resources, immediate
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compliance with a requirement to provide beds to each and every detainee would be impossible, considering that the district court’s preliminary injunction ordered immediate, affirmative relief. Providing beds to all detainees would require Tucson Sector Border Patrol to construct or lease buildings, and to make substantial changes to its facilities and operations. Such expansive relief is rarely, if ever, appropriate in the context of a preliminary injunction. McCormack, 694 F.3d at 1019 (holding that a district court abuses its discretion by issuing an overbroad preliminary injunction). Injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs. Id. Thus, if this Court denies Defendants’ appeal as discussed above regarding the district court’s error in ordering Tucson Sector Border Patrol to provide detainees with mats after twelve hours in Border Patrol custody, it should leave that remedy in place, and should not order the additional, substantial, affirmative relief urged by Plaintiffs.
C. The district court did not abuse its discretion in not requiring Tucson Sector Border Patrol to provide showers to detainees after twelve hours.
Plaintiffs ask the Court to require Defendants to provide detainees with showers, rather than body wipes. Pls’ Br. at 50-55; ER 21. Plaintiffs claim that Border Patrol is “refusing to permit detainees to shower,” Pls’ Br. at 53, but this misstates the evidence. Rather, Chief Allen submitted testimony that, consistent
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with TEDS, Tucson Sector Border Patrol provides detainees an opportunity to shower if their detention approaches seventy-two hours, but that it is not possible to provide every detainee with a shower upon arrival at the facility because showers are not available at all stations, and because the time that this would take would significantly delay the processing of individuals and prolong their time in Border Patrol custody. SUPP ER 913. Plaintiffs do not provide any explanation how Tucson Sector Border Patrol could immediately comply with a requirement to provide showers at stations that lack shower facilities, nor do they acknowledge the significant burden that such a requirement would place on the operations of Tucson Sector Border Patrol, to the detriment of both the agency and the detainees. Again, injunctive relief is an “extraordinary remedy,” Winter, 555 U.S. at 24, and “must be tailored to remedy the specific harm alleged.” McCormack, 694 F.3d at 1019. An overbroad injunction is an abuse of discretion. Id. The Tucson Sector would not be capable of immediate compliance with an order to provide showers for all detainees when only two of the eight stations have shower facilities. The district court therefore acted within its discretion to allow the Tucson Sector the flexibility to provide detainees the ability to clean themselves by means other than showers.
Plaintiffs cite to the Court’s injunction in Toussaint v. McCarthy, 597 F.Supp. 1388, 1399 (N.D. Cal. 1984), aff’d in part, rev’d in part, 801 F.2d 1080, requiring a prison to provide inmates the opportunity to shower at least three times
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in one week. Pls Br. at 52. However, this timeframe is inapplicable to this case because individuals detained in Tucson Sector are rarely in custody for more than forty-eight hours. ER 71-72, 103; SUPP ER 1000. Again, by allowing Defendants to provide body wipes, which are manufactured for the purpose of cleaning off after intense physical activity and for use in environments where showers are not available, the district court tailored the remedy to the alleged harm, while at the same time ensuring that it did not burden the defendant more than necessary to provide complete relief. McCormack, 694 F.3d at 1019. The district court therefore acted within its discretion in fashioning the remedy requiring Defendants to provide detainees with the means to clean themselves, which need not be showers, after twelve hours in detention.
CONCLUSION This Court should remand the preliminary injunction for the district court to apply the correct legal standard in Bell, 411 U.S. 420. Or, if the Court declines to grant any relief with regard to the legal standard being applied, the Court should require the district court to modify the requirement to provide sleeping mats after twelve hours by replacing it with a more flexible requirement that takes into account the Tucson Sector’s operational needs. Finally, the Court should find that the remainder of the remedies ordered by the district court were within its discretion, and were properly tailored to provide relief for the alleged harms.
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Dated April 27, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
SARAH B. FABIAN Senior Litigation Counsel
/s/ Christina Parascandola CHRISTINA PARASCANDOLA Trial Attorney Office of Immigration Litigation District Court Section U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3097
Attorneys for Respondent

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), because the brief is proportionately spaced using Times New Roman 14-point typeface and contains 12,999 words exclusive of the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Counsel for Defendants used Microsoft Word 2010 to prepare this brief. The undersigned certifies that the text of the electronic brief is identical to the text in the paper copies filed with the Court and that the virus detection program Microsoft Forefront Endpoint Protection 2010 was run on this document and no viruses were detected.

Dated April 27, 2017

/s/ Christina Parascandola CHRISTINA PARASCANDOLA Trial Attorney Office of Immigration Litigation District Court Section U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3097

STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, counsel for the respondent states that based on a survey of the attorneys in her office, there are no other cases involving factual or legal issues similar to those in the instant case.

Dated April 27, 2017

/s/ Christina Parascandola CHRISTINA PARASCANDOLA Trial Attorney Office of Immigration Litigation District Court Section U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-3097

CERTIFICATE OF SERVICE I certify that on April 27, 2017, I electronically filed the foregoing Defendants-Appellants’ Opening Brief with the Clerk of Court for the United States Court of Appeals for the Ninth Circuit using the appellate CM/ECF system. I also certify that Plaintiffs-Appellees’ counsel are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Christina Parascandola CHRISTINA PARASCANDOLA

 
 Case: 17-15381, 12/22/2017, ID: 10700711, DktEntry: 44-1, Page 1 of 31

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE DOE, # 1; JANE DOE, # 2; NORLAN FLORES, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants/CrossAppellees,
v.

Nos. 17-15381 17-15383
D.C. No. 4:15-cv-00250-
DCB

JOHN F. KELLY, Secretary, United States Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner, United States Customs and Border Protection; RONALD VITIELLO, Chief, United States Border Patrol; JEFFREY SELF, Commander, Arizona Joint Field Command; PAUL BEESON, Chief Patrol Agent - Tucson Sector,
Defendants-Appellees/CrossAppellants.

OPINION

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Appeal from the United States District Court for the District of Arizona
David C. Bury, Senior District Judge, Presiding

Argued and Submitted October 16, 2017 San Francisco, California

Filed December 22, 2017

Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and David A. Ezra,* District Judge.

Opinion by Judge Callahan

SUMMARY**

Civil Rights
The panel affirmed the district court’s preliminary injunction in an action brought by civil detainees confined in U.S. Customs and Border Protection facilities within the Tucson Sector of the U.S. Border Patrol who alleged they were subjected to inhumane and punitive treatment.
The district court granted a preliminary injunction requiring that defendants provide detainees with mats and

* The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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blankets after 12 hours. Defendants appealed, alleging that the district court misapprehended the standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979), and that the order was too rigid and burdensome. Plaintiffs also appealed, alleging that the district court should have ordered defendants to provide the detainees with beds and mattresses, allow them access to showers, and deliver adequate medical care through medical professionals.

The panel held that the district court carefully considered plaintiffs’ allegations of constitutional violations, recognized the guidance provided by the Supreme Court in Bell, and issued a limited preliminary injunction requiring defendants to provide detainees with mats and blankets after 12 hours. Defendants failed to show that, in doing so, the district court misapprehended Bell or that the preliminary injunction was overly rigid or burdensome.

The panel found unpersuasive plaintiffs’ assertions that the district court should have required defendants to provide detainees with beds, showers, and medical treatment provided by medical professionals. The panel held that the district court recognized the unique mission of the Border Patrol and, at least for the purposes of a preliminary injunction, reasonably balanced the government’s interests and the detainees’ constitutional rights.

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COUNSEL

James R. Sigel (argued), Robert J. Esposito, and Elizabeth G. Balassone, Morrison & Foerster LLP, San Francisco, California; Deanne E. Maynard, Sophia M. Brill, Bryan J. Leitch, and Lena H. Hughes, Morrison & Foerster LLP, Washington, D.C.; Louise C. Stoupe and Pieter S. de Ganon, Morrison & Foerster LLP, Tokyo, Japan; Colette Rainer Mayer, Morrison & Foerster LLP, Palo Alto, California; Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, California; Kathleen E. Brody, Daniel J. Pochoda, and Brenda Muñoz Furnish, ACLU Foundation of Arizona, Phoenix, Arizona; James J. Cekola, Morrison & Foerster LLP, San Diego, California; Mary A. Kenney, Melissa E. Crow, and Aaron Reichlin-Melnick, American Immigration Council, Washington, D.C.; Elisa Della-Piana and Megan Sallomi, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California; Abigail L. Colella, Morrison & Foerster LLP, New York, New York; for Plaintiffs-Appellants/Cross-Appellees.

Christina Parascandola (argued), Trial Attorney; Sarah B. Fabian, Senior Litigation Counsel; William C. Peachey, Director; Chad A. Readler, Acting Assistant Attorney General, Civil Division; Office of Immigration Litigation, District Court Section, United States Department of Justice, Washington, D.C.; for Defendants-Appellees/CrossAppellants.

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OPINION

CALLAHAN, Circuit Judge:

The influx of detainees in the Tucson Sector of the U.S. Border Patrol in 2015 resulted in Defendants (federal government officials and agents) holding detainees being processed for longer periods of time in overcrowded and unsanitary cells at eight different stations. Plaintiffs brought this action alleging inhumane and punitive treatment, and seeking injunctive relief. The district court granted a preliminary injunction requiring that Defendants provide detainees with mats and blankets after 12 hours. Defendants appeal, alleging that the district court misapprehended the standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979), and that the order was too rigid and burdensome. Plaintiffs also appeal, alleging that the district court should have ordered Defendants to provide the detainees with beds and mattresses, allow them access to showers, and deliver adequate medical care through medical professionals. We hold the district court did not abuse its discretion and properly applied precedent such that neither side has shown that the limited preliminary injunction is illogical, implausible, or without support in the record. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

I. BACKGROUND

Plaintiffs filed this action in the United States District Court for Arizona on behalf of detainees confined in U.S. Customs and Border Protection Facilities within the Tucson Sector of the U.S. Border Patrol. The Border Patrol’s mission is to detect and prevent the entry of certain individuals—including terrorists, unauthorized aliens, drug

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smugglers, and other criminals—into the United States between ports of entry. The Tucson Sector patrols 262 miles of the United States-Mexico border in southern Arizona, and, according to Defendants, in fiscal year 2016, “apprehended 64,891 individuals, the second highest of any Border Patrol sectors.” The number of individuals apprehended in the Tucson Sector varies widely. Defendants represent that between 2009 and 2016, apprehensions each month ranged “from a high of 31,432 in March 2009, to a low of 4,071 in July 2015.”

When a Border Patrol agent apprehends an individual, the person is taken to one of eight stations in the Tucson Sector. At the station, the Border Patrol processes the detainee, ascertaining the individual’s identity and immigration and criminal history. The individual is then repatriated, transferred into the custody of another agency, referred for prosecution in accordance with the law or, in rare circumstances, released.

Plaintiffs alleged that the conditions in the stations were deplorable and that it took up to three days for individuals to be processed before transfer. Plaintiffs alleged that:

detainees are packed into overcrowded and filthy holding cells, stripped of outer layers of clothing, and forced to endure brutally cold temperatures. They are denied beds, bedding, and sleep. They are deprived of basic sanitation and hygiene items like soap, sufficient toilet paper, sanitary napkins, diapers, and showers. And they are forced to go without adequate food, water, medicine, and medical care.

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In the fall of 2016, the district court certified the case as a class action. Plaintiffs then sought a preliminary injunction.

II. THE DISTRICT COURT’S ORDERS

A. The Standards for Reviewing Conditions of Confinement

After setting forth the appropriate standards for issuing a mandatory preliminary injunction, the district court considered the standards for reviewing conditions of confinement. It first noted that when the government takes a person into custody, it must provide for the person’s “basic human needs—e.g. food, clothing, shelter, medical care, and reasonable safety.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Citing Bell v. Wolfish, 441 U.S. 520, 535 (1979), among other cases, the district court concluded that when evaluating the constitutionality of pretrial detention conditions, it had to determine whether the conditions amounted to punishment. Citing Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004), the district court explained that “[t]o constitute punishment, the governmental action must cause harm or disability that either significantly exceeds or is independent of the inherent discomforts of confinement.” The court noted that even in the absence of evidence of express intent, it may infer an intent to punish “if the restriction or condition is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective.” See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008).

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The district court noted that the Supreme Court held that “[m]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted and pretrial detainees.” Bell, 441 U.S. at 546. Indeed, the Supreme Court commented that “in the absence of substantial evidence in the record to indicate that officials have exaggerated their responses to these conditions, courts should ordinarily defer to their expert judgment in such matters.” Id. at 540 n.23 (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).

Based on these cases, the district court opined that a condition of confinement “violates the Fifth and Fourteenth Amendments if it imposes some harm to the detainee that significantly exceeds or is independent of the inherent discomforts of confinement and is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective.” See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015). This led the court to reason that decisions defining the constitutional rights of prisoners establish a floor for Plaintiffs’ constitutional rights. See Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir. 2012). The district court concluded that it could presume Plaintiffs were being subjected to punishment “if they are confined in conditions identical to, similar to, or more restrictive than those under which the criminally convicted are held.” See Sharp v. Weston, 233 F.3d 1166, 1172–73 (9th Cir. 2000).

The district court then observed:

This is precisely the case here. Assistant Chief Patrol Agent for the Tucson Sector,

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George Allen, admitted, when this Court asked him to compare the conditions of confinement at Tucson Sector Border Patrol stations with those afforded criminal detainees at the Santa Cruz County jail, that in jail, detainees have a bed, with blankets, clean clothing, showers, toothbrushes and toothpaste, warm meals, and an opportunity for uninterrupted sleep. Likewise, the conditions of confinement . . . improve once they are transferred from Border Patrol holding cells to detention centers operated by the United States Marshals.

The district court recognized that, in assessing the constitutionality of the conditions of confinement in the Border Patrol stations, due consideration had to be given to the nature, purpose and duration of an individual’s time in the station. The stations are 24-hour operations where many detainees arrive in the evening and at night. The holding rooms are not designed for sleeping and have no beds. “Defendants assert[ed] that providing sleeping facilities and turning off lights would require structural changes at the facilities, create safety risks, and impede its purpose to provide 24-7 immigration processing.” Defendants explained that when a detainee arrives at a station, outer-clothing is removed for security reasons, and detainees are placed into group-holding rooms based on age, gender, family units, or suspected criminal status. Processing includes obtaining biographical information and biometrics, submitting this information through the e3Nex Generation Identification system to determine prior criminal and immigration arrests, preparing an arrest report, immigration processing, consular notifications, and communication with family members and

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attorneys as appropriate. Processing, if uninterrupted, absent any remarkable criminal or immigration history, takes between two and two and one-half hours.

But, there usually are interruptions. Discovery revealed that between June 10, 2015, and September 28, 2015, only about 3,000 of approximately 17,000 detainees were processed out of detention within 12 hours. About 8,644 detainees were held at a Border Patrol station up to 23 hours; 6,807 were held for up to 47 hours; 1,207 were held up to 71 hours; and 476 were held for 72 hours or more.

The district court accepted for purposes of the preliminary injunction that the Border Patrol’s 2008 Hold Rooms and Short Term Custody Policy (2008 Policy) and the National Standards on Transport, Escort, Detention and Search (TEDS standards) provided for constitutional conditions of confinement. Although Defendants assert that these guidelines establish the status quo, the district court found that Plaintiffs had presented persuasive evidence that the basic human needs of detainees were not being met by Defendants’ current practices.

B. Plaintiffs’ Specific Complaints

1. Sleeping. The district court recognized that other detention facilities must provide individuals held overnight with beds and mattresses, and, thus, the absence of either violates the detainees’ due process rights. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc); Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3rd Cir. 1986). The court noted that of the 16,992 detainees held between June 10

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and September 28, 2015, only 122 were recorded to have received a mat, and the others’ bedding needs were met with only a Mylar sheet/blanket. The court found that this was contrary to both the 2008 Policy and the TEDS standards. It further noted:

the harshness caused by the lack of mats and the inadequacy of the Mylar blankets is compounded by the Defendants’ practices of keeping holding-cells lights turned on 24-7, feeding one of the three regular hot meals to detainees at 4:00 a.m., moving detainees in and out of holding cells throughout the night for processing, overcrowding cells which causes people to lie cramped together and next to toilet facilities or to sit or stand up, and because the hard concrete floors and benches retain the cold caused by low thermostat temperatures and make it too hard and cold to sleep.

The district court found the holding cells to be spatially inadequate. The district court determined that “the holdingcell capacity numbers cannot accommodate the number of detainees being detained longer than twelve hours because detention of this duration requires them to lie down to sleep rather than sit up.”

Defendants’ expert opined that the Border Patrol facilities were on par with short-term holding cells typically used during the booking process in jail facilities. The district court rejected the comparison because the booking process at a jail facility usually takes hours, instead of days. The district court, however, accepted that the holding cells need to be

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illuminated for security. On the other hand, it found no security or administrative reason “to wake up detainees by scheduling one of the three burrito meals at 4:00 a.m.”

The court also found that the Mylar blankets do not provide insulation from the cold concrete, but merely prevent evaporation and retain 80% of body heat when wrapped around a person. In light of the sedentary nature of detention, the district court required that Defendants continue to monitor cell temperatures, which were maintained at temperatures between 71 and 74 degrees. The district court concluded that Defendants were violating Plaintiffs’ constitutional right to sleep, and ordered that Defendants provide detainees held for longer than 12 hours mats and Mylar blankets.

2. Sanitation. The district court explained that a sanitary environment is a basic human need that must be met by all penal institutions. See Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996). Plaintiffs’ expert opined that Defendants were not complying with their own standards, noting that: (a) all areas, including floors and toilets, were badly soiled; (b) hold rooms lacked trash receptacles; (c) toilet stalls lacked waste receptacles for sanitary napkins, diapers, and other bathroom waste; (d) cleaning supplies were not segregated from food storage; and (e) “cleaning crews did not appear to clean and sanitize common-touch points in detainee areas.” Although prison standards require one toilet for every 12 male prisoners and one toilet for every 8 female prisoners, in most cases the number of toilets in each holding room was inadequate. One large holding room with a capacity of 88 had one working toilet and one non-flushing toilet. Moreover, many toilets were combined sink/toilet fixtures with the sink fixture on top of the toilet creating a potential for contamination.

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Defendants responded that all but one holding cell are cleaned twice a day, and that they had begun placing trash receptacles in the holding cells. Defendants further asserted that soap had been made available to detainees upon request, and that, where water fountains were inoperable, water coolers had been placed in the cells.

The district court preliminarily ordered “compliance monitoring to ensure detainees have access to working toilets and sinks, soap, toilet paper, garbage receptacles, tooth brushes and toothpaste, feminine hygiene items, baby food, diapers and clean drinking water.”

The district court was also critical of the lack of shower facilities. It noted that a person who had been trudging across the Arizona desert would likely be dirty, but only two stations had shower facilities, and those were sparsely used, generally for detainees who were suspected of having scabies. Only 115 detainees out of the 16,992 held between June 10 and September 28, 2015 were given showers.

Addressing the lack of shower facilities, the district court noted that jail standards require access to showers and washbasins with hot and cold running water, with daily showers available. Defendants responded that the lack of showers was not a problem because most detainees are transferred within 72 hours and TEDS standards only require that reasonable efforts be made to provide showers for detainees approaching 72 hours of detention.

The district court was critical of Defendants’ failure to recognize the basic human need to wash during detention, but also noted that courts are extremely reluctant to find constitutional violations based on temporary deprivations of

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personal hygiene. Accordingly, the court preliminarily ruled that Defendants “need only provide some means or materials for washing and/or maintaining personal hygiene when detainees are held longer than 12 hours.”

3. Medical Care. The parties agreed that Defendants are constitutionally required to provide ready access to medical care, but disagreed on the contours of this right. Plaintiffs challenged the adequacy of Defendants’ intake screening, alleging that: (1) the screening is performed by Border Patrol agents, not doctors, nurses, or other specially trained personnel; (2) Defendants do not maintain a medical treatment program capable of responding to emergencies because they do not have medical staff on site; and (3) “the practice of confiscating incoming detainees’ medication creates impermissible and heightened risk that detainees will experience a medical emergency.”

Defendants responded that TEDS standards provide a system of ready access to adequate medical care. Before a detainee is placed in a hold room, an agent questions the individual and visually inspects for any sign of injury, illness, or physical or mental health concerns. Observed or reported injuries or illnesses are to be communicated to a supervisor and documented in the appropriate electronic system. Treatment plans and medication should accompany detainees when they are transferred or discharged. Defendants asserted they have personnel at the stations who can treat emergencies, and routinely transfer detainees to hospitals for emergency care.

Plaintiffs’ expert, however, claimed that there was no evidence of any formalized screening process being carried out by agents at the detention centers. The e3DM data system

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reflected around 527 incidents of medical treatment for approximately 17,000 detainees. The expert explained there are two components to screening: (1) immediate medical triage to determine whether there is any issue that would preclude acceptance into the facility, and (2) a more thorough medical and mental health screening. The expert was critical of the field screening because it was not done pursuant to any standardized protocol, and therefore did not adequately identify urgent or emergent health care needs or potentially communicable diseases.

The district court preliminarily required compliance with TEDS standards, “including measures to ensure the Medical Screening Form currently being used by Defendants at some stations is used in all stations, and that the form ask questions to ensure compliance with TEDS standards for screening and delivering medical care.”

C. Preliminary Injunctive Relief

Having held that Plaintiffs were likely to succeed on the merits, the district court considered the other criteria for issuing a preliminary injunction. It held that Plaintiffs were likely to suffer irreparable harm due to the deprivation of constitutional rights in the conditions of confinement, which cannot be adequately remedied through damages. The balance of equities and public interest favored relief, in part, because the “government suffers no harm from an injunction that merely ends unconstitutional practices and/or ensures that constitutional standards are implemented.” See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013). The district court concluded that Defendants “cannot sidestep reality by relying on the structural limitations of the Border Patrol detention facilities.” Rather, “[i]f detainees are held

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long enough to require them to sleep in these facilities, take regular meals, need showers, etc., then the Defendants must provide conditions of confinement to meet these human needs.” Although it found no evidence of intent to punish, the court found “no objectively reasonable relationship between 24-7 immigration processing or security and the conditions of confinement which Plaintiffs have preliminary shown exist in the Tucson Sector Border Patrol stations related to sleeping, sanitation, food, and medical care.”

The court ordered:

1. Clean bedding, which Defendants assert they are providing to all detainees, must include a mat and a Mylar blanket for all detainees being held longer than 12 hours.

2. Personal hygiene needs of detainees held longer than 12 hours include the need to wash or clean themselves.

3. Defendants shall implement the universal use of their Medical Screening Form at all stations and ensure that the form questions reflect the TEDS requirements for delivery of medical care to detainees.1

1 The district court further ordered that “Defendants shall monitor for compliance the following: availability of working sinks and toilets and/or other materials sufficient to meet the personal hygiene needs of detainees on a per cell per station basis; cell temperatures; cell sanitation and cleanliness; delivery to detainees of bedding, including mats, personal hygiene items such as toilet paper, toothbrushes and toothpaste, feminine hygiene items, baby food, diapers, and meals.”

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D. The January 3, 2017 Order

Defendants sought reconsideration and modification of the preliminary injunction. The motion outlined the Border Patrol’s compliance with the preliminary injunction. Detainees were being provided with mats, showers were being offered to some detainees and others were being given body wipes to clean themselves, all stations were provided with the current medical screening forms, and all stations had been instructed to monitor for compliance with TEDS standards for medical screening. Defendants, however, sought reconsideration asserting that: (a) allowing detainees to lie down to sleep had significantly reduced the holding cell capacity numbers, and had interfered with their ability to transfer individuals efficiently; (b) compliance had increased processing time; (c) compliance had added obstacles to Defendants’ compliance with the Prison Rape Elimination Act, which requires separating and monitoring vulnerable populations; and (d) compliance had resulted “in prosecutions forfeited for lack of timely presentment.”

The district court denied the request for reconsideration. It noted that providing detainees with mats and allowing them to lie down to sleep would always require that Defendants acquire more space. The district court was not persuaded by Defendants’ assertion that due to their 24-7 operational needs, they could not separate out detainees who approach 12 hour detentions. The court noted that it had seen empty cells adjacent to full cells and that Defendants admitted to separating out at-risk vulnerable population detainees. The court further stated that Defendants sought to suspend the 12hour limit “without offering any plan or time-line for full compliance,” and the court “cannot suspend what it believes are constitutional rights.”

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The district court did clarify its order. It explained that: (1) for detainees held more than 12 hours, “Defendants must provide bedding, including mats and Mylar blankets and some means to maintain personal hygiene;” (2) the court “did not order Defendants to provide showers;” and (3) “the 12hours begins to run from when the detainee arrives at the station.”2

III. ANALYSIS

A. Standard of Review

Plaintiffs are entitled to preliminary injunctive relief if they show: (1) likely success on the merits; (2) likely irreparable harm absent preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public’s interest. Pimental v. Dreyfus, 670 F.3d 1096, 1105–06 (9th Cir. 2012); Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). Under our “sliding scale” approach, a stronger showing of one element may offset a weaker showing of another, as long as plaintiffs “establish that irreparable harm is likely.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

A preliminary injunction should be set aside only if the district court “abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Puente Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th

2 Out of an abundance of caution, Defendants had initially calculated the 12 hours from the moment an individual was apprehended, rather than the individual’s “book-in to a station.” The clarification accommodated the Border Patrol’s concern that apprehensions often occur in remote areas long distances from their stations.

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Cir. 2016) (quotation omitted). Legal conclusions are reviewed de novo. Pimental, 670 F.3d at 1105. A district court “necessarily abuses its discretion when it bases its decision on an erroneous legal standard.” Harris v. Bd. of Supervisors of Los Angeles Cnty., 366 F.3d 754, 760 (9th Cir. 2004) (quoting Rucker v. Davis, 237 F.3d 1113, 1118 (9th Cir. 2001) (en banc), rev’d on other grounds, Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002).

If the district court identifies the correct legal standard, “it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quotation omitted). Rather, the court only abuses its discretion when its application of the standard is “illogical, implausible, or without support in inferences that may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

Furthermore, we have held that the district court has broad discretion to fashion remedies once constitutional violations are found. Hoptowit v. Ray, 682 F.2d 1237, 1245 (9th Cir. 1982), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).

B. The District Court Properly Read and Applied Bell v. Wolfish

On appeal, Defendants assert that the district court misinterpreted and misapplied Bell. They argue that the court disregarded the Supreme Court’s caution against courts becoming enmeshed in the minutiae of facility operations and

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“failed to take any meaningful account of the unique nature of detention at Border Patrol facilities.”

Defendants’ arguments are not well taken. The district court repeatedly cited Bell and recognized the Court’s admonition to defer to legitimate governmental objectives. However, the Supreme Court said much more. It set forth the standard for determining whether a condition of confinement was “imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” 441 U.S. at 538. The Court noted that a condition would not constitute punishment if it was “reasonably related to a legitimate governmental objective.” Id. at 539. But if a condition “is arbitrary or purposeless—a court permissibly may infer that the purpose of the government action is punishment that may not constitutionally be inflicted on detainees.” Id. The district court applied this standard.

At its core, Defendants’ objection that the district court “failed to take any meaningful account of the unique nature of detention at Border Patrol facilities” is not a challenge to the district court’s interpretation of Bell, but a disagreement with the application of Bell to the facts in this case. As such, Defendants must show an abuse of discretion—that the district court’s order “is illogical, implausible, or without support in inferences that may be drawn from the record.” Hinkson, 585 F.3d at 1262.

The record reveals that the district court sculptured the relief granted to reflect the unique features of Border Patrol stations and field operations. It did so by requiring only mats and Mylar blankets instead of beds and mattresses, by allowing body wipes for cleaning rather than showers, and by allowing non-medical personnel to medically screen

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detainees.3 The limited injunction reflects the district court’s careful consideration of the unique nature of Border Patrol stations in light of Bell.

The only aspect of the preliminary injunction that Defendants specifically challenge on appeal is the allegedly “rigid” requirement that they provide mats to all individuals detained for 12 hours or more. However, Defendants do not contest that detainees may sleep while in custody, or even that the 12-hour mandate might be workable in some cases. Rather, they argue that the rule “ignores the purpose of Border Patrol custody”; that it might be counterproductive if an individual arrives at the station in the middle of the night and is likely to be transferred in the afternoon; and, lacks a safety valve for a “surge” or other unforeseen situations.

These arguments are not persuasive. First, it is not unreasonable to infer that a person who has been detained in a station for over 12 hours (after having been awake for some period of time before his detention) has a right to lie down and rest, even in the middle of the day. Second, it is by no means clear that providing detainees with mats after 12 hours is more burdensome than providing them with mats at any other time.4 Third, there is little to no evidence that providing detainees with mats interferes with the Border Patrol’s identification and processing of individuals. Fourth, there is nothing in the record to suggest that Defendants ever sought

3 In addition, the district court allowed the lights in the holding cells to remain on all night. Plaintiffs do not challenge this on appeal.
4 At oral argument, Defendants’ counsel stated that detainees are presently being given a blanket and mat when initially admitted to a holding cell.

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“surge” protection from the district court. Indeed, the Motion for Clarification alleged that providing detainees with mats would reduce the holding cells’ capacities. It did not allege that providing mats was in itself burdensome or that there was some need for flexibility.

In light of the deference due the district court in fashioning preliminary relief, Hinkson, 585 F.3d at 1262, Defendants have not shown that the district court abused its discretion in granting the limited preliminary injunction.5

C. Plaintiffs Have Not Shown that the District Court Abused its Discretion in Issuing Only a Limited Preliminary Injunction

Plaintiffs have not shown that the district court’s application of the law concerning beds, showers, and medical care to the facts in this case is illogical, implausible, or “without support in inferences that may be drawn from the facts in the record.” Id.

5 Defendants’ concerns that the preliminary injunction is “a derogation of fundamental principles of national sovereignty” or may violate the Immigration and Nationality Act because courts are prohibited “from fashioning class wide injunctive relief that would enjoin or restrain the operation of the detention provisions of the Act,” overstates the situation and the law. “Plaintiffs do not seek to prevent Defendants from inspecting, apprehending, excluding, or removing aliens,” and do not “challenge the government’s power to detain individuals who are suspected of crossing the nation’s borders without proper authorization.” Defendants have offered no case law suggesting that constitutional obligations may not indirectly implicate the manner and means by which the government carries out its responsibilities at the border. See Rodriguez v. Hayes, 591 F.3d 1105, 1120–21 (9th Cir. 2010).

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1. Beds. Plaintiffs argue that detainees held overnight are entitled to beds and mattresses. See Thompson, 885 F.2d at 1448 (noting that “a jail’s failure to provide detainees with a mattress and bed or bunk runs afoul of the commands of the Fourteenth Amendment”). But given the unique purpose of Border Patrol stations and Defendants’ limited resources, the district court reasonably limited preliminary relief to mats and Mylar blankets. The purpose of the stations is to process the detainees as efficiently as possible so that they may be transferred to other facilities or released. Defendants assert that, absent the influx of detainees in 2015, processing a person should have taken two or three hours. Thus, were the stations operating as intended, there would never have been any need for a bed or a mat. Accordingly, the stations are not set up to accommodate beds. Defendants have neither the space for beds and mattresses, nor, presumably, beds and mattresses that might be immediately moved to the stations. Under these conditions, granting Plaintiffs the immediate preliminary relief of mats and Mylar blankets was reasonable. It provides Plaintiffs with actual relief without imposing a huge cost on Defendants to alleviate what might be a temporary need. Evidence as to whether the need was likely to continue would certainly be relevant to the district court’s determination of Plaintiffs’ request for a permanent injunction. However, the possibility of such evidence does not undermine the logic and reasonableness of the district court’s preliminary injunction, which provided immediate and effective, if limited, relief by requiring Defendants to provide mats and blankets.

2. Showers. Plaintiffs assert that detainees have a right of access to showers. See, e.g., Toussaint v. McCarthy, 597 F. Supp. 1388, 1399 (N.D. Cal. 1984) (holding that “minimum standards of decency require that lockup inmates

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without hot running water in their cells be accorded showers three times per week in facilities reasonably free of standing water, fungus, mold and mildew”), aff’d in part and rev’d in part by Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986). However, practical considerations support the district court’s grant of limited relief allowing Defendants to provide Plaintiffs with body wipes to maintain a minimal level of personal hygiene. Apparently, only two of the eight stations even have showers. Moreover, unlike body wipes (and mats and blankets), which can be efficiently distributed, providing showers for thousands of detainees raises substantial security and logistical concerns. Diverting Defendants’ limited human resources to provide detainees with showers would almost certainly slow down the processing of detainees, thereby encumbering Defendants’ primary mission.

Furthermore, although Plaintiffs have a right to hygiene, the Constitution does not requires access to a shower within 12 hours or even 24 hours. The district court in Toussaint, held that inmates were entitled to showers three times a week. 597 F. Supp. at 1399. But case law does not compel the conclusion that they have a constitutional right to a shower when detained for fewer than two days.

3. Medical Care. There is no question that detainees are entitled to “adequate medical care.” See Toussaint, 801 F.2d at 1112 (“If plaintiffs correctly contend that unqualified personnel regularly engage in medical practice, precedent indicates that the prison health care delivery system may reflect deliberate indifference to plaintiffs’ medical needs.”); Hoptowit, 682 F.2d at 1252 (“Medical staffing is inadequate. Medical services are provided by nurse practitioners or physician assistants (mid-level practitioners), rather than physicians.”); Gibson v. Cty. of Washoe, 290 F.3d 1175,

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1187–89 (9th Cir. 2002). However, Plaintiffs have failed to show that the district court’s determination is not a reasonable application of case law to the particular facts in this case. In particular, precedent allows considerable flexibility as to when and how constitutionally “adequate medical care” is provided.

The cases cited by Plaintiffs concern settings different from those at issue here, and do not hold that all medical screening must be done by medical professionals. First, Hoptowit concerned medical care at the Washington State Penitentiary. 682 F.2d at 1245. We agreed with the district court that the existing conditions violated the Eighth Amendment. Id. (“The Eighth Amendment requires that prison officials provide a system of ready access to adequate medical care.”). However, we held that remedies ordered by the district court were overbroad, and that “the court could go no farther than to bring the medical services up to the constitutional minima.” Id. Although prisoners must be able “to make their medical problems known to the medical staff,” the referrals may be to “facilities outside the prison if there is reasonably speedy access to these other physicians or facilities.” Id. We were particularly critical of the district court’s order that the penitentiary hire full time physicians, stating that the court must first determine that the penitentiary’s use of outside services “could not meet the constitutional minimum.” Id. at 1254.6

6 We explained:
The district judge could find that in-prison staff was necessary if he found that the State’s approach was necessarily inadequate. He made no findings, however, concerning the availability and adequacy of treatment outside the prison. It could well be that with improved

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Second, Toussaint concerned conditions of confinement at four California prisons. 801 F.2d at 1085. Health care at the Folsom Prison was only one of the issues the Ninth Circuit addressed. Id. at 1111–12. We recognized that denying prisoners medical attention may constitute a violation of the Eighth Amendment “if the denial amounts to deliberate indifference to serious medical needs of the prisoners.” Id. at 1111 (citation omitted). However, we remanded the plaintiffs’ claim that the defendants placed “an unconstitutional degree of reliance on MTAs [medical technical assistants], registered nurses (RNs) and inmate workers.” Id. We explained:

Defendants respond that MTAs, RNs and inmates are qualified to perform a number of services. If plaintiffs correctly contend that unqualified personnel regularly engage in medical practice, precedent indicates that the prison health care delivery system may reflect deliberate indifference to plaintiffs’ medical needs. Therefore, we must remand for entry

mid-level staffing in the prison, improved transportation, and an adequate plan for medical treatment in the community, the approach taken by the State would be constitutionally permissible. Before the district judge ordered the prison to hire in-house physicians and effectively scrap its approach to medical services, he should have first determined that this approach could not meet the constitutional minimum. Absent such a finding, the district court should have ordered the prison officials to improve the in-house staffing and procedures within the framework of the penitentiary’s approach to medical services.
Hoptowit, 682 F.2d at 1254.

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of explicit factual findings regarding the nature of services performed by MTAs, RNs, and inmates, their level of medical qualification, and the level of qualification required to adequately render the services that they perform.

Id. at 1111–12 (citation omitted). Thus, not all use of “unqualified” medical personnel is prohibited by the Constitution. Rather, Toussaint proscribes having “unqualified personnel regularly engage in medical practice.”

We find the third case cited by Plaintiffs, Gibson, to be so different from the case before us as to have little application. 290 F.3d 1175. Stephen Gibson, who suffered from manic depressive disorder, died of a heart attack while resisting being moved to a special watch cell in the county jail. Id. at 1181–83. His wife and children filed a § 1983 due process action against the Washoe County Sheriff’s Department alleging excessive force, deliberate indifference to Stephen’s serious mental health condition, and that the deputies’ actions resulted from the practices of the Sheriff’s Department. Id. at 1184. The district court granted summary judgment for the defendants. Id. at 1185. We reversed in part, holding that the County, but not the individual deputies, could be liable for deliberate indifference. Plaintiffs cite Gibson as establishing a right, at the intake stage, “to competent treatment encompass[ing] a right to prompt screening by medical staff, which is necessary to identify health emergencies, medication needs, and contagious diseases requiring quarantine.” Plaintiffs overlook that, in Gibson, we determined that the County’s potential liability for deliberate indifference was based on review of the County’s past practices and its

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policies.7 The record before us does not contain similar evidence of deliberate indifference by the Border Patrol to the detainees’ medical needs.

Moreover, while Plaintiffs are entitled to adequate medical care, our precedent does not require that all stages of medical care be provided by trained medical staff. Rather, our opinions in Hoptowit and Toussaint held that, before directing an agency to retain medical personnel, a court must first evaluate whether the government’s proposed plan adequately meets the detainees’ medical needs.

Defendants assert that Border Patrol agents have training as first responders, and that some have training as EMTs and Paramedics. They also represent that agents receive “training to identify communicable diseases and regularly interact with and observe detainees, and any detainee presenting any symptoms of such conditions is transferred to a hospital and provided medical care.”

The record does not indicate that the existing system of medical care, as directed by the district court, is inadequate. The most that Plaintiffs have shown is a low percentage of

7 We noted that it was the County’s policy that the jail’s medical unit be staffed 24 hours a day by licensed medical personnel and that when arrested, a person was to be medically screened. Gibson, 290 F.3d at 1183. For many years, the County “had employed . . . a full-time clinical mental health worker at the jail to perform mental health screening,” but at the time of Gibson’s death the County did not have a mental health worker “because of a soured relationship between the jail’s medical staff and the mental hospital.” Id. at 1184. We stated that “the record suggests that the County not only knew that it had to treat the mentally ill in order to avoid harm, but that it had made a practice of ignoring this need.” Id. at 1191.

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the detainees received medical treatment (3%), and a few incidents of inappropriate action.8 Indeed, there is no evidence of Defendants denying critical medical care to a detainee with dire consequences. As most detainees are released within a day or two, medical care may have been delayed, rather than denied.

In addition, Defendants assert that complying with TEDS standards should provide detainees with adequate access to their prescriptions because these standards provide for detainees’ medications to “be self-administered under the supervision of an officer/agent,” and both parties’ experts agreed that “referring a patient to the hospital to obtain a U.S. prescription” is acceptable.

Plaintiffs’ reply brief reveals little or no evidence of inadequate medical treatment of detainees. Plaintiffs question whether Border Patrol agents really receive training as first responders and note that very few have training as EMTs and Paramedics. This may be true, but says nothing about the adequacy of medical care currently delivered. Plaintiffs argue that it cannot be true that all medical issues are referred to the hospital when medical treatment is needed,

8 Plaintiffs relate instances where: (1) the agents withheld a pregnant woman’s medication even though she yelled in pain, and told her not to cry because she was just going to be deported; (2) a woman’s medication for an ovarian cyst was confiscated and withheld for the 12 hours she was detained; (3) the government confiscated a woman’s migraine-headache medicine after she turned herself in to the Border Patrol; and (4) the government ignored a man’s plea for the prescription medication he needed to treat a painful heart condition. Accepting that these actions were wrong, Plaintiffs have not shown that the errors were not corrected. Moreover, they are not sufficient to establish a practice or policy that requires preliminary injunctive relief.

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because only 527 out of 17,000 detainees were referred to the hospital. But this low number is not unreasonable given that over half of the detainees are processed in less than 24 hours. Plaintiffs also argue that Defendants overstate their expert’s claims concerning their ability to identify and treat communicable diseases. But this is not evidence that detainees with symptoms of a communicable disease are not identified, segregated, and treated, if necessary. Finally, Plaintiffs challenge whether the practice of confiscating medications at intake is an acceptable practice, and argue that hearsay declarations concerning Plaintiffs’ medication claims are admissible at a preliminary injunction hearing. Again, this is not evidence that Defendants have not provided, or will not provide, adequate medical care.

We do not question that Plaintiffs have real and substantial concerns with the adequacy of the medical care provided to detainees. Rather, we hold only that Plaintiffs have not shown that the district court abused its discretion in determining, as a preliminary matter, that Defendants, by complying with the TEDS standards, are providing adequate medical care. Plaintiffs have not carried their burden of showing that the district court’s decision is “illogical, implausible, or without support in inferences that may be drawn from the record.” Hinkson, 585 F.3d at 1262.

IV. CONCLUSION

This litigation arises out of the influx of detainees in the Tucson Sector of the U.S. Border Patrol in 2015. The district court carefully considered Plaintiffs’ allegations of constitutional violations, recognized the guidance provided by the Supreme Court in Bell, 441 U.S. 520, and issued a limited preliminary injunction requiring Defendants to

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provide detainees with mats and blankets after 12 hours. Defendants have failed to show that, in doing so, the district court misapprehended Bell or that the preliminary injunction is overly rigid or burdensome. We also find unpersuasive Plaintiffs’ assertions that the district court should have required Defendants to provide detainees with beds, showers, and medical treatment provided by medical professionals. Plaintiffs have not shown that the district court’s determinations were “illogical, implausible, or without support in inferences that may be drawn from the record.” Hinkson, 585 F.3d at 1262. The district court recognized the unique mission of the Border Patrol and, at least for the purposes of a preliminary injunction, reasonably balanced the government’s interests and the detainees’ constitutional rights. The district court’s orders are AFFIRMED.

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► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
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Case: 17-15381, 12/22/2017, ID: 10700711, DktEntry: 44-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

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 Nos. 17-15381, 17-15383

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JANE DOE #1; JANE DOE #2; NORLAN FLORES, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants-Cross-Appellees,
v.
JOHN F. KELLY, Secretary, United States Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner, United States Customs and Border Protection; RONALD VITIELLO, Chief, United States Border Patrol; JEFFREY SELF, Commander, Arizona Joint Field Command; PAUL BEESON, Chief Patrol Agent – Tucson Sector,
Defendants-Appellees-Cross-Appellants.
Preliminary Injunction Appeals from the United States District Court for Arizona, Tucson, Hon. David C. Bury (Case No. 4:15-cv-00250-DCB)

PETITION FOR PANEL REHEARING OR REHEARING EN BANC

LOUISE C. STOUPE PIETER S. DE GANON MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522
COLETTE REINER MAYER MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 813-5600

JAMES R. SIGEL ROBERT J. ESPOSITO ELIZABETH G. BALASSONE MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-6948 JSigel@mofo.com
DEANNE E. MAYNARD SOPHIA M. BRILL BRYAN J. LEITCH MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 887-8740

Counsel for Plaintiff-Appellants-Cross-Appellees – Additional Counsel on Inside Cover

SAMUEL C. CORTINA MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, CA 92130 Telephone: (858) 720-5100 SCortina@mofo.com

MARY A. KENNEY AARON REICHLIN-MELNICK AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7512

LINTON JOAQUIN KAREN C. TUMLIN NORA A. PRECIADO NATIONAL IMMIGRATION LAW CENTER Suite #108-62 3435 Wilshire Boulevard Los Angeles, CA 90010 Telephone: (213) 639-3900

ELISA DELLA-PIANA BREE BERNWANGER LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444

KATHLEEN E. BRODY WILLIAM PEARD BRENDA MUÑOZ FURNISH ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, AZ 85014 Telephone: (602) 650-1854

TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii FRAP 35(b)(1) STATEMENT IN SUPPORT OF REHEARING EN BANC..........1 INTRODUCTION .....................................................................................................2 STATEMENT ............................................................................................................4 A.  Factual Background .........................................................................................4
1. The Tucson Sector stations....................................................................4 2.  Defendants’ inadequate medical care...................................................5 3.  The Stations’ sleeping accommodations ...............................................6 3.  The Stations’ showers............................................................................7 B.  Procedural Background ...................................................................................7 1.  District court proceedings.....................................................................7 2. The published panel opinion .................................................................9 REASONS REHEARING SHOULD BE GRANTED............................................12 I.  CIVIL DETAINEES ARE ENTITLED TO MEDICAL SCREENING CONDUCTED BY PROPERLY TRAINED PERSONNEL........................12 A.  Civil Detainees Need Not Demonstrate The Government’s Subjective Awareness Of The Inadequacy Of Its Medical Care.....................................13 B.  The Constitution Protects Detainees From The Risk Of Harm, Not Just Already-Realized Harm..........................................................................16 II. GOVERNMENT EXPENSE IS NOT AN ADEQUATE BASIS FOR DENYING PRELIMINARY INJUNCTIVE RELIEF TO REMEDY CONSTITUTIONAL VIOLATIONS ...........................................................18

CONCLUSION ........................................................................................................21 ii

TABLE OF AUTHORITIES
Page(s)
Cases
Bell v. Wolfish, 441 U.S. 520 (1979)............................................................................................14
Castro v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc) ..........................................11, 14, 15, 16
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983)............................................................................................17
Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010) ............................................................................14
Farmer v. Brennan, 511 U.S. 825 (1994)............................................................................................14
Foster v. Runnels, 554 F.3d 807 (9th Cir. 2009) ..............................................................................13
Gibson v. Cty. of Washoe, 290 F.3d 1175 (9th Cir. 2002) ....................................................10, 13, 14, 15, 17
Helling v. McKinney, 509 U.S. 25 (1993)..................................................................................11, 17, 18
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) ........................................................................14, 16
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)............................................................................14, 15, 16
Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) .................................................................................13
Lolli v. Cty. of Orange, 351 F.3d 410 (9th Cir. 2003) ..............................................................................13
iii

Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983) ............................................................................19
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ..............................................................................19
Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc) ............................................................19
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ............................................................................20
Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989) .............................................................9, 11
Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986) ......................................................................12, 13
Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981) ............................................................................19
iv

FED. R. APP. P. 35(B)(1) STATEMENT IN SUPPORT OF REHEARING EN BANC
Rehearing en banc is warranted because the panel’s opinion conflicts with the decisions of this Court and the Supreme Court and involves questions of exceptional importance.
The questions warranting rehearing en banc are: 1. Whether civil detainees’ right to adequate medical care encompasses a right to screening conducted by properly trained individuals supervised by medical professionals. 2. Whether, having found the existence of constitutional violations, a district court may decline to fully remedy them based on government expense.

INTRODUCTION When the government takes people into custody, it becomes responsible for their well-being. The panel opinion here absolved the government’s failure to fulfill that basic obligation in eight Border Patrol facilities in southern Arizona. In doing so, the panel committed multiple errors of law that will generate substantial confusion, and it left thousands of individuals exposed to ongoing constitutional violations. The surveillance photo below—showing individuals packed into a room, pressed together on the concrete floor, and shielded only by thin, foil-like “sheets”—provides just a sample of the evidence presented regarding the inhumane conditions endured by the individuals confined in these stations:
2

ER392. As the district court recognized, the Constitution prohibits the government from treating anyone in this fashion, let alone civil detainees. Nevertheless, the court refused to grant preliminary injunctive relief requiring the government to fulfill its constitutional obligations to provide adequate medical screening, sleeping accommodations, and showers.
In affirming this order, the panel committed fundamental errors that demand en banc review. First, in holding that the district court properly declined to ensure medical screening is conducted by individuals qualified to perform that critical task, the panel faulted Plaintiffs for failing to produce evidence: (1) that Defendants are subjectively aware of the inadequacy of their medical-screening process; and (2) that the substantial, unreasonable risks associated with this screening had already resulted in “dire consequences.” In both respects, the panel departed from established law. Both this Court and the Supreme Court have held that only convicted prisoners (protected by the Eighth Amendment) must meet such a subjective standard, and that pretrial or civil detainees like Plaintiffs (protected by Due Process) need not. Both this Court and the Supreme Court have also held that exposing a detainee to an unnecessary risk of harm—not just the realization of that risk—violates the Constitution. En banc review is needed to prevent the panel’s errors from sowing confusion in this important area of law, and
3

to ensure that Plaintiffs are afforded the adequate medical screening to which they are entitled.
Second, in holding that the district court had not abused its discretion in refusing to order Defendants to provide the beds, mattress, and showers the Constitution guarantees, the panel relied entirely on the financial costs Defendants might incur. Yet as this Court has long held, such costs cannot justify either continued constitutional violations or the denial of preliminary relief to address such violations. Review is necessary to make clear that the government cannot evade its constitutional obligations simply because compliance might be expensive.
Rehearing or rehearing en banc should be granted. STATEMENT
A. Factual Background 1. The Tucson Sector stations
Plaintiffs are a certified class of civil detainees confined in U.S. Customs and Border Protection facilities. They are generally apprehended following grueling, perilous journeys that have left them exhausted and dehydrated. ER458; ER454. Many are in need of immediate medical care. ER458.
Upon apprehension, Plaintiffs are taken to one of eight Tucson Sector “stations.” ER5. These stations were not designed for overnight detention. ER608; ER575. But the processing of individuals often takes a substantial amount
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of time. As a result, thousands of individuals each year are held in these facilities for 24, 48, or even 72 hours or more. ER860.
2. Defendants’ inadequate medical care While the eight Tucson Sector stations held roughly 65,000 individuals during 2016, none of the stations has a single medical professional (such as a doctor or registered nurse) on staff. ER171-172. Instead, Defendants rely on Border Patrol agents—who generally have received nothing more than basic firstaid training—to assess class members’ medical needs. ER768-769; ER115-116; ER564-565. Border Patrol agents provide the only medical screening class members receive. But the agents are not trained to discern whether an individual has any particular needs beyond emergency medical care that require additional attention. ER319. As a result, these agents merely conduct “a basic field interview” of each individual, which involves “brief questioning” and a “kind of pretty common sense looking at somebody, are they injured, are they bleeding, are they hobbling, is there something wrong with their leg, are they, you know, sweating profusely, coughing.” ER98-99; ER116. They are likely to miss signs of infectious diseases such as measles and chicken pox—which may spread rapidly through the overcrowded detainee population. ER286-287; ER322-323.
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Because of these cursory “screenings,” the instances in which class members receive medical assistance are astonishingly rare. ER528; ER458. At other detention facilities, it is not unusual for roughly half of those in custody to require medical treatment upon admission. ER327. By contrast, the Tucson Sector stations obtain outside medical treatment for 3% of the individuals held in the 2015 period sampled. ER528; ER511.
Border Patrol agents are also responsible for ensuring that class members have access to needed prescription drugs. Agents confiscate all non-U.S. prescribed medication and then determine whether the individuals who were carrying that medication will need replacements. ER458; ER769; ER154. Class members report having their medication confiscated and never replaced. ER514. They also report agents ignoring their requests for needed medication. ER513.
3. The Stations’ sleeping accommodations While class members need sleep, the “hold rooms” in which they are confined in the Tucson Sector stations are “not designed for sleeping.” ER432. The rooms feature bare concrete floors and benches. ER436; ER434, ER443. There are no beds or mattresses. ER439; ER486-487; ER15; ER544-545. As a result, most class members are forced to try to sleep directly on the concrete floors and benches. ER523-524. The only coverings they receive are Mylar sheets, which are paper-thin and look like tin foil. ER122; ER439; ER19.
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As the preliminary injunction record demonstrated, sleep is made all the more difficult by severe overcrowding. In some instances, individuals are forced to sleep near or in the hold rooms’ toilet stalls. ER486; ER837. In others, some have to sit or stand for all or part of the night because there is insufficient room for everyone to lie down. ER434.
3. The Stations’ showers The conditions in which class members are held are also highly unsanitary. ER480-481. Many arrive at the Tucson Sector stations dirty from days of travel in the desert. ER454-455; ER282-283. Nevertheless, as the district court found, “Defendants fail to recognize the basic human need to wash.” ER24. In fact, all but two of the stations lack shower facilities. ER173. And even at those stations, class members are virtually never allowed to shower. ER524. The lack of showers is made worse by the unsanitary conditions in which class members are kept. The hold room floors, walls, and fixtures are covered in filth and sometimes mold. ER483-485. Class members spend prolonged periods of time surrounded by trash because cleaning services at the stations are infrequent and inadequate. ER545. B. Procedural Background
1. District court proceedings Plaintiffs filed suit on behalf of themselves and all others similarly situated, alleging that Defendants hold the people in their custody in conditions that violate
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their Fifth Amendment right to Due Process. ER717. The district court certified a class of “all individuals who are now or in the future will be detained at a CBP facility within the Border Patrol’s Tucson Sector.” ER560.
After a two-day evidentiary hearing, the district court granted Plaintiffs’ request for a preliminary injunction in part. ER6; ER32. The court observed that civil detainees such as Plaintiffs are entitled to more considerate treatment than criminal detainees held in jails or prisons. ER13-14. And as the court emphasized, Defendants openly admitted that the conditions in the local jail—where detainees had access to beds and showers—were far superior to those confronting individuals held in the Tucson Sector stations. ER14.
But even having concluded that Plaintiffs had demonstrated a likelihood of success on the merits, the district court did not grant Plaintiffs full relief. With respect to medical care, the court simply ordered Defendants to (1) comply with their existing internal policies and (2) ensure that all Border Patrol agents consistently use a medical screening checklist. ER30. The order thus did not address the primary constitutional deficiency in Defendants’ existing medical screening: the unqualified, unsupervised Border Patrol agents who remain tasked with making critical medical determinations. ER27.
As for sleeping accommodations, the district court recognized that “[d]etention facilities (and prisons) must provide detainees held overnight with
8

beds and mattresses,” and that “the absence of either violates detainees’ due process rights.” ER16 (citing Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989)). But rather than compel adherence to these constitutional requirements, the court simply ordered Defendants to provide detainees held longer than 12 hours with mats and Mylar sheets—which they can use while sleeping on the hold rooms’ concrete benches and floors. ER32.
Finally, while the district court recognized that class members “are being denied the ability to wash or clean themselves for several days,” it concluded that showers were not required. ER25. Instead, it simply ordered Defendants to “provide some means or materials for washing and/or maintaining personal hygiene when detainees are held longer than 12 hours,” which it later clarified could be satisfied through the provision of “adult body wipes.” ER25; ER3.
2. The published panel opinion The published panel decision affirmed the district court’s order granting only limited preliminary relief. Op31.
a. Medical care Although acknowledging both that detainees are constitutionally entitled to “adequate medical care” and that Plaintiffs “have real and substantial concerns with the adequacy of the medical care provided,” the panel concluded that the district court had not abused its discretion in concluding its limited preliminary
9

relief was adequate. Op24, 30. Surveying this Court’s precedent, the panel first derived two uncontested premises: (1) no decision of this Court holds “that all medical screening must be done by medical professionals,” and (2) not “all use of ‘unqualified’ medical personnel is prohibited by the Constitution.” Op25, 27. Plaintiffs do not deny either proposition. Rather, they contend that screenings must be conducted by properly trained individuals overseen by medical professionals.
Yet the panel dismissed out of hand the Ninth Circuit decision that most closely bears on that particular proposition, Gibson v. Cty. of Washoe, 290 F.3d 1175 (9th Cir. 2002), declaring it “so different from the case before us as to have little application.” Op27. In Gibson, this Court had held that a County could be held liable for failing to provide a pretrial detainee with “competent treatment encompass[ing] a right to prompt screening by medical staff.” Op27. But, the panel here concluded, in Gibson “the County’s potential liability for deliberate indifference was based on review of the County’s past practices and policies” showing that the County was on notice of the need to provide such screening. Op27-28. And here, the panel concluded, the record “does not contain similar evidence of deliberate indifference.” Op28. The panel did not address subsequent precedent making clear that the subjective “deliberate indifference” standard Gibson merely assumed would apply outside the prison context is, in fact,
10

inapplicable outside that context. Castro v. Cty. of L.A., 833 F.3d 1060, 1069-70 (9th Cir. 2016) (en banc).
The panel further found it relevant that the preliminary injunction record did not reveal that Defendants’ faulty screening had led to the denial of “critical medical care to a detainee with dire consequences.” Op29 (emphasis added). It also observed that Border Patrol agents’ lack of training “says nothing about the adequacy of medical care currently delivered,” and that the record contained no direct “evidence that detainees with symptoms of a communicable disease are not identified, segregated, and treated, if necessary.” Op29-30. The panel did not attempt to reconcile these observations with binding precedent holding that exposing detainees to even the risk of harm can give rise to a constitutional violation. E.g., Helling v. McKinney, 509 U.S. 25, 35 (1993).
b. Sleeping accommodations and showers The panel treated the sleeping accommodation and shower issues in a similar manner. The panel did not deny that, under this Court’s precedent, detainees are entitled to both a bed and a mattress whenever they are held overnight. Op23 (citing Thompson, 885 F.2d at 1448). And while the panel expressed doubt that detainees have a right to a shower within 24 hours, it did not reject Plaintiffs’ contention that detainees held for longer periods of time—as thousands of class members are—have a constitutional right to a shower. Op24.
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Instead, the panel held that the district court acted reasonably in refusing to require Defendants to fulfill these mandates because of the resources compliance would demand. With respect to beds, the panel observed that “Defendants have neither the space for beds and mattresses, nor, presumably, beds and mattresses that might be immediately moved to the stations.” Op23. For that reason, the district court’s more limited relief “was reasonable,” as it would not “impos[e] a huge cost on Defendants to alleviate what might be a temporary need.” Op23. Similarly, with respect to class members’ need to shower, the panel concluded that “only two of the eight stations even have showers,” and that “[d]iverting Defendants’ limited human resources to provide detainees with showers would almost certainly slow down the processing of detainees.” Op24. The panel did not explain how the financial and similar costs the government might incur in fulfilling its constitutional obligations could justify its continued defiance of those obligations.
REASONS REHEARING SHOULD BE GRANTED I. CIVIL DETAINEES ARE ENTITLED TO MEDICAL SCREENING
CONDUCTED BY TRAINED PERSONNEL OVERSEEN BY MEDICAL PROFESSIONALS The constitutional right to adequate medical care requires the government to provide those it detains with treatment by individuals capable of rendering competent medical diagnoses. Toussaint v. McCarthy, 801 F.2d 1080, 1111-12
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(9th Cir. 1986). At the intake stage, this right to competent treatment encompasses a right to screening by properly supervised staff trained to identify health emergencies, medication needs, and contagious diseases requiring quarantine. Gibson, 290 F.3d at 1187-91; accord, e.g., Lolli v. Cty. of Orange, 351 F.3d 410, 420 (9th Cir. 2003); Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981). Defendants have violated, and continue to violate, these principles: the crucial tasks of screening incoming detainees and ensuring their access to necessary medication are performed by agents who lack any relevant training or supervision. In allowing this violation to continue, the panel committed two critical errors of law. A. Civil Detainees Need Not Demonstrate The Government’s Subjective
Awareness Of The Inadequacy Of Its Medical Care First, the panel failed to appreciate the distinct constitutional rights enjoyed by civil detainees. In faulting Plaintiffs for failing to provide evidence of Defendants’ subjective awareness of the risks posed by their current screening process, the panel erroneously applied the constitutional standard established for convicted prisoners. Prisoners are protected by the Eighth Amendment, and are entitled solely to the “minimal civilized measure of life’s necessities.” Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009). The Supreme Court has held that the denial of medical treatment contravenes the Eighth Amendment only if (1) there is a substantial risk
13

of serious harm, and (2) prison officials exhibited deliberate indifference to that risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “In other words, the official must demonstrate a subjective awareness of the risk of harm.” Conn v. City of Reno, 591 F.3d 1081, 1096 (9th Cir. 2010).
But the Constitution guarantees more favorable treatment to detainees who have not been convicted. Their rights are secured by the Due Process Clause, which “requires the government to do more than provide the ‘minimal civilized measure of life’s necessities.’” Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004). The government must ensure that pretrial detainees are not subjected to conditions that “amount to punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). This focus on “‘punishment’ does not mean that proof of subjective intent (or motive) to punish is required” for either pretrial or civil detainees (though such proof would suffice). Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). Instead, an objective standard governs: conditions unrelated to “legitimate governmental objectives,” or even excessively harsh in relation to such legitimate objectives, qualify as the “punishment” proscribed by the Constitution. Id. at 2474; Bell, 441 U.S. at 539 n.20.
At the time of this Court’s decision in Gibson, this distinction between the Eighth Amendment and Due Process standards was not entirely clear. Castro, 833 F.3d at 1068. For that reason, although Gibson involved a pretrial detainee, this
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Court assumed that the same “deliberate indifference” applicable to prisoners’ claims applied. 290 F.3d at 1187-88. It observed that Due Process “imposes, at a minimum, the same duty the Eighth Amendment imposes,” and that it need not “consider whether there are instances in which pretrial detainees, as opposed to convicted prisoners, may establish a constitutional violation without meeting the [Eighth Amendment] deliberate indifference standard.” Id. at 1187, 1188 n.9 (emphasis added). Gibson did not need to consider that issue because of the substantial evidence—relied upon by the panel opinion here in distinguishing Gibson (Op27-28)—demonstrating that the County defendant knew of, and consciously disregarded, the intolerable risks created by its inadequate medical screening. Gibson, 290 F.3d at 1191-92.
Since Gibson, both this Court and the Supreme Court have made clear that the sort of evidence Gibson assumed to be required is not, in fact, required. Specifically, in Kingsley v. Hendrickson, the Supreme Court held that “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” 135 S. Ct. at 2473-74 (emphasis added). As the en banc Court then recognized in Castro v. County of Los Angeles, “[u]nder Kingsley, a pretrial detainee need not prove th[e] subjective elements
15

about the officer’s actual awareness of the level of risk” required to prove an Eighth Amendment violation. 833 F.3d at 1071.
Yet the panel here faulted Plaintiffs for failing to make exactly the “subjective” showing these authorities establish is not required to prove a Due Process violation. The panel’s application of the Eighth Amendment standard is particularly misguided given that Plaintiffs are civil detainees and therefore entitled to even more “considerate treatment” than the pretrial criminal detainees that need only satisfy an objective standard. Jones, 393 F.3d at 932. Thus, it is irrelevant whether the Border Patrol was subjectively aware that its deficient medical screening process could or would harm the members of the plaintiff class; what matters is that this process is, in fact, deficient. Kingsley, 135 S. Ct. at 247374. En banc review is needed to clarify this important point. B. The Constitution Protects Detainees From The Risk Of Harm, Not Just
Already-Realized Harm The panel committed a second, equally significant, error in faulting Plaintiffs for failing to present evidence that Defendants’ inadequate screening had already caused “dire consequences.” Op29. As a matter of well-established law, a detainee need not show that the unreasonable risk to which the government has subjected him has already manifested itself in physical harm; instead, he may sue to prevent such “dire consequences” from coming to pass.
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Indeed, it is clear that even a convicted prisoner’s exposure to unreasonable risk violates the Constitution. In Helling v. McKinney, the Supreme Court expressly rejected the proposition “that only deliberate indifference to current serious health problems” of prison inmates is actionable, holding instead that the Eighth Amendment “protects against future harm to inmates.” 509 U.S. at 34. As the Court explained, an inmate could thus “successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery,” and prison officials could not escape liability for “the exposure of inmates to a serious, communicable disease on the grounds that the complaining inmate shows no serious current symptoms.” Id. at 33. This same principle applies a fortiori to detainees protected by the Due Process Clause. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
Plaintiffs here are exposed to such intolerable risks. As this Court has recognized, a failure to provide adequate medical screening at intake poses a constitutionally unacceptable “substantial risk of serious harm.” Gibson, 290 F.3d at 1189. Here, these risks have manifested themselves in a disproportionately low rate of hospital referrals (ER30), and numerous circumstances where medical treatment or medication has been delayed or denied. E.g., ER653-54 (agents withheld pregnant woman’s medication even while she “yelled from the pain” of dislocated ankle); ER616 (agent ignored plea for prescription medication needed to
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treat painful heart condition). That there have not yet been more serious consequences is a reason to be thankful, not a reason to turn a blind eye to this ongoing constitutional violation.
“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Helling, 509 U.S. at 33. The panel here has effectively countenanced just that. En banc review is needed to address this error and ensure that Plaintiffs do not continue to bear these unjustifiable risks. II. GOVERNMENT EXPENSE IS NOT AN ADEQUATE BASIS FOR
DENYING PRELIMINARY INJUNCTIVE RELIEF TO REMEDY CONSTITUTIONAL VIOLATIONS In affirming the district court’s refusal to grant Plaintiffs the beds and showers to which they are constitutionally entitled, the panel committed an equally fundamental error: it held that complete preliminary injunctive relief could be denied based on the costs the government would incur in fulfilling its constitutional obligations. In so doing, the panel created a rift in this Court’s jurisprudence that demands en banc review. Until the panel issued its opinion here, this Court’s precedent had made clear that financial concerns cannot justify continued unconstitutional conduct. As a threshold matter, whether the government has violated the Constitution cannot depend on such considerations. After all, it will always be easier (and cheaper) to
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deny detainees the various basic needs the Constitution guarantees. Accordingly— as this Court has repeatedly held—the government cannot justify such continuing deprivations by invoking fiscal concerns. See, e.g., Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (“Lack of resources is not a defense to a claim for prospective relief because prison officials may be compelled to expand the pool of existing resources in order to remedy continuing Eighth Amendment violations.”); Wright v. Rushen, 642 F.2d 1129, 1134 (9th Cir. 1981) (similar).
This Court had also held that financial concerns cannot justify a district court’s refusal to grant preliminary injunctive relief to address such constitutional violations. This Court has made clear that each of the preliminary injunction factors necessarily weighs in the plaintiffs’ favor when they seek to prevent the government’s ongoing refusal to respect their constitutional rights. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). This is true even when such a remedy will require the government to spend money: when the choice is “between financial concerns and preventable human suffering,” this Court has had “little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983) (“physical and emotional suffering” are “far more compelling than the possibility of some administrative inconvenience or monetary loss to the government”). Thus, this Court has held that the mere fact that an injunction will require the government to
19

expend “resources” or might create even “severe logistical difficulties” will not preclude preliminary relief where, as here, these difficulties “merely represent the burdens of complying” with the government’s legal obligations. Rodriguez v. Robbins, 715 F.3d 1127, 1146 (9th Cir. 2013).
But the panel—without explanation—has upended this precedent, allowing Defendants to shirk their obligations simply due to the costs of compliance. If not reviewed en banc, the panel opinion will thus generate substantial uncertainty, forcing district courts and panels of this Court to puzzle over when, exactly, a continued violation of the Constitution may be justified by mere expense. And courts will have increasing opportunities to confront that puzzle: given the panel’s opinion, government defendants will be likely to invoke this excuse whenever the Constitution requires some expenditure of funds.
Those most in need of relief—such as the Plaintiffs here—will bear the costs of the panel’s newly adopted rule. Here, it would undoubtedly require effort, and take time, for the government to provide the beds, mattresses and showers that the Constitution demands. Yet these are basic constitutional requirements that prisons, jails, and other detention facilities nationwide fulfill every day. The federal government should not be permitted to indefinitely postpone the date on which it provides class members with the minimal humane treatment to which they are constitutionally entitled.
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CONCLUSION The petition for rehearing or rehearing en banc should be granted.

Dated: February 5, 2018

Respectfully submitted,

LOUISE C. STOUPE PIETER S. DE GANON MORRISON & FOERSTER LLP Shin-Marunouchi Building, 29th Floor 5-1, Marunouchi 1-Chome Tokyo, Chiyoda-ku 100-6529, Japan Telephone: +81-3-3214-6522
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LINTON JOAQUIN KAREN C. TUMLIN NORA A. PRECIADO NATIONAL IMMIGRATION LAW CENTER Suite *108-62 3435 Wilshire Boulevard Los Angeles, CA 90010 Telephone: (213) 639-3900
KATHLEEN E. BRODY WILLIAM PEARD BRENDA MUÑOZ-FURNISH ACLU FOUNDATION OF ARIZONA

s/ James R. Sigel JAMES R. SIGEL ROBERT J. ESPOSITO ELIZABETH G. BALASSONE MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-6948 JSigel@mofo.com
DEANNE E. MAYNARD SOPHIA M. BRILL BRYAN J. LEITCH MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 887-8740
MARY A. KENNEY AARON REICHLIN-MELNICK AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7512
ELISA DELLA-PIANA BREE BERNWANGER LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA 131 Steuart Street, Suite 400 San Francisco, CA 94105 Telephone: (415) 543-9444

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3707 North 7th Street, Suite 235 Phoenix, AZ 85014 Telephone: (602) 650-1854 Counsel for Plaintiffs-Appellants Jane Doe #1, Jane Doe #2, and Norlan Flores
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE DOE, # 1; JANE DOE, # 2; NORLAN FLORES, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants/CrossAppellees,
v.

Nos. 17-15381 17-15383
D.C. No. 4:15-cv-00250-
DCB

JOHN F. KELLY, Secretary, United States Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner, United States Customs and Border Protection; RONALD VITIELLO, Chief, United States Border Patrol; JEFFREY SELF, Commander, Arizona Joint Field Command; PAUL BEESON, Chief Patrol Agent - Tucson Sector,
Defendants-Appellees/CrossAppellants.

OPINION

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Appeal from the United States District Court for the District of Arizona
David C. Bury, Senior District Judge, Presiding

Argued and Submitted October 16, 2017 San Francisco, California

Filed December 22, 2017

Before: Richard C. Tallman and Consuelo M. Callahan, Circuit Judges, and David A. Ezra,* District Judge.

Opinion by Judge Callahan

SUMMARY**

Civil Rights
The panel affirmed the district court’s preliminary injunction in an action brought by civil detainees confined in U.S. Customs and Border Protection facilities within the Tucson Sector of the U.S. Border Patrol who alleged they were subjected to inhumane and punitive treatment.
The district court granted a preliminary injunction requiring that defendants provide detainees with mats and

* The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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blankets after 12 hours. Defendants appealed, alleging that the district court misapprehended the standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979), and that the order was too rigid and burdensome. Plaintiffs also appealed, alleging that the district court should have ordered defendants to provide the detainees with beds and mattresses, allow them access to showers, and deliver adequate medical care through medical professionals.

The panel held that the district court carefully considered plaintiffs’ allegations of constitutional violations, recognized the guidance provided by the Supreme Court in Bell, and issued a limited preliminary injunction requiring defendants to provide detainees with mats and blankets after 12 hours. Defendants failed to show that, in doing so, the district court misapprehended Bell or that the preliminary injunction was overly rigid or burdensome.

The panel found unpersuasive plaintiffs’ assertions that the district court should have required defendants to provide detainees with beds, showers, and medical treatment provided by medical professionals. The panel held that the district court recognized the unique mission of the Border Patrol and, at least for the purposes of a preliminary injunction, reasonably balanced the government’s interests and the detainees’ constitutional rights.

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COUNSEL

James R. Sigel (argued), Robert J. Esposito, and Elizabeth G. Balassone, Morrison & Foerster LLP, San Francisco, California; Deanne E. Maynard, Sophia M. Brill, Bryan J. Leitch, and Lena H. Hughes, Morrison & Foerster LLP, Washington, D.C.; Louise C. Stoupe and Pieter S. de Ganon, Morrison & Foerster LLP, Tokyo, Japan; Colette Rainer Mayer, Morrison & Foerster LLP, Palo Alto, California; Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, California; Kathleen E. Brody, Daniel J. Pochoda, and Brenda Muñoz Furnish, ACLU Foundation of Arizona, Phoenix, Arizona; James J. Cekola, Morrison & Foerster LLP, San Diego, California; Mary A. Kenney, Melissa E. Crow, and Aaron Reichlin-Melnick, American Immigration Council, Washington, D.C.; Elisa Della-Piana and Megan Sallomi, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California; Abigail L. Colella, Morrison & Foerster LLP, New York, New York; for Plaintiffs-Appellants/Cross-Appellees.

Christina Parascandola (argued), Trial Attorney; Sarah B. Fabian, Senior Litigation Counsel; William C. Peachey, Director; Chad A. Readler, Acting Assistant Attorney General, Civil Division; Office of Immigration Litigation, District Court Section, United States Department of Justice, Washington, D.C.; for Defendants-Appellees/CrossAppellants.

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OPINION

CALLAHAN, Circuit Judge:

The influx of detainees in the Tucson Sector of the U.S. Border Patrol in 2015 resulted in Defendants (federal government officials and agents) holding detainees being processed for longer periods of time in overcrowded and unsanitary cells at eight different stations. Plaintiffs brought this action alleging inhumane and punitive treatment, and seeking injunctive relief. The district court granted a preliminary injunction requiring that Defendants provide detainees with mats and blankets after 12 hours. Defendants appeal, alleging that the district court misapprehended the standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979), and that the order was too rigid and burdensome. Plaintiffs also appeal, alleging that the district court should have ordered Defendants to provide the detainees with beds and mattresses, allow them access to showers, and deliver adequate medical care through medical professionals. We hold the district court did not abuse its discretion and properly applied precedent such that neither side has shown that the limited preliminary injunction is illogical, implausible, or without support in the record. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

I. BACKGROUND

Plaintiffs filed this action in the United States District Court for Arizona on behalf of detainees confined in U.S. Customs and Border Protection Facilities within the Tucson Sector of the U.S. Border Patrol. The Border Patrol’s mission is to detect and prevent the entry of certain individuals—including terrorists, unauthorized aliens, drug

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smugglers, and other criminals—into the United States between ports of entry. The Tucson Sector patrols 262 miles of the United States-Mexico border in southern Arizona, and, according to Defendants, in fiscal year 2016, “apprehended 64,891 individuals, the second highest of any Border Patrol sectors.” The number of individuals apprehended in the Tucson Sector varies widely. Defendants represent that between 2009 and 2016, apprehensions each month ranged “from a high of 31,432 in March 2009, to a low of 4,071 in July 2015.”

When a Border Patrol agent apprehends an individual, the person is taken to one of eight stations in the Tucson Sector. At the station, the Border Patrol processes the detainee, ascertaining the individual’s identity and immigration and criminal history. The individual is then repatriated, transferred into the custody of another agency, referred for prosecution in accordance with the law or, in rare circumstances, released.

Plaintiffs alleged that the conditions in the stations were deplorable and that it took up to three days for individuals to be processed before transfer. Plaintiffs alleged that:

detainees are packed into overcrowded and filthy holding cells, stripped of outer layers of clothing, and forced to endure brutally cold temperatures. They are denied beds, bedding, and sleep. They are deprived of basic sanitation and hygiene items like soap, sufficient toilet paper, sanitary napkins, diapers, and showers. And they are forced to go without adequate food, water, medicine, and medical care.

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In the fall of 2016, the district court certified the case as a class action. Plaintiffs then sought a preliminary injunction.

II. THE DISTRICT COURT’S ORDERS

A. The Standards for Reviewing Conditions of Confinement

After setting forth the appropriate standards for issuing a mandatory preliminary injunction, the district court considered the standards for reviewing conditions of confinement. It first noted that when the government takes a person into custody, it must provide for the person’s “basic human needs—e.g. food, clothing, shelter, medical care, and reasonable safety.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Citing Bell v. Wolfish, 441 U.S. 520, 535 (1979), among other cases, the district court concluded that when evaluating the constitutionality of pretrial detention conditions, it had to determine whether the conditions amounted to punishment. Citing Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir. 2004), the district court explained that “[t]o constitute punishment, the governmental action must cause harm or disability that either significantly exceeds or is independent of the inherent discomforts of confinement.” The court noted that even in the absence of evidence of express intent, it may infer an intent to punish “if the restriction or condition is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective.” See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008).

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The district court noted that the Supreme Court held that “[m]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted and pretrial detainees.” Bell, 441 U.S. at 546. Indeed, the Supreme Court commented that “in the absence of substantial evidence in the record to indicate that officials have exaggerated their responses to these conditions, courts should ordinarily defer to their expert judgment in such matters.” Id. at 540 n.23 (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).

Based on these cases, the district court opined that a condition of confinement “violates the Fifth and Fourteenth Amendments if it imposes some harm to the detainee that significantly exceeds or is independent of the inherent discomforts of confinement and is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective.” See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473–74 (2015). This led the court to reason that decisions defining the constitutional rights of prisoners establish a floor for Plaintiffs’ constitutional rights. See Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir. 2012). The district court concluded that it could presume Plaintiffs were being subjected to punishment “if they are confined in conditions identical to, similar to, or more restrictive than those under which the criminally convicted are held.” See Sharp v. Weston, 233 F.3d 1166, 1172–73 (9th Cir. 2000).

The district court then observed:

This is precisely the case here. Assistant Chief Patrol Agent for the Tucson Sector,

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George Allen, admitted, when this Court asked him to compare the conditions of confinement at Tucson Sector Border Patrol stations with those afforded criminal detainees at the Santa Cruz County jail, that in jail, detainees have a bed, with blankets, clean clothing, showers, toothbrushes and toothpaste, warm meals, and an opportunity for uninterrupted sleep. Likewise, the conditions of confinement . . . improve once they are transferred from Border Patrol holding cells to detention centers operated by the United States Marshals.

The district court recognized that, in assessing the constitutionality of the conditions of confinement in the Border Patrol stations, due consideration had to be given to the nature, purpose and duration of an individual’s time in the station. The stations are 24-hour operations where many detainees arrive in the evening and at night. The holding rooms are not designed for sleeping and have no beds. “Defendants assert[ed] that providing sleeping facilities and turning off lights would require structural changes at the facilities, create safety risks, and impede its purpose to provide 24-7 immigration processing.” Defendants explained that when a detainee arrives at a station, outer-clothing is removed for security reasons, and detainees are placed into group-holding rooms based on age, gender, family units, or suspected criminal status. Processing includes obtaining biographical information and biometrics, submitting this information through the e3Nex Generation Identification system to determine prior criminal and immigration arrests, preparing an arrest report, immigration processing, consular notifications, and communication with family members and

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attorneys as appropriate. Processing, if uninterrupted, absent any remarkable criminal or immigration history, takes between two and two and one-half hours.

But, there usually are interruptions. Discovery revealed that between June 10, 2015, and September 28, 2015, only about 3,000 of approximately 17,000 detainees were processed out of detention within 12 hours. About 8,644 detainees were held at a Border Patrol station up to 23 hours; 6,807 were held for up to 47 hours; 1,207 were held up to 71 hours; and 476 were held for 72 hours or more.

The district court accepted for purposes of the preliminary injunction that the Border Patrol’s 2008 Hold Rooms and Short Term Custody Policy (2008 Policy) and the National Standards on Transport, Escort, Detention and Search (TEDS standards) provided for constitutional conditions of confinement. Although Defendants assert that these guidelines establish the status quo, the district court found that Plaintiffs had presented persuasive evidence that the basic human needs of detainees were not being met by Defendants’ current practices.

B. Plaintiffs’ Specific Complaints

1. Sleeping. The district court recognized that other detention facilities must provide individuals held overnight with beds and mattresses, and, thus, the absence of either violates the detainees’ due process rights. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc); Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3rd Cir. 1986). The court noted that of the 16,992 detainees held between June 10

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and September 28, 2015, only 122 were recorded to have received a mat, and the others’ bedding needs were met with only a Mylar sheet/blanket. The court found that this was contrary to both the 2008 Policy and the TEDS standards. It further noted:

the harshness caused by the lack of mats and the inadequacy of the Mylar blankets is compounded by the Defendants’ practices of keeping holding-cells lights turned on 24-7, feeding one of the three regular hot meals to detainees at 4:00 a.m., moving detainees in and out of holding cells throughout the night for processing, overcrowding cells which causes people to lie cramped together and next to toilet facilities or to sit or stand up, and because the hard concrete floors and benches retain the cold caused by low thermostat temperatures and make it too hard and cold to sleep.

The district court found the holding cells to be spatially inadequate. The district court determined that “the holdingcell capacity numbers cannot accommodate the number of detainees being detained longer than twelve hours because detention of this duration requires them to lie down to sleep rather than sit up.”

Defendants’ expert opined that the Border Patrol facilities were on par with short-term holding cells typically used during the booking process in jail facilities. The district court rejected the comparison because the booking process at a jail facility usually takes hours, instead of days. The district court, however, accepted that the holding cells need to be

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illuminated for security. On the other hand, it found no security or administrative reason “to wake up detainees by scheduling one of the three burrito meals at 4:00 a.m.”

The court also found that the Mylar blankets do not provide insulation from the cold concrete, but merely prevent evaporation and retain 80% of body heat when wrapped around a person. In light of the sedentary nature of detention, the district court required that Defendants continue to monitor cell temperatures, which were maintained at temperatures between 71 and 74 degrees. The district court concluded that Defendants were violating Plaintiffs’ constitutional right to sleep, and ordered that Defendants provide detainees held for longer than 12 hours mats and Mylar blankets.

2. Sanitation. The district court explained that a sanitary environment is a basic human need that must be met by all penal institutions. See Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996). Plaintiffs’ expert opined that Defendants were not complying with their own standards, noting that: (a) all areas, including floors and toilets, were badly soiled; (b) hold rooms lacked trash receptacles; (c) toilet stalls lacked waste receptacles for sanitary napkins, diapers, and other bathroom waste; (d) cleaning supplies were not segregated from food storage; and (e) “cleaning crews did not appear to clean and sanitize common-touch points in detainee areas.” Although prison standards require one toilet for every 12 male prisoners and one toilet for every 8 female prisoners, in most cases the number of toilets in each holding room was inadequate. One large holding room with a capacity of 88 had one working toilet and one non-flushing toilet. Moreover, many toilets were combined sink/toilet fixtures with the sink fixture on top of the toilet creating a potential for contamination.

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Defendants responded that all but one holding cell are cleaned twice a day, and that they had begun placing trash receptacles in the holding cells. Defendants further asserted that soap had been made available to detainees upon request, and that, where water fountains were inoperable, water coolers had been placed in the cells.

The district court preliminarily ordered “compliance monitoring to ensure detainees have access to working toilets and sinks, soap, toilet paper, garbage receptacles, tooth brushes and toothpaste, feminine hygiene items, baby food, diapers and clean drinking water.”

The district court was also critical of the lack of shower facilities. It noted that a person who had been trudging across the Arizona desert would likely be dirty, but only two stations had shower facilities, and those were sparsely used, generally for detainees who were suspected of having scabies. Only 115 detainees out of the 16,992 held between June 10 and September 28, 2015 were given showers.

Addressing the lack of shower facilities, the district court noted that jail standards require access to showers and washbasins with hot and cold running water, with daily showers available. Defendants responded that the lack of showers was not a problem because most detainees are transferred within 72 hours and TEDS standards only require that reasonable efforts be made to provide showers for detainees approaching 72 hours of detention.

The district court was critical of Defendants’ failure to recognize the basic human need to wash during detention, but also noted that courts are extremely reluctant to find constitutional violations based on temporary deprivations of

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personal hygiene. Accordingly, the court preliminarily ruled that Defendants “need only provide some means or materials for washing and/or maintaining personal hygiene when detainees are held longer than 12 hours.”

3. Medical Care. The parties agreed that Defendants are constitutionally required to provide ready access to medical care, but disagreed on the contours of this right. Plaintiffs challenged the adequacy of Defendants’ intake screening, alleging that: (1) the screening is performed by Border Patrol agents, not doctors, nurses, or other specially trained personnel; (2) Defendants do not maintain a medical treatment program capable of responding to emergencies because they do not have medical staff on site; and (3) “the practice of confiscating incoming detainees’ medication creates impermissible and heightened risk that detainees will experience a medical emergency.”

Defendants responded that TEDS standards provide a system of ready access to adequate medical care. Before a detainee is placed in a hold room, an agent questions the individual and visually inspects for any sign of injury, illness, or physical or mental health concerns. Observed or reported injuries or illnesses are to be communicated to a supervisor and documented in the appropriate electronic system. Treatment plans and medication should accompany detainees when they are transferred or discharged. Defendants asserted they have personnel at the stations who can treat emergencies, and routinely transfer detainees to hospitals for emergency care.

Plaintiffs’ expert, however, claimed that there was no evidence of any formalized screening process being carried out by agents at the detention centers. The e3DM data system

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reflected around 527 incidents of medical treatment for approximately 17,000 detainees. The expert explained there are two components to screening: (1) immediate medical triage to determine whether there is any issue that would preclude acceptance into the facility, and (2) a more thorough medical and mental health screening. The expert was critical of the field screening because it was not done pursuant to any standardized protocol, and therefore did not adequately identify urgent or emergent health care needs or potentially communicable diseases.

The district court preliminarily required compliance with TEDS standards, “including measures to ensure the Medical Screening Form currently being used by Defendants at some stations is used in all stations, and that the form ask questions to ensure compliance with TEDS standards for screening and delivering medical care.”

C. Preliminary Injunctive Relief

Having held that Plaintiffs were likely to succeed on the merits, the district court considered the other criteria for issuing a preliminary injunction. It held that Plaintiffs were likely to suffer irreparable harm due to the deprivation of constitutional rights in the conditions of confinement, which cannot be adequately remedied through damages. The balance of equities and public interest favored relief, in part, because the “government suffers no harm from an injunction that merely ends unconstitutional practices and/or ensures that constitutional standards are implemented.” See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013). The district court concluded that Defendants “cannot sidestep reality by relying on the structural limitations of the Border Patrol detention facilities.” Rather, “[i]f detainees are held

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long enough to require them to sleep in these facilities, take regular meals, need showers, etc., then the Defendants must provide conditions of confinement to meet these human needs.” Although it found no evidence of intent to punish, the court found “no objectively reasonable relationship between 24-7 immigration processing or security and the conditions of confinement which Plaintiffs have preliminary shown exist in the Tucson Sector Border Patrol stations related to sleeping, sanitation, food, and medical care.”

The court ordered:

1. Clean bedding, which Defendants assert they are providing to all detainees, must include a mat and a Mylar blanket for all detainees being held longer than 12 hours.

2. Personal hygiene needs of detainees held longer than 12 hours include the need to wash or clean themselves.

3. Defendants shall implement the universal use of their Medical Screening Form at all stations and ensure that the form questions reflect the TEDS requirements for delivery of medical care to detainees.1

1 The district court further ordered that “Defendants shall monitor for compliance the following: availability of working sinks and toilets and/or other materials sufficient to meet the personal hygiene needs of detainees on a per cell per station basis; cell temperatures; cell sanitation and cleanliness; delivery to detainees of bedding, including mats, personal hygiene items such as toilet paper, toothbrushes and toothpaste, feminine hygiene items, baby food, diapers, and meals.”

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D. The January 3, 2017 Order

Defendants sought reconsideration and modification of the preliminary injunction. The motion outlined the Border Patrol’s compliance with the preliminary injunction. Detainees were being provided with mats, showers were being offered to some detainees and others were being given body wipes to clean themselves, all stations were provided with the current medical screening forms, and all stations had been instructed to monitor for compliance with TEDS standards for medical screening. Defendants, however, sought reconsideration asserting that: (a) allowing detainees to lie down to sleep had significantly reduced the holding cell capacity numbers, and had interfered with their ability to transfer individuals efficiently; (b) compliance had increased processing time; (c) compliance had added obstacles to Defendants’ compliance with the Prison Rape Elimination Act, which requires separating and monitoring vulnerable populations; and (d) compliance had resulted “in prosecutions forfeited for lack of timely presentment.”

The district court denied the request for reconsideration. It noted that providing detainees with mats and allowing them to lie down to sleep would always require that Defendants acquire more space. The district court was not persuaded by Defendants’ assertion that due to their 24-7 operational needs, they could not separate out detainees who approach 12 hour detentions. The court noted that it had seen empty cells adjacent to full cells and that Defendants admitted to separating out at-risk vulnerable population detainees. The court further stated that Defendants sought to suspend the 12hour limit “without offering any plan or time-line for full compliance,” and the court “cannot suspend what it believes are constitutional rights.”

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The district court did clarify its order. It explained that: (1) for detainees held more than 12 hours, “Defendants must provide bedding, including mats and Mylar blankets and some means to maintain personal hygiene;” (2) the court “did not order Defendants to provide showers;” and (3) “the 12hours begins to run from when the detainee arrives at the station.”2

III. ANALYSIS

A. Standard of Review

Plaintiffs are entitled to preliminary injunctive relief if they show: (1) likely success on the merits; (2) likely irreparable harm absent preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public’s interest. Pimental v. Dreyfus, 670 F.3d 1096, 1105–06 (9th Cir. 2012); Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). Under our “sliding scale” approach, a stronger showing of one element may offset a weaker showing of another, as long as plaintiffs “establish that irreparable harm is likely.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

A preliminary injunction should be set aside only if the district court “abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Puente Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th

2 Out of an abundance of caution, Defendants had initially calculated the 12 hours from the moment an individual was apprehended, rather than the individual’s “book-in to a station.” The clarification accommodated the Border Patrol’s concern that apprehensions often occur in remote areas long distances from their stations.

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Cir. 2016) (quotation omitted). Legal conclusions are reviewed de novo. Pimental, 670 F.3d at 1105. A district court “necessarily abuses its discretion when it bases its decision on an erroneous legal standard.” Harris v. Bd. of Supervisors of Los Angeles Cnty., 366 F.3d 754, 760 (9th Cir. 2004) (quoting Rucker v. Davis, 237 F.3d 1113, 1118 (9th Cir. 2001) (en banc), rev’d on other grounds, Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002).

If the district court identifies the correct legal standard, “it will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quotation omitted). Rather, the court only abuses its discretion when its application of the standard is “illogical, implausible, or without support in inferences that may be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

Furthermore, we have held that the district court has broad discretion to fashion remedies once constitutional violations are found. Hoptowit v. Ray, 682 F.2d 1237, 1245 (9th Cir. 1982), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).

B. The District Court Properly Read and Applied Bell v. Wolfish

On appeal, Defendants assert that the district court misinterpreted and misapplied Bell. They argue that the court disregarded the Supreme Court’s caution against courts becoming enmeshed in the minutiae of facility operations and

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“failed to take any meaningful account of the unique nature of detention at Border Patrol facilities.”

Defendants’ arguments are not well taken. The district court repeatedly cited Bell and recognized the Court’s admonition to defer to legitimate governmental objectives. However, the Supreme Court said much more. It set forth the standard for determining whether a condition of confinement was “imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” 441 U.S. at 538. The Court noted that a condition would not constitute punishment if it was “reasonably related to a legitimate governmental objective.” Id. at 539. But if a condition “is arbitrary or purposeless—a court permissibly may infer that the purpose of the government action is punishment that may not constitutionally be inflicted on detainees.” Id. The district court applied this standard.

At its core, Defendants’ objection that the district court “failed to take any meaningful account of the unique nature of detention at Border Patrol facilities” is not a challenge to the district court’s interpretation of Bell, but a disagreement with the application of Bell to the facts in this case. As such, Defendants must show an abuse of discretion—that the district court’s order “is illogical, implausible, or without support in inferences that may be drawn from the record.” Hinkson, 585 F.3d at 1262.

The record reveals that the district court sculptured the relief granted to reflect the unique features of Border Patrol stations and field operations. It did so by requiring only mats and Mylar blankets instead of beds and mattresses, by allowing body wipes for cleaning rather than showers, and by allowing non-medical personnel to medically screen

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detainees.3 The limited injunction reflects the district court’s careful consideration of the unique nature of Border Patrol stations in light of Bell.

The only aspect of the preliminary injunction that Defendants specifically challenge on appeal is the allegedly “rigid” requirement that they provide mats to all individuals detained for 12 hours or more. However, Defendants do not contest that detainees may sleep while in custody, or even that the 12-hour mandate might be workable in some cases. Rather, they argue that the rule “ignores the purpose of Border Patrol custody”; that it might be counterproductive if an individual arrives at the station in the middle of the night and is likely to be transferred in the afternoon; and, lacks a safety valve for a “surge” or other unforeseen situations.

These arguments are not persuasive. First, it is not unreasonable to infer that a person who has been detained in a station for over 12 hours (after having been awake for some period of time before his detention) has a right to lie down and rest, even in the middle of the day. Second, it is by no means clear that providing detainees with mats after 12 hours is more burdensome than providing them with mats at any other time.4 Third, there is little to no evidence that providing detainees with mats interferes with the Border Patrol’s identification and processing of individuals. Fourth, there is nothing in the record to suggest that Defendants ever sought

3 In addition, the district court allowed the lights in the holding cells to remain on all night. Plaintiffs do not challenge this on appeal.
4 At oral argument, Defendants’ counsel stated that detainees are presently being given a blanket and mat when initially admitted to a holding cell.

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“surge” protection from the district court. Indeed, the Motion for Clarification alleged that providing detainees with mats would reduce the holding cells’ capacities. It did not allege that providing mats was in itself burdensome or that there was some need for flexibility.

In light of the deference due the district court in fashioning preliminary relief, Hinkson, 585 F.3d at 1262, Defendants have not shown that the district court abused its discretion in granting the limited preliminary injunction.5

C. Plaintiffs Have Not Shown that the District Court Abused its Discretion in Issuing Only a Limited Preliminary Injunction

Plaintiffs have not shown that the district court’s application of the law concerning beds, showers, and medical care to the facts in this case is illogical, implausible, or “without support in inferences that may be drawn from the facts in the record.” Id.

5 Defendants’ concerns that the preliminary injunction is “a derogation of fundamental principles of national sovereignty” or may violate the Immigration and Nationality Act because courts are prohibited “from fashioning class wide injunctive relief that would enjoin or restrain the operation of the detention provisions of the Act,” overstates the situation and the law. “Plaintiffs do not seek to prevent Defendants from inspecting, apprehending, excluding, or removing aliens,” and do not “challenge the government’s power to detain individuals who are suspected of crossing the nation’s borders without proper authorization.” Defendants have offered no case law suggesting that constitutional obligations may not indirectly implicate the manner and means by which the government carries out its responsibilities at the border. See Rodriguez v. Hayes, 591 F.3d 1105, 1120–21 (9th Cir. 2010).

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1. Beds. Plaintiffs argue that detainees held overnight are entitled to beds and mattresses. See Thompson, 885 F.2d at 1448 (noting that “a jail’s failure to provide detainees with a mattress and bed or bunk runs afoul of the commands of the Fourteenth Amendment”). But given the unique purpose of Border Patrol stations and Defendants’ limited resources, the district court reasonably limited preliminary relief to mats and Mylar blankets. The purpose of the stations is to process the detainees as efficiently as possible so that they may be transferred to other facilities or released. Defendants assert that, absent the influx of detainees in 2015, processing a person should have taken two or three hours. Thus, were the stations operating as intended, there would never have been any need for a bed or a mat. Accordingly, the stations are not set up to accommodate beds. Defendants have neither the space for beds and mattresses, nor, presumably, beds and mattresses that might be immediately moved to the stations. Under these conditions, granting Plaintiffs the immediate preliminary relief of mats and Mylar blankets was reasonable. It provides Plaintiffs with actual relief without imposing a huge cost on Defendants to alleviate what might be a temporary need. Evidence as to whether the need was likely to continue would certainly be relevant to the district court’s determination of Plaintiffs’ request for a permanent injunction. However, the possibility of such evidence does not undermine the logic and reasonableness of the district court’s preliminary injunction, which provided immediate and effective, if limited, relief by requiring Defendants to provide mats and blankets.

2. Showers. Plaintiffs assert that detainees have a right of access to showers. See, e.g., Toussaint v. McCarthy, 597 F. Supp. 1388, 1399 (N.D. Cal. 1984) (holding that “minimum standards of decency require that lockup inmates

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without hot running water in their cells be accorded showers three times per week in facilities reasonably free of standing water, fungus, mold and mildew”), aff’d in part and rev’d in part by Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986). However, practical considerations support the district court’s grant of limited relief allowing Defendants to provide Plaintiffs with body wipes to maintain a minimal level of personal hygiene. Apparently, only two of the eight stations even have showers. Moreover, unlike body wipes (and mats and blankets), which can be efficiently distributed, providing showers for thousands of detainees raises substantial security and logistical concerns. Diverting Defendants’ limited human resources to provide detainees with showers would almost certainly slow down the processing of detainees, thereby encumbering Defendants’ primary mission.

Furthermore, although Plaintiffs have a right to hygiene, the Constitution does not requires access to a shower within 12 hours or even 24 hours. The district court in Toussaint, held that inmates were entitled to showers three times a week. 597 F. Supp. at 1399. But case law does not compel the conclusion that they have a constitutional right to a shower when detained for fewer than two days.

3. Medical Care. There is no question that detainees are entitled to “adequate medical care.” See Toussaint, 801 F.2d at 1112 (“If plaintiffs correctly contend that unqualified personnel regularly engage in medical practice, precedent indicates that the prison health care delivery system may reflect deliberate indifference to plaintiffs’ medical needs.”); Hoptowit, 682 F.2d at 1252 (“Medical staffing is inadequate. Medical services are provided by nurse practitioners or physician assistants (mid-level practitioners), rather than physicians.”); Gibson v. Cty. of Washoe, 290 F.3d 1175,

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1187–89 (9th Cir. 2002). However, Plaintiffs have failed to show that the district court’s determination is not a reasonable application of case law to the particular facts in this case. In particular, precedent allows considerable flexibility as to when and how constitutionally “adequate medical care” is provided.

The cases cited by Plaintiffs concern settings different from those at issue here, and do not hold that all medical screening must be done by medical professionals. First, Hoptowit concerned medical care at the Washington State Penitentiary. 682 F.2d at 1245. We agreed with the district court that the existing conditions violated the Eighth Amendment. Id. (“The Eighth Amendment requires that prison officials provide a system of ready access to adequate medical care.”). However, we held that remedies ordered by the district court were overbroad, and that “the court could go no farther than to bring the medical services up to the constitutional minima.” Id. Although prisoners must be able “to make their medical problems known to the medical staff,” the referrals may be to “facilities outside the prison if there is reasonably speedy access to these other physicians or facilities.” Id. We were particularly critical of the district court’s order that the penitentiary hire full time physicians, stating that the court must first determine that the penitentiary’s use of outside services “could not meet the constitutional minimum.” Id. at 1254.6

6 We explained:
The district judge could find that in-prison staff was necessary if he found that the State’s approach was necessarily inadequate. He made no findings, however, concerning the availability and adequacy of treatment outside the prison. It could well be that with improved

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Second, Toussaint concerned conditions of confinement at four California prisons. 801 F.2d at 1085. Health care at the Folsom Prison was only one of the issues the Ninth Circuit addressed. Id. at 1111–12. We recognized that denying prisoners medical attention may constitute a violation of the Eighth Amendment “if the denial amounts to deliberate indifference to serious medical needs of the prisoners.” Id. at 1111 (citation omitted). However, we remanded the plaintiffs’ claim that the defendants placed “an unconstitutional degree of reliance on MTAs [medical technical assistants], registered nurses (RNs) and inmate workers.” Id. We explained:

Defendants respond that MTAs, RNs and inmates are qualified to perform a number of services. If plaintiffs correctly contend that unqualified personnel regularly engage in medical practice, precedent indicates that the prison health care delivery system may reflect deliberate indifference to plaintiffs’ medical needs. Therefore, we must remand for entry

mid-level staffing in the prison, improved transportation, and an adequate plan for medical treatment in the community, the approach taken by the State would be constitutionally permissible. Before the district judge ordered the prison to hire in-house physicians and effectively scrap its approach to medical services, he should have first determined that this approach could not meet the constitutional minimum. Absent such a finding, the district court should have ordered the prison officials to improve the in-house staffing and procedures within the framework of the penitentiary’s approach to medical services.
Hoptowit, 682 F.2d at 1254.

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of explicit factual findings regarding the nature of services performed by MTAs, RNs, and inmates, their level of medical qualification, and the level of qualification required to adequately render the services that they perform.

Id. at 1111–12 (citation omitted). Thus, not all use of “unqualified” medical personnel is prohibited by the Constitution. Rather, Toussaint proscribes having “unqualified personnel regularly engage in medical practice.”

We find the third case cited by Plaintiffs, Gibson, to be so different from the case before us as to have little application. 290 F.3d 1175. Stephen Gibson, who suffered from manic depressive disorder, died of a heart attack while resisting being moved to a special watch cell in the county jail. Id. at 1181–83. His wife and children filed a § 1983 due process action against the Washoe County Sheriff’s Department alleging excessive force, deliberate indifference to Stephen’s serious mental health condition, and that the deputies’ actions resulted from the practices of the Sheriff’s Department. Id. at 1184. The district court granted summary judgment for the defendants. Id. at 1185. We reversed in part, holding that the County, but not the individual deputies, could be liable for deliberate indifference. Plaintiffs cite Gibson as establishing a right, at the intake stage, “to competent treatment encompass[ing] a right to prompt screening by medical staff, which is necessary to identify health emergencies, medication needs, and contagious diseases requiring quarantine.” Plaintiffs overlook that, in Gibson, we determined that the County’s potential liability for deliberate indifference was based on review of the County’s past practices and its

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policies.7 The record before us does not contain similar evidence of deliberate indifference by the Border Patrol to the detainees’ medical needs.

Moreover, while Plaintiffs are entitled to adequate medical care, our precedent does not require that all stages of medical care be provided by trained medical staff. Rather, our opinions in Hoptowit and Toussaint held that, before directing an agency to retain medical personnel, a court must first evaluate whether the government’s proposed plan adequately meets the detainees’ medical needs.

Defendants assert that Border Patrol agents have training as first responders, and that some have training as EMTs and Paramedics. They also represent that agents receive “training to identify communicable diseases and regularly interact with and observe detainees, and any detainee presenting any symptoms of such conditions is transferred to a hospital and provided medical care.”

The record does not indicate that the existing system of medical care, as directed by the district court, is inadequate. The most that Plaintiffs have shown is a low percentage of

7 We noted that it was the County’s policy that the jail’s medical unit be staffed 24 hours a day by licensed medical personnel and that when arrested, a person was to be medically screened. Gibson, 290 F.3d at 1183. For many years, the County “had employed . . . a full-time clinical mental health worker at the jail to perform mental health screening,” but at the time of Gibson’s death the County did not have a mental health worker “because of a soured relationship between the jail’s medical staff and the mental hospital.” Id. at 1184. We stated that “the record suggests that the County not only knew that it had to treat the mentally ill in order to avoid harm, but that it had made a practice of ignoring this need.” Id. at 1191.

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the detainees received medical treatment (3%), and a few incidents of inappropriate action.8 Indeed, there is no evidence of Defendants denying critical medical care to a detainee with dire consequences. As most detainees are released within a day or two, medical care may have been delayed, rather than denied.

In addition, Defendants assert that complying with TEDS standards should provide detainees with adequate access to their prescriptions because these standards provide for detainees’ medications to “be self-administered under the supervision of an officer/agent,” and both parties’ experts agreed that “referring a patient to the hospital to obtain a U.S. prescription” is acceptable.

Plaintiffs’ reply brief reveals little or no evidence of inadequate medical treatment of detainees. Plaintiffs question whether Border Patrol agents really receive training as first responders and note that very few have training as EMTs and Paramedics. This may be true, but says nothing about the adequacy of medical care currently delivered. Plaintiffs argue that it cannot be true that all medical issues are referred to the hospital when medical treatment is needed,

8 Plaintiffs relate instances where: (1) the agents withheld a pregnant woman’s medication even though she yelled in pain, and told her not to cry because she was just going to be deported; (2) a woman’s medication for an ovarian cyst was confiscated and withheld for the 12 hours she was detained; (3) the government confiscated a woman’s migraine-headache medicine after she turned herself in to the Border Patrol; and (4) the government ignored a man’s plea for the prescription medication he needed to treat a painful heart condition. Accepting that these actions were wrong, Plaintiffs have not shown that the errors were not corrected. Moreover, they are not sufficient to establish a practice or policy that requires preliminary injunctive relief.

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because only 527 out of 17,000 detainees were referred to the hospital. But this low number is not unreasonable given that over half of the detainees are processed in less than 24 hours. Plaintiffs also argue that Defendants overstate their expert’s claims concerning their ability to identify and treat communicable diseases. But this is not evidence that detainees with symptoms of a communicable disease are not identified, segregated, and treated, if necessary. Finally, Plaintiffs challenge whether the practice of confiscating medications at intake is an acceptable practice, and argue that hearsay declarations concerning Plaintiffs’ medication claims are admissible at a preliminary injunction hearing. Again, this is not evidence that Defendants have not provided, or will not provide, adequate medical care.

We do not question that Plaintiffs have real and substantial concerns with the adequacy of the medical care provided to detainees. Rather, we hold only that Plaintiffs have not shown that the district court abused its discretion in determining, as a preliminary matter, that Defendants, by complying with the TEDS standards, are providing adequate medical care. Plaintiffs have not carried their burden of showing that the district court’s decision is “illogical, implausible, or without support in inferences that may be drawn from the record.” Hinkson, 585 F.3d at 1262.

IV. CONCLUSION

This litigation arises out of the influx of detainees in the Tucson Sector of the U.S. Border Patrol in 2015. The district court carefully considered Plaintiffs’ allegations of constitutional violations, recognized the guidance provided by the Supreme Court in Bell, 441 U.S. 520, and issued a limited preliminary injunction requiring Defendants to

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provide detainees with mats and blankets after 12 hours. Defendants have failed to show that, in doing so, the district court misapprehended Bell or that the preliminary injunction is overly rigid or burdensome. We also find unpersuasive Plaintiffs’ assertions that the district court should have required Defendants to provide detainees with beds, showers, and medical treatment provided by medical professionals. Plaintiffs have not shown that the district court’s determinations were “illogical, implausible, or without support in inferences that may be drawn from the record.” Hinkson, 585 F.3d at 1262. The district court recognized the unique mission of the Border Patrol and, at least for the purposes of a preliminary injunction, reasonably balanced the government’s interests and the detainees’ constitutional rights. The district court’s orders are AFFIRMED.

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 5, 2018. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: February 5, 2018

s/ James Sigel James Sigel

CERTIFICATE OF COMPLIANCE WITH NINTH CIRCUIT RULE 40-1 I certify that pursuant to Circuit Rule 35-4 or 40-1, that attached petition for
rehearing contains 4,187 words (petitions and answers must not exceed 4,200 words), and is prepared in a format, type face, and type style that complies with Fed. R. App. P. 32(a)(4)-(6).

Dated: February 5, 2018

s/ James Sigel James Sigel

sf-3862766

 
 Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 1 of 11

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10

Plaintiffs,

ORDER

11 v.

12 Kirstjen M Nielsen, et al.,

13

Defendants.

14

15 Procedural History

16

On November 18, 2016, this Court issued a preliminary injunction in this class

17 action lawsuit brought by civil detainees, being held pursuant to civil immigration laws, 18 against Defendants the Secretary of the United States Department of Homeland Security, 19 the Commissioner of the United States Customs and Border Protection (CBP), the Chief

20 of CBP, and the Arizona Joint Field Command and Chief Patrol Agent-Tucson Sector. 21 This Court found that the Plaintiffs established they were likely to succeed on the merits 22 of their claims, were likely to suffer irreparable harm in the absence of preliminary relief,

23 that the balance of equities tipped in their favor, and the injunction was in the public 24 interest. The Court ordered the Defendants to immediately comply with CBP’s 2008 Hold 25 Rooms and Short Term Custody Policy (2008 Policy) and the National Standards on

26 Transport, Escort, Detention, and Search (TEDS) standards and that the standard requiring 27 clean bedding includes mats for detentions exceeding 12 hours.

28

Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 2 of 11

1

Both parties appealed. The Defendants argued that this Court misapprehended Bell

2 v. Wolfish, 441 U.S. 520 (1979) and the injunction was too rigid and unduly burdensome.

3 Plaintiffs argued that the Court should have required Defendants to provide beds with

4 mattresses, showers, and medical care provided by medical professionals. On March 21,

5 2018, the Ninth Circuit Court of Appeals affirmed the entry of the preliminary injunction.

6

There has been no assertion of non-compliance, therefore, this has been the status

7 quo since November 18, 2016. Discovery is closed, and Plaintiffs seek partial summary

8 judgment on the issue of beds.

9 Plaintiffs’ Motion for Partial Summary Judgment

10

According to Plaintiffs:

11

The U.S. Customs and Border Protection (“CBP”) detains tens of thousands

12

of people each year in the Tucson Sector and holds them in conditions that violate the Constitution. Men, women, and children are jammed together in

13

crowded hold room cells and forced to lie on soiled, cold concrete floors, next to toilets and trash. Surveillance video shows people being repeatedly

14

stepped over as others make their way to and from the toilets. These degrading and unsanitary conditions deprive Class Members of their

15

constitutional right to sleep.

16 (Ps MPSJ (Doc. 377) at 3.)

According to the Plaintiffs, “the law is clear: civil pretrial detainees must be

17

given beds or mattresses raised off of the floor if they are held for any period

18

requiring sleep. Anything less, including floor mats, is a violation of their Fifth

19

20 Amendment Due Process rights.” Id.

Providing mats has not remedied the sanitation and overcrowding concerns that

21

existed before the preliminary injunction because the mats are crammed together on the

22

same unsanitary floors, often encroaching into the toilet stall areas and without sufficient

23

24 walking space so that detainees are forced to walk on and over the floor mats. Id. at 4. The

Plaintiffs tender evidence that cell occupancy rates have been recalculated based on the use

25

of floor mats and submit pictures taken on December 24, 2016, showing a man stepping

26

27 over and on floor mats as he makes his way to the toilet area in a holding cell. Id. at Ex.

15, see also Ex. 21 (12/12/16 picture reflecting very crowded conditions causing mats to 28

be crammed together, walked on, and placed in toilet stall areas). Other pictures taken on

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 3 of 11

1 March 6, 2017, reflect an extremely crowded holding cell with at least one floor mat placed

2 inside a toilet stall. Id. at Ex. 20.

3

Plaintiffs tender statistics which reflect that from January 2015 through February

4 2018, the average length of detention in CBP stations was 26 hours broken down as

5 follows: 85.5% lasting longer than 12 hours, 43.6% lasting longer than 24 hours, 19.9%

6 lasting longer than 36 hours, and 8.3% lasting longer than 48 hours. (Ps’ MPSJ (Doc. 377)

7 at 5.)

8

Plaintiffs submit, it cannot be disputed that the 48-hour average time for processing

9 detainees at the CBP stations as a matter of necessity requires the vast majority of detainees

10 to lie down and sleep at these CBP stations. Likewise, Plaintiffs argue it is undisputed that

11 the use of floor mats in CBP stations has led to cramming as many mats on the floor as

12 possible forcing detainees to step on and over mats and to lie near toilets. Therefore,

13 Plaintiffs argue there are no disputed facts precluding partial summary judgment on their

14 claim that civil detainees are constitutionally entitled to beds for these detentions, which

15 span an amount of time in which sleep is necessary. According to the Plaintiffs, the use of

16 floor mats in CBP stations leads to conditions condemned in Union County Jail Inmates v.

17 Di Buono, 713 F.2d 984, 993 n. 11 (3rd Cir. 1983), as “reprehensible and dehumanizing.”

18 Id. at 997-998.

19

In addition to Union County Jail, Plaintiffs rely on Thompson v. City of Los Angeles,

20 885 F.2d 1439 (9th Cir. 1989), overruled on other grounds by Bull v. San Francisco, 595

21 F.3d 964, 977 (9th Cir. 2010); Anela v. City of Wildwood, 790 F.2d 1063 (3rd Cir. 1986),

22 and Lareau v. Manson, 651 F.2d 96, 105 (2nd Cir. 1981). This Court, likewise, relied on

23 these cases when it issued the preliminary injunction. See also (MPSJ (Doc. 377) at 8

24 (citing Vazquez v. Gray, 523 F. Supp. 1359 (S.D. N.Y. 1981), Stewart v. Gates, 450 F.

25 Supp. 583 (C.D. Calif. 1978), and Rutherford v. Pitchess, 457 F. Supp. 104 (C.D. Cal.

26 1978)).

27

In Thompson, the Ninth Circuit referenced these same cases and relied on Lareau,

28 where the Second Circuit held a prison’s use of floor mattresses for pretrial detainees was

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 4 of 11

1 unconstitutional without regard to the number of days of such confinement. In Thompson,

2 the court overruled the district court’s grant of summary judgment in favor of Los Angeles

3 County, finding Thompson stated a Fourteenth Amendment due process claim by alleging

4 he slept on the floor without a mattress for two nights in the county jail. The appellate

5 court relied on Rutherford, 457 F. Supp. at 109, an earlier district court case finding that

6 because of frequent overcrowded conditions in the same county jail inmates were often not

7 provided with a bed. The court held floor-sleeping was inconsistent with due process, and

8 the County was ordered to maintain the capability of providing each inmate with a bed.

9 Thompson, 885 F.2d at 1448 (citing Rutherford, 457 F. Supp at 109-110). In Thompson,

10 the Ninth Circuit presumed that the previously determined unconstitutional condition in

11 the form of a shortage of beds had gone unremedied since 1978 at the county jail. This

12 was enough to show floor sleeping in the county jail was a custom and practice, and the

13 appellate court reversed the summary judgment for the County and remanded the case,

14 giving the County the burden to show that it had remedied the bed shortage condition at

15 the county jail or that Thompson’s floor-sleeping was a relatively isolated occurrence.

16 Thompson, 885 F.2d at 1448-1449.

17

The Plaintiffs ask the Court to rule as a matter of law that the use of floor-mats in

18 CBP detention centers violates the Constitution. The law, best explained in Thomas v.

19 Baca, 514 F.Supp.2d 1201 (9th Cir. 2007), “suggests that the Ninth Circuit views floor-

20 sleeping, with or without a mattress, as offending ‘basic’ concepts of decency, as well as

21 reasonable respect for constitutional rights.’” Id. at 1216 (citing Thompson and

22 Rutherford).

23

In Thomas, the court found that requiring inmates to sleep on the floor deprives

24 them of a minimum measure of civilized treatment and access to life’s necessities because

25 “access to a bed is an integral part of the ‘adequate shelter’ mandated by the Eighth

26 Amendment.” Thomas, 514 F. Supp.2d at 1216 (quoting Johnson v. Lewis, 217 F.3d 726,

27 732 (9th Cir. 2000) (describing need for protection from the elements as need for such

28 things as blankets for warmth)). In Thomas, the Court found “[q]uite simply, that a custom

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 5 of 11

1 of leaving inmates nowhere to sleep but the floor constitutes cruel and unusual punishment

2 [as being] nothing short of self-evident.” Id.

3 Conclusion

4

The Court finds that the case law in the Ninth Circuit does not support Plaintiffs’

5 request for judgment as a matter of law on the question of floor-sleeping. First, the Thomas

6 court excluded processing time from its holding. “LASD facilities [shall] assign and

7 provide each inmate with a bunk for the night immediately following the inmate’s initial

8 processing within the facility or transfer to a medical center or other place of screening or

9 treatment, and for every night thereafter. Inmates must be processed within a reasonable

10 amount of time[,]” which should not take more than twenty-four hours. Id. at 1219. And,

11 Thomas recognized an exigent circumstance exception to the unconstitutionality of floor-

12 sleeping, including floor-sleeping during processing. Oliver v. Baca, ___ F.3d ___ , 2019

13 WL 166117 * 5 (9th Cir. January 11, 2019) (“A sudden, extreme rise in inmate population

14 caused by an acute event, such as a civil disturbance, may affect the length of time that is

15 reasonable for processing. However, overcrowding or regular classification considerations

16 do not constitute exigent circumstances that would justify floor-sleeping.”)

17

In Oliver v. Baca, the Court applied the exigent exception and found as a matter of

18 law there was no constitutional violation where a pretrial detainee was held without a bed

19 during a three-and-a-half day stay at a processing center because county jail facilities were

20 on lock-down due to county-wide prisoner disturbances. The Court afforded wide-ranging

21 deference to the institutional considerations leading to the limitation of constitutional rights

22 because officials were confronted with an emergency that threatened the safety and security

23 of its facilities, and the response to the security threats was reasonable in its scope and

24 effective in controlling the disturbances. Id. at *4-5.

25

The Ninth Circuit instructs that the Court should look at the circumstances, nature,

26 and duration of an alleged deprivation. Johnson v. Lewis, 217 F.2d 726, 731 (9th Cir. 2000).

27 This approach is explained by the Second Circuit in Darnell v. Pineiro, 849 F.3d 17 (2nd

28

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 6 of 11

1 Cir. 2018). See Turano v. County of Alameda, 2018 WL 5629341 *5 (N.D. Cal. Oct. 30,

2 2018) (finding Darnell persuasive).

3

In Turano the court applied Darnell to consider alleged holding cell conditions for

4 pretrial detainees that lasted for approximately 8.5 hours, including filthy cells covered in

5 garbage, feces and other bodily fluids, partially rotting food, strewed with used medical

6 supplies, and constructed entirely out of cinderblocks and being very cold where the

7 detainee was not provided with adequate clothing or a blanket. She could not obtain

8 menstrual pads causing her to bleed through her clothing and onto the concrete bench.

9 When she did obtain a menstrual pad, she had no access to soap and water or paper towels

10 to clean herself; she instead was forced to wash her hands in the drinking fountain, creating

11 an even more unsanitary environment. Id. The court held that the most egregious

12 deprivations, even if only lasting for temporary periods of just a few hours, can result in a

13 constitutional violation. “To find otherwise would permit defendants to subject pre-trial

14 detainees to the most appalling conditions without any repercussions, as long as it ‘only’

15 lasts for several hours.” Id.

16

Like the district court in Turano, this Court intends to follow the approach taken by

17 the Second Circuit in Darnell,1 which instructs that conditions of confinement cases should

18 be evaluated on a case-by-case basis according to severity and duration. Id. There is no

19 “static test” to determine whether a deprivation is sufficiently serious to violate the

20 constitution. The Court must instead evaluate the conditions themselves in light of

21

22

1 Likewise, the Court follows Bell v. Wolfish, 441 U.S. 520 (1979). (Order (Doc. 244) at 6-10.) A pretrial detainee’s claim is assessed under the Due Process Clause because they

23

have not been convicted of a crime and “may not be punished in any manner- neither cruelly and unusually nor otherwise.” As federal civil detainees, the Plaintiffs’ claims arise

24

under the Due Process Clause of the Fifth Amendment, but protections afforded by the Due Process Clause of the Fourteenth Amendment apply. The Court looks to Eighth

25

Amendment protections from cruel and unusual punishment because the detainee’s rights are at least as great as the those of convicted prisoners. Eighth Amendment requires

26

subjectively culpable state of mind where official knows of and disregards an excessive risk to inmate health or safety, id. n. 4 (applying Estate of Ford v. Ramirez-Palmer, 301

27

F.3d 1043, 1049 (9th Cir. 2002), Farmer v. Brennan, 511 U.S. 825, 837 (1994). Fourteenth Amendment claims must be evaluated under an objective deliberate indifference standard,

28

Gordon v. County of Orange, 888 F.3d 1118, 1124-35 (9th Cir. 2018) (applying Castro v. Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), Kinsley v. Hendrickson, 135 S. Ct.

2466 (2015).

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 7 of 11

1 contemporary standards of decency. Darnell, 849 F.3d at 30 (citing Blissett v. Coughlin,

2 66 F.3d 531, 537 (2d Cir. 1995); Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). In short,

3 the Court analyzes allegedly unconstitutional conditions of confinement in reference to

4 their severity and duration, not resulting injury -- which is merely one factor that may

5 suggest an unjustified infliction of harm compared to being plausibly necessary. Darnell,

6 849 F.3d at 30 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)), see also Martinez v.

7 Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (citing same).

8

Prisoners may not be deprived of their basic human needs—e.g., food, clothing,

9 shelter, sanitation, medical care, and reasonable safety. (Order (Doc. 244) at 7) (citing

10 Farmer v. Brennan, 511 U.S. 825, 832 (1994).

11

In Darnell, the court considered a temporary (between ten to 24 hours) holding

12 facility for recently arrested pretrial detainees awaiting arraignment. Detainees alleged

13 degrading conditions of confinement including: overcrowding, unusable toilets, garbage

14 and inadequate sanitation, infestation, lack of toiletries (toilet paper) and hygienic items

15 (menstrual pads), inadequate nutrition, extreme temperatures, poor ventilation, deprivation

16 of sleep, and crime and intimidation. Cells were so full, there was often only space to stand

17 for hours at a time and floors were so filthy that detainees could not lie on them. There

18 was no clean water and no usable toilets, which caused detainees to become dehydrated

19 and defecate in their clothes or use the toilet without paper to wipe themselves. Toilets

20 overflowed with excrement, leaving the surrounding floor and walls contaminated with

21 feces, urine, and vomit, and vermin like maggots, roaches, mice and other insects. The

22 stench was horrific. Darnell, 849 F.3d at 23-24.

23

The court rejected the argument that occasional and temporary deprivations of

24 sanitary and temperate conditions, without more, do not constitute a sufficiently serious

25 deprivation to constitute punishment. The court held that conditions when aggregated may

26 rise to the level of a constitutional violation, “‘but only when they have a mutually

27 enforcing effect that produces the deprivation of a single, identifiable human need such as

28 food, warmth, or exercise.’” Darnell, 849 F.3d at 30 (quoting Walker v. Schult, 717 F.3d

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 8 of 11

1 119, 125 (2nd Cir. 2013) (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)). In Darnell,

2 the court held that “[u]nsanitary conditions, especially when coupled with other mutually

3 enforcing conditions, such as poor ventilation and lack of hygienic items (in particular,

4 toilet paper), can rise to the level of an objective deprivation.” Id. (citing Walker, 717 F.3d

5 at 127–28) (collecting cases).

6

In Darnell, the nine challenged conditions of confinement were: 1) overcrowding;

7 2) unusable toilets; 3) garbage and inadequate sanitation; 4) infestation; 5) lack of toiletries

8 and other hygienic items; 6) inadequate nutrition; 7) extreme temperatures and poor

9 ventilation; 8) deprivation of sleep, and 9) crime and intimidation. The court explained

10 that, regardless of whether these challenged conditions related to a deprivation involving

11 sanitation or inadequate nutrition, each had to be measured by its severity and duration, not

12 the resulting injury, and none were subject to a bright-line durational or severity threshold.

13 Instead, the conditions were analyzed in combination, not in isolation, at least where one

14 alleged deprivation had a bearing on another. Darnell, 849 F.3d at 32 (citing Wilson, 501

15 U.S. at 304 (noting the synergy between cold temperatures and the failure to provide

16 blankets in establishing an Eighth Amendment violation)). For example, an overcrowded

17 cell may exacerbate the effect of unsanitary conditions; poor ventilation may be

18 particularly harmful when combined with an overflowing toilet, or inadequate nutrition

19 may be compounded by infestation. Id.

20

Here, the challenged conditions of confinement are: 1) sleeping; 2) sanitation; 3)

21 food, and 4) medical care. Sleeping on floor mats, coupled with overcrowding and

22 unsanitary floor conditions, may rise to the level of an objective deprivation of the

23 constitutional right to humane shelter, including sleeping conditions or sanitary conditions

24 of confinement when sleeping.

25

Like the Court in Darnell, this Court will look through the lens of severity and

26 duration to balance detainee conditions of confinement at CBP facilities in the Tucson

27 sector with the operational needs of the Tucson sector. The severity of the exposure to

28 sleeping on floor mats in overcrowded cells, coupled with the alleged lack of warmth, clean

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 9 of 11

1 clothes, showers, etc., may be less quantifiable than duration “‘but [] qualitative offense to

2 a [detainee’s] dignity will be given due consideration.’” Darnell, 849 F.3d at 31 (quoting

3 Willey v. Kirkpatrick, 801 F.3d 51, 68 (2ndh Cir. 2017)). Defendants are correct. This

4 fact-intensive inquiry cannot be made on the summary judgment record.

5

Plaintiffs cannot rely on Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) for partial

6 summary judgment because it only raises a rebuttable presumption that a lack of beds for

7 detainees at CBP stations is punitive. Plaintiffs are civil detainees awaiting civil

8 commitment; some may be awaiting criminal commitment. See (Reply (Doc. 359), Ex.

9 1: 11/15/16 Evidentiary Hearing George Allen, Assistant Chief Patrol Agent-Tucson

10 Sector, at 107 (describing detainees as including aggravated felons, criminal aliens,

11 people drug trafficking and trafficking human beings, and migrants)). In the Ninth

12 Circuit, the civil nature of the confinement puts an important gloss on the meaning of

13 punitive because a civil detainee is entitled to “more considerate treatment” than

14 criminally detained counterparts. Jones, 393 F.3d at 932 (citing Youngberg v. Romero,

15 457 U.S. 307, 321-22 (1982)).

16

It stands to reason, therefore, that individuals detained awaiting civil commitment

17 proceedings are entitled to Fourteenth Amendment protections at least as great as those

18 afforded civilly committed individuals and at least as great as those afforded to pretrial

19 detainees who are individuals accused but not convicted of a crime. Jones, 393 F.3d at

20 932. Conditions identical or similar to, or more restrictive than, those in which a criminal

21 counterpart is held raise a presumption of punishment. Id. Likewise, conditions of pre-

22 adjudication civil confinement substantially worse than conditions of confinement

23 imposed post-civil commitment, also, raise a presumption of punishment. Id. at 932-33.

24

Assuming the evidence at trial reflects the existence of alternative, less harsh

25 methods of detention are imposed upon commitment to either civil or criminal detention

26 facilities, both presumptions arise. Then, the Defendant must show why the conditions of

27 confinement at the CBP stations are not excessive. To do this, the Defendant must do

28 more than offer a bare assertion of a legitimate, non-punitive justification, such as:

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 10 of 11

1 ensuring a detainee’s presence at trial, maintaining jail security, and effective

2 management of a detention facility. Such assertions have been defeated by the

3 presumptions. To rebut the presumptions, the Defendant must establish that the

4 challenged condition of confinement is not excessive in relation to the purpose of the

5 Plaintiffs’ pre-commitment detention. For example, Defendants submit they detain

6 Plaintiffs at CBP stations to conduct 24-7 processing of detainees into receiving facilities

7 operated by ICE, Enforcement and Removal Operations (ERO) and the United States

8 Marshal. CBP processing takes between two and two and half hours without any

9 complications; it takes on an average of 48 hours before detainees are moved to receiving

10 facilities. (Order (Doc. 244) at 11-12.) At trial, the Defendants shall be afforded an

11 opportunity to rebut the presumptions that the conditions of confinement, including floor-

12 sleeping with or without floor mats, are punitive because they are not related to 24/7

13 detainee processing.

14

Recently, the Ninth Circuit applied both presumptions to a civil detainee held, pre-

15 commitment under the California Sexually Violent Predator (SVP) Act, in administrative

16 segregation with criminal detainees who were able to identify him as a sex-offender

17 because SVP detainees were required to wear red uniforms. King v. Los Angeles County,

18 885 F.3d 548 (2018). The court compared the criminal-like pre-commitment detention to

19 the treatment-like conditions he would find once committed to a facility under the SCP

20 Act. The Court noted that King’s pre-commitment confinement was especially harsh

21 because the red jumpsuit subjected him to threats and assaults by inmates for being a

22 child molester. Id. at 554-555. The court’s discussion of legitimate non-punitive

23 justifications was specific to the penological interests involved in King’s detention which

24 was that he was being held for commitment as a civil detainee in a treatment-type facility.

25 Within this context, the court assessed the severity and duration of the pre-commitment

26 conditions of confinement. Id. at 558. This brings the analysis full circle back to the fact

27 intensive inquiry that is necessary to determine whether the challenged conditions of

28 confinement amount to punishment. Id. at 557 (citing Bell, 441 U.S. at 536).

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Case 4:15-cv-00250-DCB Document 383 Filed 03/15/19 Page 11 of 11

1

The Court denies the Plaintiffs’ Motion for Partial Summary Judgment.

2

Accordingly,

3

IT IS ORDERED that the Plaintiffs’ Motion for Partial Summary Judgment (Doc.

4 377) is DENIED.

5

IT IS FURTHER ORDERED that the stay in this case is lifted.

6

IT IS FURTHER ORDERED that the parties shall jointly file Pretrial Order in

7 this case within 30 days of the filing date of this Order.

8

IT IS FURTHER ORDERED that, thereafter, the Court shall set a pretrial

9 conference; this case is ready for trial, and the trial date will be set at the pretrial conference.

10

Dated this 15th day of March, 2019.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 1 of 40

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10 11 v.

Plaintiffs,

FINDINGS OF FACT AND CONCLUSSIONS OF LAW

12 Kirstjen M Nielsen, et al.,

13

Defendants.

14

15

16

BACKGROUND

17

Plaintiffs filed this action on June 8, 2015, seeking injunctive relief related to

18 alleged inhumane and punitive treatment of civil immigration detainees by Customs and

19 Border Patrol (CBP) in the Tucson Sector at the Brian A. Terry Station/Naco Station,

20 Casa Grande Station, Douglas Station, Nogales Station, Sonoita Station, Tucson Station,

21 Why/Ajo Station, Willcox Station, and Three Points Station. The Tucson Station and

22 Three Points Station process detainees at the Tucson Coordination Center (TCC), which

23 serves as a hub for coordinating the movement of the majority of detainees out of CBP

24 custody. Plaintiffs charge the Defendants with violating the Due Process Clause of the

25 Fifth Amendment based on alleged deprivations of sleep, of hygienic and sanitary

26 conditions, of adequate medical screening and care, of providing inadequate food and

27 water, and of a lack of warmth in CBP holding cells. (Doc. 1 ¶¶ 184-218.) The case is a

28 class action lawsuit. (Order (Doc. 117)).

Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 2 of 40

1

Following a seven-day trial, the Court grants Plaintiffs’ request for a Permanent

2 Injunction because CBP’s mission is to arrest, process, and turn detainees over to United

3 States Immigration and Customs Enforcement (ICE), Office of Enforcement and

4 Removal Operations (ERO), the Office of Refugee Resettlement (ORR); the United

5 States Marshals Service; or another agency (OA), as appropriate. CBP stations and

6 holding facilities are designed within the context of this mission for short-term holds,

7 lasting hours not days. There is no legitimate governmental interest to hold detainees

8 longer than the time needed to complete this mission.

9

The evidence reflects that the extended detentions currently occurring at CBP

10 facilities are, in large part, caused when receiving agencies, including ICE, ERO, ORR,

11 the United States Marshals, and other agencies, are unable, usually due to capacity

12 constraints, to accept CBP transfers. The Plaintiffs, who are civil detainees in CBP

13 holding cells, face conditions of confinement after 12 hours which are substantially worse

14 than detainees face upon commitment to either a civil immigration detention facility or

15 even a criminal detention facility, like a jail or prison. The Court finds that the conditions

16 of detention in CBP holding cells, especially those that preclude sleep over several

17 nights, are presumptively punitive and violate the Constitution. The Defendants have

18 overcome this presumption to a limited extent, and the Court limits its injunctive relief,

19 accordingly. CBP shall be enjoined from holding detainees, who are “processing

20 complete,” i.e., meaning the detainee has been processed by CBP and the appropriate

21 receiving agency has been identified, longer than 48 hours from book-in time. Detention

22 may not extend into a third night under the “no longer than 48 hours” rule, unless and

23 until CBP can provide conditions of confinement that meet detainees’ basic human needs

24 for sleeping in a bed with a blanket, a shower,1 food that meets acceptable dietary

25 standards, potable water, and medical assessment performed by a medical professional.

26

27

28

1 A shower is a bath in which water is showered (as in to wet with a spray, fine stream, or drops) on the body. Webster’s Dictionary (1979). A “paper-shower” or “shower-wipe, by

definition, is not a shower.

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 3 of 40

1

The Court shall afford the parties an opportunity to be heard regarding any express

2 terms necessary for the effectuation of the Permanent Injunction not contained herein.

3

A. Conditions of Confinement and Civil Detainees

4

““When the State takes a person into custody and holds him there against his will,

5 the Constitution imposes upon it a corresponding duty to assume some responsibility for

6 his safety and general well-being: Under this rationale, the State must provide for a

7 detainee’s ‘basic human needs—e.g., food, clothing, shelter, medical care, and reasonable

8 safety—.’” (Order (Doc. 244) at 6 (quoting DeShaney v. Winnebago Cty. Dep’t of Soc.

9 Servs., 489 U.S. 189, 199-200 (1989)). “‘The more basic the particular need, the shorter

10 the time it can be withheld.’” Id. at 20 (quoting Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th

11 Cir. 1982)). Less critical needs may be denied for reasonable periods of time when

12 warranted by exceptional circumstances such as an emergency or disciplinary need. Id.

13 (citing Hoptowit citing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)). The Court’s

14 task is to “determine whether a challenged punishment comports with human dignity,”

15 Furman v. Georgia, 408 U.S. 238, 282 (1972) (BRENNAN, J., concurring), and the Court

16 must carefully scrutinize the challenged conditions and application of realistic yet humane

17 standards, Rhodes v. Chapman, 452 U.S. 337, 361 (1981).

18

It is undisputed that CBP holds the Plaintiffs as civil detainees, pursuant to civil

19 immigration laws.2 “Pretrial detainees cannot be punished because they have not yet been

20 convicted,” Lynch v. Baxley, 744 F.2d 1452, 1461 (9th Cir. 1984) (citing Bell v. Wolfish,

21 441 U.S. 520 (1979); “[civil] detainees cannot be subjected to conditions of confinement

22 substantially worse than they would face upon commitment,” Lynch, 744 F.2d at 1461.

23

As civil detainees, Plaintiffs are protected under the Fifth Amendment from being

24 2 “Plaintiffs are civil detainees awaiting civil commitment; some may be awaiting criminal

25

commitment.” (Order (Doc. 383) at 9 (citing (Reply (Doc. 359), Ex. 1: 11/15/16 Evidentiary Hearing George Allen, Assistant Chief Patrol Agent-Tucson Sector at 107)).

26

According to Defendants, the Plaintiffs are detained as civil detainees pursuant to 8 U.S.C.A. § 1225 (an alien arriving at the United States border is deemed to be an applicant

27

for admission, subject to being determined inadmissible and subject to removal); § 1226 (detention pending a decision on whether the alien is to be removed); § 1231 (subsequent

28

to an order of removal, an alien is detained pending deportation), and § 1252 (detention as a result of expedited removal proceedings). (Ds’ Proposed Findings of Facts (Doc. 441) ¶

12.)

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 4 of 40

1 held without due process of law under conditions that amount to punishment. Wong Wing

2 v. United States, 163 U.S. 228, 237 (1896). The Eighth Amendment’s prohibition against

3 cruel and unusual punishment requires prison officials to provide humane conditions of

4 confinement, including adequate food, clothing, shelter, sanitation, and medical care, and

5 take reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511

6 U.S. 825, 832 (1994). Under the Eighth Amendment, a prison official must act with

7 deliberate indifference to an inmate’s health or safety. Id. at 834. Therefore, conditions of

8 confinement that violate the Eighth Amendment will necessarily violate the Fifth

9 Amendment.

10

Because Plaintiffs are civil detainees and not prisoners, the Fifth Amendment,

11 mirrored by the Fourteenth Amendment Due Process Clause,3 apply; both protect a non-

12 convicted detainee from punishment prior to an adjudication of guilt. Bell v. Wolfish, 441

13 U.S. 520, 534–35 (1979). “‘This standard differs significantly from the standard relevant

14 to convicted prisoners, who may be subject to punishment so long as it does not violate the

15 Eighth Amendment’s bar against cruel and unusual punishment.’” (Order (Doc. 244) at 7

16 (quoting Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008)). Fourteenth

17 Amendment due process claims are evaluated under an objective deliberate indifference

18 standard. Gordon v. County of Orange, 888 F.3d 1118, 1124-35 (9th Cir. 2018) (applying

19 Castro v. Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), Kinsley v. Hendrickson,

20 135 S. Ct. 2466 (2015). The “more protective” Fourteenth Amendment standard requires

21 more than minimal necessities, Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004),4 but

22 does not require conditions of confinement free from discomfort, Bell, 441 U.S. at 537.

23 “[D]ue process requires that the nature and duration of commitment bear some reasonable

24 relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406

25 3 The Due Process Clause of the Fourteenth Amendment bars any State from depriving any

26

person of rights secured under the Bill of Rights (the first eight amendments). Therefore, the Court relies equally on cases applying the Fourteenth and Fifth Amendment Due

27

Process Clauses. 4 Overruled in part by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (holding

28

monetary damages as a retroactive remedy is unavailable against an official capacity defendant who lacks authority over budgeting decisions, but may factor into assessing

subjective intent for deliberate indifference analysis in Eighth Amendment case).

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 5 of 40

1 U.S. 715, 738, (1972). The Court evaluates the conditions in light of contemporary

2 standards of decency “in reference to their severity and duration,” with any “resulting

3 injury being merely one factor that may suggest an unjustified infliction of harm compared

4 to being plausibly necessary.” (Order (Doc. 383) at 6-7 (citing Darnell v. Pineiro, 849 F.3d

5 17, 30 (2ndh Cir. 2018) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)), see also

6 Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (citing same).

7

To evaluate the constitutionality of a pretrial detention condition under the Fifth

8 Amendment, a district court must determine whether those conditions amount to

9 punishment of the detainee. Bell, 441 U.S. at 535; Pierce, 526 F.3d at 1205; Demery v.

10 Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004). In the absence of evidence of express intent,

11 a court may infer that the purpose of a particular restriction or condition is punishment if

12 the restriction or condition is not reasonably related to a legitimate governmental

13 objective or is excessive in relation to the legitimate governmental objective. Pierce, 526

14 F.3d at 1205 (citing Bell, 441 U.S. at 539); Demery, 378 F.3d at 1028 (citing Bell, 441 at

15 538). There is no evidence in this case of any intent by CBP to create punitive conditions

16 of confinement. The evidence reflects that CBP has stretched existing resources to

17 provide the best conditions of confinement available under the circumstances. A

18 presumption, however, exists that the challenged conditions of confinement are punitive

19 because in the context of CBP operations, there is no legitimate governmental interest for

20 the extended detentions currently occurring at CBP facilities, and the Plaintiffs, who are

21 civil detainees, face conditions of confinement in CBP stations, Tucson Sector, which are

22 more restrictive than they will face upon commitment to either a civil or criminal

23 detention facility. The Ninth Circuit recognizes an exigent circumstances exception for

24 constitutional violations, but this is a narrow exception Oliver v. Baca, 913 F.3d 852, 858

25 (9th Cir. 2019) and does not apply here because by all accounts the detainee

26 demographics currently existing in the Tucson Sector have existed since at least 2015 and

27 are expected to continue into the future.

28

In considering assertions of legitimate governmental objectives and interests,

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 6 of 40

1 “maintaining institutional security and preserving internal order and discipline are essential

2 goals that may require limitation or retraction of the retained constitutional rights of both

3 convicted prisoners and pretrial detainees.” Bell, 441 U.S. at 546; Pierce, 526 F.3d at 1205.

4 In the absence of substantial evidence that indicates officials have exaggerated their

5 responses, courts should ordinarily defer to the expert judgment of correction officials to

6 determine whether detention restrictions or conditions are reasonably related to

7 maintaining security and order and operating the institution in a manageable fashion. Bell,

8 441 U.S. at 540 n. 23. The government does not need to show an “exact fit” or proof that

9 the policy in fact advances the legitimate governmental objective, or even that it is the

10 “least restrictive alternative.” Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002).

11 The correction official must have reasonably thought that the policy would advance a

12 legitimate governmental objective. Id. Such legitimate non-punitive justifications must,

13 however, be specific to the penological interests involved in the Plaintiffs’ detention, which

14 here is for commitment as civil detainees in immigration-type civil facilities. (Order (Doc.

15 383) at 10 (citing King v. Los Angeles County, 885 F.3d 548, 554-555 (9th Cir. 2018)).

16

In summary, a condition of confinement for an inmate who has not been convicted

17 violates the Fifth and Fourteenth Amendments if it imposes some harm to the detainee that

18 significantly exceeds or is independent of the inherent discomforts of confinement and is

19 not reasonably related to a legitimate governmental objective or is excessive in relation to

20 the legitimate governmental objective. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74

21 (2015). Under the Fourteenth Amendment, the Court makes an objective assessment

22 whether there is a reasonable relationship between the government’s conduct and a

23 legitimate purpose. Id. at 2469. The civil nature of Plaintiffs’ confinement provides an

24 important gloss on the meaning of “punitive”; Plaintiffs must be afforded “more

25 considerate treatment” than even pretrial detainees, who are being criminally detained prior

26 to trial. Cf. Estelle v. Gamble, 429 U.S. 97, 104, (1976); Youngberg v. Romeo, 457 U.S.

27 307, 321–22, (1982). Constitutional rights in respect to conditions of confinement for

28 prisoners establish a floor for the constitutional rights of the Plaintiffs. Padilla v. Yoo, 678

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 7 of 40

1 F.3d 748, 759 (9th Cir. 2012) (citations omitted). The Court must presume detainees are

2 subjected to punishment if they are confined in conditions identical to, similar to, or more

3 restrictive than those under which the criminally convicted are held. See Sharp v. Weston,

4 233 F.3d 1166, 1172–73(9th Cir. 2000) (finding that Youngberg required that individuals

5 civilly confined at a commitment center receive “more considerate” treatment than inmates

6 at the correctional center in which the commitment center was located).

7

The evidence is undisputed that conditions of confinement at Tucson Sector CBP

8 stations are substantially worse than conditions afforded criminal detainees at the Santa

9 Cruz County jail or other jail facilities, where detainees are medically screened by medical

10 professionals; have a bed with cloth sheets, blankets, and pillows, and an opportunity for

11 uninterrupted sleep; have clean clothing, including second layers for warmth; showers,

12 toothbrushes and toothpaste, and warm meals with a variety of food choices, including

13 fruits and vegetables, accommodating food allergies and religious beliefs. Likewise, the

14 conditions of confinement for civil immigration detainees similarly improve once they are

15 transferred from CBP holding cells to detention centers operated by the United States

16 Marshals, ICE, ERO, Health and Human Services (HHS), and other immigration detention

17 agencies and organization. Accordingly, there is a presumption that the conditions of

18 extended confinement at the Tucson Sector stations violate the Plaintiffs’ constitutional

19 rights.

20

When the Court denied the Plaintiffs’ Motion for Summary Judgment, it held that

21 the Defendants had to be afforded an opportunity at trial to rebut the presumption that the

22 challenged conditions of confinement are punitive by presenting evidence that the severity

23 and duration of the conditions of confinement are rationally related to the CBP’s

24 interdiction mission. (Order (Doc. 383) at 5-11.)

25

B. Conditions of Confinement under the Preliminary Injunction

26

On November 18, 2016, when the Court issued the preliminary injunction, the Court

27 considered the constitutionality of the conditions of confinement given the nature, purpose,

28 and duration, of the detainees’ time in a CBP station. The Court found: “Border Patrol

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 8 of 40

1 stations are twenty-four-hour operations, and in fact a significant number of individuals

2 who are detained in Border Patrol stations are apprehended during the evening and night-

3 time hours.” (Order (Doc. 244) at 11.) Defendants then described the following:

4

Border Patrol processing begins in the field, but on arrival at the detention

facility intake begins in the “sally port” where detainees’ outer-clothing is

5

removed for security reasons, leaving detainees without sweatshirts, jackets,

or second layers of clothing for warmth. Detainees are placed into group-

6

holding rooms based on age, gender, family units, or criminal suspects.

Processing consists of obtaining biographical information and biometrics

7

and submitting this information through the e3Nex Generation

Identification system to determine prior criminal and immigration arrests.

8

Fully processing a detainee includes preparing an arrest report, immigration

processing, service of immigration forms, consular notifications, and

9

communication with family members and attorneys as appropriate. If

uninterrupted and if there is no remarkable criminal or immigration history,

10

processing would take between two and two and one-half hours.

11 (Order (Doc. 244) at 11 (citations to the record omitted.) The evidence reflected that there

12 were, however, interruptions “caused by a large number of prior apprehensions and the

13 criminal background of the detainees awaiting processing, the need to dispense meals,

14 medical or health care, to arrange consular communications, phone calls to family members

15 or attorneys, to conduct investigations, and computer system outages.” Id. The evidence

16 also revealed “that detention in Border Patrol holding rooms is also extended because of

17 delays by the receiving agencies ICE, ERO, and the United States Marshal in accepting the

18 Border Patrol transfers.” Id.

19

The Court summarized: “between June 10, 2015 and September 28, 2015, only

20 about 3,000 of approximately 17,000 detainees were processed out of CBP station

21 detention within 12 hours: [o]f these 17,000 detainees, 8,644 people were held at CBP

22 stations up to 23 hours, 6,807 were held up to 47 hours, 1,207 were held up to 71 hours,

23 and 476 were held for 72 hours or more.” Id. at 12. The expert testimony at the evidentiary

24 hearing for the preliminary injunction was: “CBP tries diligently to process detainees

25 promptly, and generally does so within 24 hours,” id. (quoting Skipworth Decl. ¶ 154));

26 “nearly all detainees were processed within 48 hours,” id. (quoting Bryce Decl. ¶ 38.) The

27 Court understood this evidence in the context of processing to mean the transfer of

28 detainees by CBP to receiving agencies, ICE, ERO, the United States Marshals.

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 9 of 40

1

The Court found the Plaintiffs were likely to prevail on the constitutional claims

2 related to alleged cell conditions as follows: overcrowding, with concrete hard and cold

3 floors and bench surfaces, cold temperatures, no blankets or mats, precluding sleeping;

4 unsanitary cell conditions, with lack of waste receptacles and insufficient housekeeping,

5 lack of personal hygiene products and showers, insufficient food and lack of potable water.

6 The Court was concerned about the lack of a universal medical questionnaire designed by

7 medical professionals for use by CBP agents, especially because medical screening was

8 being performed by agents without any medical training.

9

The Court ordered full and immediate compliance “with CBP’s 2008 Hold Rooms

10 and Short-Term Custody Policy (2008 Policy) and the National Standards on Transport,

11 Escort, Detention, and Search (TEDS) standards and that the standard requiring clean

12 bedding includes mats for detentions exceeding 12 hours.” (Order (Doc. 383) at 1.) The

13 Court clarified that 12 hours begins to run when a detainee is booked-in at a station, not

14 when he or she is detained in the field. After 12 hours of detention, CBP must provide

15 bedding, including a sleeping mat and Mylar blanket, and showers or a body-wipe where

16 showers were not available. The Court reasoned that conditions of confinement in the field

17 and for the first 12 hours of detention at the Station were rationally related to the CBP’s

18 24-7 operations and governmental interests, including: interdiction, arrest, detention and

19 processing. The Court reasoned that Defendants could not side-step the reality that over

20 half the detainees were being held longer than 12 hours and, therefore, physiologically had

21 the human need to lie down and sleep. (Order (Doc. 244) at 12-17, 27-28.) For purposes of

22 granting the permanent injunction the Court affirms these findings.

23

The Court adds to the 12-hour sleeping mat requirement, that floor mat-sleeping is

24 only acceptable outside the toilet areas of the holding cells. The Court understands that

25 holding cell design and floor sleeping, with mats, creates capacity issues, but the alternative

26 of detainees lying directly on cold floors, covered only by Mylar sheets does not resolve

27 the capacity issues caused by sleeping in holding cells. The capacity issues are not caused

28 by the sleeping mats; the capacity issues are caused by holding cell designs that do not

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 10 of 40

1 accommodate sleeping, with or without a mat. Prior to sleeping mats, detainees were

2 sleeping directly on the floor in the toilet areas of the holding cells when cells were

3 overcrowded. Regardless of whether a detainee is sleeping on a mat or directly on the

4 concrete floor, being forced to sleep in a toilet area due to overcrowding offends the notions

5 of common decency; it is unsanitary and degrading for all detainees who either have to

6 sleep in the toilet area or try to use the toilet when others are sleeping there. Regardless of

7 the duration of overcrowding, CBP is enjoined from overcrowding holding cells to the

8 extent that detainees are sleeping on the floor in toilet areas of the holding cells.

9

C. Purpose of Plaintiffs’ Pre-commitment Detention by CBP

10

Under both the Fifth Amendment and the Fourteenth Amendment Due Process

11 Clause, the Court must consider the penological interests of the pre-commitment conditions

12 of confinement, i.e., the purpose of the detention. For purposes of issuing the permanent

13 injunction, the Court considers legitimate non-punitive justifications specific to the

14 penological interests involved in detaining the Plaintiffs for commitment as civil detainees

15 in immigration-detention type facilities, not prisons. In the context of such civil detention,

16 the Tucson Sector is part of CBP and responsible for: “[f]undamentally securing our

17 nation’s borders, operating in between the ports of entry to ensure that illicit narcotics,

18 contraband, undocumented aliens, terrorists and [] don’t enter the United States.” (TR

19 1/15/2020 (Day 3) (Doc. 471): Defraitas at 30) at 30.) Hold-room detentions beyond the

20 time needed for CBP to process a detainee for transport to a receiving agency, like ICE,

21 ERO, or the United States Marshals, are not related to the CBP’s interdiction mission.

22

The Court, based on the Finding of Facts and Conclusions of Law set out below,

23 grants Plaintiffs a permanent injunction enjoining Defendant CBP, Tucson Sector, from

24 detaining individuals under existing conditions for periods of time unrelated to the CBP

25 mission to interdict, process and transport detainees to receiving agencies ICE, ERO,

26 HHS, United States Marshals, and others. The injunction issues because CBP operations

27 and facilities are not designed to meet a detainees’ basic human needs, including

28 sleeping, warmth, food, water, personal hygiene, and medical care for extended periods

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 11 of 40

1 of time. The evidence reflects that CBP processing, generally, takes between a couple of

2 hours and 12 hours and may involve at least one night-time detention in a CBP holding

3 cell due to: 1) processing when an arrest occurs at night or in the evening or 2)

4 transportation to a receiving agency cannot occur at night because the receiving agency

5 does not have 24 hour operations, i.e., it is closed at night, or because Mexico will not

6 receive detainees for repatriation at night or because judicial operations are closed at

7 night and on weekends and holidays.5 The logistics of being unable to transport detainees

8 to receiving agencies at night extend the time necessary for CBP to process and transfer a

9 detainee for approximately 12 hours during the night-time detention. To accommodate

10 the logistics of night-time precluded transportation operations, the Court adopts a “no

11 longer than 48-hours” rule based on the finding that detentions beyond 48 hours are,

12 generally, not related to CBP operations. Detentions longer than 48 hours for detainees

13 who have been designated “processing complete” are because receiving agencies fail to

14 green-light the CBP detainee transfers. This forces CBP to step into the ill-fitting shoes of

15 a detention facility and perform the detention responsibilities of such agencies as ICE,

16 ERO, ORR, HHS, and other civil immigration detention agencies. It is undisputed that all

17 of the receiving agencies afford detainees a bed, with real cloth sheets, blankets, and

18 pillows, provide warmth by dispensing second layers of clothing, have shower facilities,

19 offer hot meals prepared pursuant to professional dietary standards, have clean potable

20 water readily available, and have medically trained staff who conduct medical screenings

21 of the detainees and provide care as appropriate.

22

In 2019, the average time spent in CBP custody in the Tucson Sector was 53.92

23 hours, with 34 percent of 63,490 detainees being held longer than 48 hours: 9,798

24

25

5 The Court treats the weekend and holiday closures by the judiciary the same as the nighttime logistic impediment CBP faces in carrying out is duty to transfer detainees to receiving

26

agencies. The Court intends that the Permanent Injunction will accommodate the logistical impossibility for CBP to transport a detainee to a receiving agency due to court closures

27

during the night, weekends and holidays, with CBP making every possible effort to provide such detainees with conditions of confinement meeting basic human needs to sleep in a

28

bed, have a shower, etc., if it becomes logistically impossible for CBP to transfer a detainee pursuant to the “no longer than 48 hours” rule because the courts are only open on

weekdays and closed holidays.

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 12 of 40

1 individuals were held up to 72 hours and 12,030 individuals were held longer than 72

2 hours. Therefore, the Court finds that Defendant Chad Wolf, Acting Secretary of United

3 States Department of Homeland Security,6 and the other Defendants administer a

4 detention system that deprives detainees, who are held in CBP stations, Tucson Sector,

5 longer than 48 hours, of conditions of confinement that meet basic human needs because

6 CBP holding cells are designed so as to preclude beds, with detainees being forced over a

7 period of several nights (more than 2) to sleep on mats on concrete floors or benches in

8 fully-lit holding cells. CBP does not provide a second layers of clothing and the holding

9 cells are uncomfortably cold even with floor mats, especially at night because body

10 temperature drops due to inactivity and the Mylar blankets are not effective to provide

11 warmth as they are designed to prevent the loss of body heat. (Order (Doc. 244) at 15

12 (referencing preliminary injunction testimony reflecting efficacy of Mylar blanket

13 depends on comfortable room temperatures because it does not provide insulation but

14 merely prevents evaporation of approximately 80% of body heat). Sleeping is constantly

15 interrupted because CBP operations include 24-7 processing that continuously moves

16 detainees in and out of holding cells where other detainees are attempting to sleep. This is

17 especially disruptive, when detainees, who have been fully processed, i.e., “processing

18 complete,” occupy the same holding cells that new arrivals are being moved in and out of

19 during processing. Disruption is compounded by intermittent overcrowding, especially at

20 TCC, when detainees are forced to step over each other, step on each other’s mats, and

21 even sleep in toilet stall areas, thereby, making it impossible to move about the cell to get

22 water or use the bathroom without disrupting other detainees who are trying to sleep.

23

The Plaintiffs ask the Court to enjoin the Defendants from holding detainees in

24 these conditions for more than one night. The Court’s permanent injunction is more

25 limited. The “no longer than 48-hours” rule allows a third night detention only when it is

26 necessary due to incomplete processing or the logistic impossibility of making an agency

27 transfer at night. The Court limits the permanent injunction to detainees that are transfer

28 6 ICE is an agency within the Department of Homeland Security; CBP is an agency within the Department of Homeland Security.

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 13 of 40

1 ready, i.e., the detainee has been processed by CBP and the appropriate receiving agency

2 has been identified—the detainee is “processing complete.”

3

The Court finds that each of the conditions of confinement existing in the CBP

4 holding cells described above, and all of them together, are presumptively punitive because

5 they are more restrictive than the conditions of confinement described above as existing

6 for pretrial detainees held in jails or prisons and for civil detainees held in ICE, ERO, HHS

7 or other civil detention facilities. Considering the conditions of confinement in CBP

8 holding cells in the context of holding these detainees for the purpose of civil immigration

9 proceedings, the conditions of confinement are especially harsh and unrelated to the

10 purpose of their confinement. In the context of CBP’s legitimate government interests,

11 CBP admits that detention responsibilities lasting beyond the time period necessary to

12 process detainees takes away from its ability to carry out its patrol duties along the border.

13 See (Joint Exhibit (JE) 759: Memorandum from Kevin K. McAleenan, Commissioner, U.S.

14 CBP, Southwest Border Security and Humanitarian Crisis: U.S. Customs and Border

15 Protection Immediate Action Plan (April 9, 2019) 2-3 (explaining objective of Action Plan

16 is to restore USBP in-custody numbers to safely managed thresholds, allowing USBP to

17 return our law enforcement resources to our border and national security priorities as

18 quickly as possible.”) Once CBP has processed detainees, identified the receiving agency,

19 and had a reasonable time to make the transfer (the time needed to transport the detainee

20 to the receiving agency), the governmental interests that warrant the existing conditions of

21 confinement end. The 48-hour rule accommodates this governmental interest. Under the

22 “no longer than 48-hours” rule, a detainee, who is processing complete, may not be held

23 into a third night or longer, unless CBP can provide conditions of confinement that provide

24 for basic human needs, especially uninterrupted sleeping in a bed, warmth, showers, food

25 that meets acceptable dietary standards, potable water, and a medical assessment made by

26 a medically trained professional.

27

FINDINGS OF FACT AND CONCLUSIONS OF LAW

28

On January 13 through 17, and 21 through 22, 2020, this action was tried before this

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 14 of 40

1 Court, sitting without a jury. Having heard the testimony and having examined the proofs

2 offered by the parties, and having heard the arguments of counsel and being fully advised

3 herein, the Court now finds generally in favor of Plaintiff and against the Defendant, and

4 hereby makes the following special Findings of Fact and Conclusions of Law pursuant to

5 the Federal Rules of Civil Procedure, Rule 52(a) which constitutes the decision of the Court

6 herein:

7

A. Findings of Fact

8

To the extent these Findings of Fact are also deemed to be Conclusions of Law, they

9 are hereby incorporated into the Conclusions of Law that follow.

10

1. The CBP’s primary mission is detecting and preventing the entry of

11 terrorists, weapons of mass destruction, and unauthorized aliens, as well as interdicting

12 drug smugglers and other criminals entering the United States between the ports of entry.

13 (Ds’ Proposed Findings of Fact (Ds PFOF) (Doc. 441) ¶¶ A.1-A.2); (TR 1/15/2020 (Day

14 3) (Doc. 471): Defraitas at 30) (describing CBP mission: “[f]undamentally securing our

15 nation’s borders, operating in between the ports of entry to ensure that illicit narcotics,

16 contraband, undocumented aliens, terrorists and [] don’t enter the United States.”)

17

2. In carrying out this “interdiction mission,” a CBP agent in the Tucson

18 Sector apprehends an individual and brings him or her to one of eight Tucson Sector

19 stations—Ajo, Brian A. Terry, Casa Grande, Douglas, Nogales, Sonoita, Tucson

20 Coordination Center (“TCC”) or Willcox. Agents at the Tucson Station and Three Points

21 Station bring individuals directly to the TCC. (DPFOF (Doc. 441) ¶ A.3.)

22

3. Once an individual arrives at a station, CBP agents ascertain the

23 individual’s identity, and immigration and criminal history. The individual is processed

24 to determine whether he or she may be repatriated, transferred into the custody of another

25 agency, referred for prosecution in accordance with the law, or, in rare circumstances,

26 released on his or her own recognizance. Id. ¶ A.4.

27

4. Individuals awaiting the completion of processing and transfer out of CBP

28 custody wait in hold rooms within the CBP station. CBP stations, like CBP itself, operate

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 15 of 40

1 twenty-four hours a day, seven days a week. A significant number of Tucson Sector CBP

2 apprehensions occur at night. Id. ¶ A.6.

3

5. Once detained, individuals are often transferred from one hold room to

4 another as operational demands require including, but are not limited to, the Prison Rape

5 Elimination Act (“PREA”), Pub. L. No. 108-79, 117 Stat. 972 (Sept. 4, 2003) (codified at

6 42 U.S.C. §§ 15601, et seq.); United States Customs and Border Protection (“CBP”)’s

7 National Standards on Transport, Escort, Detention, and Search (“TEDS”) detainee and

8 occupational safety requirements, and to maintain facility cleanliness. Id. ¶ A.7.

9

6. Tucson Sector CBP aims to maintain a safe environment both for

10 individuals in custody and for its agents, other employees, and on-site contractors. There

11 is no evidence of any express intent to punish detainees. Id. ¶ A.9.

12

7. CBP stations are intended and designed for short-term holding during

13 processing and are not long-term detention facilities. Processing generally takes between

14 2 and 2.5 hours. (JE 121 ¶ 5 (Allen Decl 2/24/16)). CBP operations, such as bedding

15 accommodations, food, and personal hygiene, are designed to move detainees out of CBP

16 custody within 12 to 24 hours and detention exceeding 24 hours is “extended” (Plaintiffs’

17 Exhibit (PE) 1234 (4/7/17 Allen Dep. at 155:13-21)) or “prolonged” id. at 162:19-163:3.

18 See also Deposition Video (PE 1234) (8/23/17 Raleigh Leonard (describing CBP as not

19 being in business of detaining people longer than 24 hours); Deposition Video (PE 1234)

20 (7/14/16 George Allen (describing food standards, cell capacities and sleeping

21 accommodations being based on 12-24 holds). Agent Carrie Davison, Special Operations

22 Supervisor, described holding time beyond 72 hours to be an extended time. (TR Day 4:

23 Davison (questioned by the Court) (Doc. 473) at 90.)

24

8. CBP’s hold room design standards mandate at least 7 square feet of

25 unencumbered square feet per detainee. (JE 4 at USA000089-90.) These standards

26 assume detainees will not lie down, since “a hold room is not designed for sleeping.” (Id.

27 at USA-0000091.)

28

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 16 of 40

1

9. ICE hold room standards also mandate at least 7 square feet of

2 unencumbered square feet per detainee. (JE 910: National Detention Standards for Non-

3 Dedicated Facilities Revised 2019 at 38.) ICE’s standards are clear that hold room

4 capacities are based on seating capacity, with no accommodations for sleeping

5 apparatuses; detainees “may not be held in a hold room for more than 12 hours.” (JE 910

6 at 38.)

7

10. The memorandum, Hold Rooms and Short Term Custody, dated June 2,

8 2008 (2008 Memorandum Policy), is the national guiding policy on short-term custody

9 pertaining to CBP Tucson Sector hold-rooms. (JE 9.) Another national level policy was

10 also published, U.S. Customs and Border Protection National Standards on Transport,

11 Escort, Detention and Search (TEDS), dated October 2015. (JE 74.) TEDS is the

12 comprehensive CBP policy related to the safety, security, and care of detainees, which

13 reinforces the Hold Rooms and Short Term Custody policy. Where the two policies

14 differ, the more restrictive policy takes precedence. (JE 863: Memorandum, October 3,

15 2019.)

16

11. Under the 2008 Memorandum Policy: “Detainees will be promptly

17 processed and turned over to United States Immigration and Customs Enforcement (ICE),

18 Office of Detention and Removal Operations (ERO), the Office of Refugee Resettlement

19 (ORR); the United States Marshals Service; or another agency (OA), as appropriate.”

20 CBP Policy: Hold Rooms and Short Term Custody § 5.2. “Whenever possible, a detainee

21 should not be held for more than 12 hours. Every effort will be made to promptly process,

22 transfer, transport, remove, or release those in custody as appropriate and as operationally

23 feasible.” Id. § 6.2.1. The senor shift supervisor must be notified of a detention that

24 reaches or exceeds 24 hours and shall make every effort to promptly move the detainee,

25 id. § 6.2.2; the Sector Staff Duty Officer shall be notified when a detention period reaches

26 or exceeds 72 hours and shall make every effort to promptly move the detainee, id. §

27 6.2.3. The same durational limits apply to UACs, and the Flores Settlement requires that

28 UACs must be placed in an ORR-approved facility within 72 hours, but the maximum

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 17 of 40

1 time allowed under extenuating circumstances for placing UAC in an ORR approved

2 facility is five days. Id. §§ 6.24-6.2.4.2.

3

12. Under TEDS: “Detainees should generally not be held for longer than 72

4 hours in CBP hold rooms or holding facilities. Every effort must be made to hold

5 detainees for the least amount of time required for their processing, transfer, release, or

6 repatriation as appropriate and as operationally feasible.” (JE 74 § 4.1.)

7

13. Neither the 2008 Memorandum Policy nor the TEDS reflect the

8 constitutional standard, but both establish that CBP holding cells and station operations

9 are not designed to hold detainees, routinely, longer than 12 hours.

10

14. In FY 2015, Tucson Sector CBP apprehended 63,397 individuals; in 2016,

11 CBP apprehended 64,891 individuals; in 2017, CBP apprehended 38,657 individuals, and

12 in 2018, CBP apprehended 52,172 individuals. In FY 2019, Tucson Sector CBP

13 apprehended 63,490 individuals, an increase in 22 percent from the previous fiscal year.

14 Of the 63,490 individuals apprehended in FY 2019 by Tucson Sector, 5,105 were

15 unaccompanied alien children (UAC), 16,199 were members of family units (FMUA),

16 and 42,186 were single adults. (DPFOF (Doc. 441) ¶ A.8.) The 2019 apprehensions

17 reflect the general demographics for detainees since at least the inception of this case.

18 (TR Day 3: DeFrieitas (Direct) (Doc. 471) at 79-89 (describing demographic

19 consistencies with slight variations since 2016 in numbers of Mexican nationals and

20 other-than Mexico, UACs, FMUAs, and single adults; explaining increases in UACs and

21 FMUAs is national problem being experienced more dramatically in other sectors but

22 nevertheless affecting Tucson Sector’s ability to place UACs and FMUAs because all

23 sectors compete nationally for limited ICE detention space).

24

15. In FY 2019, the average time an individual spent in custody in Tucson

25 Sector was 53.92 hours. More specifically, the times in custody for the 63,490 individuals

26 apprehended by Tucson Sector in FY 2019 were as follows: 3,008 individuals (5%) were

27 held for fewer than 12 hours; 15,238 individuals (24%) were held for 12 to 24 hours;

28 23,416 individuals (37%) were held for 24 to 48 hours; 9,798 individuals (15%) were

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 18 of 40

1 held for 48 to 72 hours; and 12,030 individuals (19%) were held for longer than 72 hours.

2 (DPFOF (Doc. 441) ¶ A.10.)

3

16. Time in custody has increased over previous years. “Discovery in this case

4 reflects that in 2015, between June 10, 2015 and September 28, 2015, about 3,000 [18%]

5 of approximately 17,000 detainees were processed out of CBP station detention within 12

6 hours. (Gaston Decl. ¶ 20.) Of these 17,000 detainees, 8,644 people [51%] were held at

7 CBP stations up to 23 hours; 6,807 [40%] were held up to 47 hours; 1,207 [7%] were

8 held up to 71 hours, and 476 [2%] were held for 72 hours or more. [] Defendants’ expert,

9 Diane Skipworth, indicated that based on her review ‘CBP tries diligently to process

10 detainees promptly, and generally does so within 24 hours.’ (Skipworth Decl. ¶ 154.)

11 Defendants’ other expert, Richard Bryce, believe[d] that nearly all detainees were

12 processed within 48 hours. (Bryce Decl. ¶ 38.)” (Order (Doc. 244) at 12.)

13

17. Time in detention for purpose of this case means: time in custody at a CBP

14 station, calculated from book-in at a station, not apprehension in the field, therefore,

15 detention times underestimate the extent to which detainees are deprived of sleep and

16 hygiene. The long transportation times between field apprehension and book-in at a

17 station mean that detainees are in grave need of a facility that can accommodate the basic

18 human needs for sleep, food, and a shower.

19

18. The custody of individuals apprehended by Tucson Sector CBP is governed

20 by applicable immigration detention statutes. See 8 U.S.C. §§ 1225, 1226, 1231, 1252.

21 An individual may also be detained by Tucson Sector CBP pending referral for criminal

22 prosecution. In most instances, Tucson Sector must keep individuals in its custody for the

23 time that it takes to complete their individual processing and to arrange transportation to

24 each individual’s next destination: United States Marshals Service, ICE, ERO, HHS, etc.

25 (DPFOF ¶ A.12.)

26

19. The Commissioner of the United States Customs and Border Protection has

27 acknowledged the significant increase in the numbers of aliens remaining in custody over

28 72 hours. “These volumes of apprehensions and aliens in custody have created

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 19 of 40

1 unprecedented humanitarian and safety concerns which we must continue to urgently

2 address.” The delivery of soft-sided and modular structures could address immediate

3 capacity needs.” (JE 759: Memorandum from Kevin K. McAleenan, Commissioner, U.S.

4 CBP, Southwest Border Security and Humanitarian Crisis: U.S. Customs and Border

5 Protection Immediate Action Plan (April 9, 2019) at 1).

6

20. The Immediate Action Plan for CBP, April 9, 2019, set out by the

7 Commissioner, includes actions to be undertaken by CBP along the Southwest Border to

8 address “increasing throughput challenges associated with processing unprecedented

9 numbers of Unaccompanied Alien Children (UAC) and Family Unit Aliens (FMUA); and

10 [the] significant challenges transferring these aliens to other appropriate entities, . . .

11 “specifically . . a significant increase in UAC and FMUA- as well as total numbers of

12 aliens- remaining in custody over 72 hours.” (JE 759: Memorandum from Kevin K.

13 McAleenan, Commissioner, U.S. CBP, Southwest Border Security and Humanitarian

14 Crisis: U.S. Customs and Border Protection Immediate Action Plan (April 9, 2019) at 1).

15 The 2019 Actions include: 1) increase processing capacity, 2) efficiently implement

16 limited Own Recognizance (OR) releases of FMUA, to reduce in custody populations all

17 round, especially moving FMUAs out of CBP custody creates more room for other

18 detainee classifications, id. at 2-3, and 3) add soft-sided modular structures to address

19 immediate capacity needs, id. at 5-11. The objective of the 2019 Action Plan is “to

20 restore USBP in-custody numbers to safely managed thresholds, allowing USBP to return

21 our law enforcement resources to our border and national security priorities as quickly as

22 possible.” Id. at 2-3.

23

21. The length of time individuals spend in the custody of Tucson Sector

24 depends on a number of factors, including, but not limited to: age; gender; family status;

25 criminal history; country of origin; immigration history; the number of individuals

26 apprehended together; overall CBP apprehension numbers; and the ability of the ICE,

27 ERO, HHS, or the United States Marshals Service, to take custody. (DPFOF (Doc. 441)

28 at ¶ A.11.)

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 20 of 40

1

22. The number of individuals in any given station or hold room within Tucson

2 Sector will depend on a number of factors that are constantly changing. These factors

3 include, but are not limited to: the number of individuals apprehended in the Tucson

4 Sector in a given day or night; the breakdown of those apprehended by age, gender,

5 family group, and criminal status; an individual’s destination; any safety or health

6 concerns that may arise related to individuals at the station; and the pace of processing,

7 which may itself depend on each individual’s criminal and immigration history.

8 Additionally, temporary issues with station facilities impacting detention conditions—

9 such as temperature, availability of potable water, functioning toilets, and sanitation

10 needs—may impact the number of individuals in a given hold room or station. Id. ¶ A.13.

11

23. Many of these factors are further dependent on a variety of other factors

12 such as the time of year, weather, conditions in other countries, and the custody space

13 available with other agencies whose participation is needed to transfer individuals out of

14 CBP custody. There is no basis on which CBP can accurately predict on any given day

15 whether tens or thousands of individuals will show up at a specific location or at a

16 specific time along the border, even if the CBP is monitoring the movement of large

17 groups towards the United States border. Id. ¶ A.14.

18

24. The number of individuals in a given hold room is never intended to create

19 discomfort or challenges for those in custody, but rather is determined by operational

20 concerns. Food, water, sanitation, hygiene items, bedding, medical care, etc., are not

21 withheld as a punitive measure, and station temperatures are not set for punitive

22 purposes. Id. ¶ A.15.

23

25. Tucson Sector has internal review processes in place to ensure that it is

24 complying with policies and procedures (e.g., PREA, TEDS, 2008 Hold Rooms and

25 Short-Term Custody memorandum), as well as any court orders, including the

26 preliminary injunction issued in this case. In addition, every quarter, the Tucson Sector

27 Policy and Compliance Division conducts “no-notice” compliance evaluations of each

28 Tucson Sector station where individuals are held in custody and provides the results of

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 21 of 40

1 that evaluation to the Tucson Sector Chief Patrol Agent. The Chief Patrol Agent then

2 sends a memorandum to the respective location’s leadership that documents the

3 compliance evaluation results as well as any remedial steps that need to be taken. Among

4 other things, these evaluations assess both physical layout and data input, and the

5 evaluators have the authority to suggest recommended actions. Where these review

6 processes result in a finding that Tucson Sector is out of compliance, Tucson Sector takes

7 steps to return to compliance. Id. ¶ A.16.

8

26. Overcrowding is intermittent. There was no evidence presented as to how

9 many of the 63,490 individuals apprehended by Tucson Sector in FY 2019 were held in

10 overcrowded cells or for how long the overcrowding lasted. Routine intermittent

11 overcrowding occurs at the TCC because both Tucson Sector and Three Points Sector

12 book detainees, directly, into the TCC. Most detainees spend a short time at Tucson

13 Sector stations before being transported to the TCC for further processing and/or they

14 await transfer to a receiving agency.

15

27. Overcrowding is especially acute at night when cell capacity is cut almost

16 in half to accommodate sleeping mats. (Motion for Reconsideration (Doc. 252) at 5

17 (reporting that cell capacity, previously calculated as seating capacity cut in half to

18 accommodate lying down to sleep on a floor mat after 12 hours of detention).

19 Overcrowding is especially acute at TCC because it is the transportation hub and point of

20 coordination for detainees requiring further detention for processing and/or transfer to a

21 long-term detention facility like ICE and ERO; bus routes and detainee transportation,

22 sector-wide, are set up around the TCC. When the TCC is at maximum capacity, stations

23 are forced to hold detainees longer. (Ds’ Motion for Reconsideration (Doc. 252) at 5-6.)

24

28. The majority of all detainees, including those who will be criminally

25 prosecuted, are likely at some point to be processed through the TCC. Id. Overcrowding

26 at the TCC at night occurs because detainees are routinely routed through TCC holding

27 cells at 4 a.m. Monday through Thursday for morning court appearances.

28

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 22 of 40

1

29. Surveillance video reveals overcrowding so severe that, at times, detainees

2 have no place to sit, much less lie down on mats; detainees (including children) sleep in

3 toilet stalls for lack of space; detainees (including mothers holding children) are forced to

4 climb over benches to reach toilets and drinking water; and detainees are forced to sleep

5 sitting up. E.g., JE 507.143 at VTCC000762, JE 507.149 at VTCC000790-794 (no place

6 to sit or lie down); JE 507.46, JE 507.55, JE 507.80, JE 507.99, JE 507.143, JE 507.160

7 (sleep in toilets, including children); JE 507.80 at VTCC000386, JE 507.108 at

8 VTCC000525, JE 507.151 at VTCC000811, JE 507.85 at VTCC000407-409 (climbing);

9 JE 507.157 at VTCC000872-873 (sleep sitting); JE 507.143 at VTCC000756-758.

10

30. Overcrowding exacerbates other deprivations, including sleep, as well as

11 access to toilets and potable water, and compounds personal hygiene needs. Floor

12 sleeping in toilet areas is humiliating to both the detainee sleeping there and any detainee

13 needing to use the toilet, and it also poses a risk to a detainee of infection or

14 contamination with fecal matter and other bodily fluids.

15

31. A large number of detainees in Defendants’ custody are detainees

16 designated in CBP records as “processing complete” —i.e., the detainee has been

17 processed by CBP and the receiving agency has been identified, and the detainee is

18 detained by CBP waiting for transfer due to the inability of a designated receiving

19 agency, such as the United States Marshals Service, ICE, ERO, HHS, etc., to take

20 custody. (E.g., JE 857 at 5 (DHS data shows many, if not most, detainees are “processing

21 complete”)). It may be possible to identify “processing complete” detainees pursuant to

22 information logged in e3DM, Defendants’ database, as “PRCMP.” (JE 22.)

23

32. Hold time due to detention after processing is complete is unrelated to any

24 legitimate custodial governmental interests related to CBP operations, except as it is

25 necessary to accommodate day-time logistics necessary for transporting and transferring

26 detainees to facilities that are not open at night, including repatriation to Mexico.

27

33. Hold time due to detention after processing is complete is unrelated to any

28 legitimate custodial governmental interests related to CBP operations, except as it is

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 23 of 40

1 necessary to logistically accommodate court scheduled judicial proceedings for pretrial

2 detainees that do not occur on weekends and holidays.

3

34. Overcrowding due to detention after processing is complete, when

4 detainees have been processed, the appropriate transfer has been determined, and the

5 detainee is awaiting transfer because a receiving agency cannot accept the transfer, is

6 unrelated to any legitimate custodial governmental interests related to CBP operations or

7 mission.

8

35. The “no longer than 48 hours” rule is rationally related to, and necessary,

9 for CBP to carry out its governmental interests to interdict and process detainees, and to

10 account for the logistical need for daytime hours to transport detainees to receiving

11 agencies, ICE, ERO, HHS, etc., to Mexico for repatriation, or for court appearances.

12

36. Individuals in Tucson Sector custody are permitted to sleep and do sleep.

13 (DPFOF (Doc. 441) ¶B1.) Detainees held longer than 12 hours after being booked-in at a

14 Tucson Sector station have the basic human need to sleep. (Order (Doc. 244) at 16, 27.)

15

37. Tucson Sector hold rooms have built-in concrete or metal benches that are

16 fastened to the ground, on which individuals can sit and lie down. Concrete and metal

17 surfaces are used in CBP stations because they can be cleaned easily and quickly, and

18 inhibit the growth of microorganisms that cause disease, thereby protecting the health of

19 individuals in custody. These hard surfaces are cold and disruptive of sleeping. CBP

20 provides a sleeping mat and a Mylar blanket to each detainee upon arrival at a Tucson

21 Sector station. Individuals can place these mats on the floor or on any of the benches in a

22 hold room, providing a more comfortable, including warmer, surface on which an

23 individual can rest or sleep. Id. ¶ B.2.)

24

38. Tucson Sector will provide an individual in custody a new Mylar blanket

25 upon request. Mylar blankets are not effective to provide warmth as they are designed to

26 prevent the loss of body heat because it does not provide insulation but merely prevents

27 evaporation of approximately 80% of body heat, therefore, the efficacy of Mylar blanket

28 depends on comfortable room temperatures. (Order (Doc. 244) at 15.)

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 24 of 40

1

39. For safety reasons, Tucson Sector confiscates adults’ outer layer(s) of

2 clothing and permits them to keep one layer of their own clothing. Tucson Sector

3 maintains all clothing it confiscates while its owner is in custody and returns the clothing

4 to the individual when he or she leaves Border Patrol custody. Children are generally

5 permitted to keep an additional layer of clothing while in Tucson Sector custody.

6 (DPFOF (Doc. 441) ¶ F.12.)

7

40. Except for a single washer and dryer in the TCC, Tucson Sector stations do

8 not have laundry facilities on site, making the use of cloth blankets that must be cleaned

9 after each use impractical. Moreover, the location of the stations and the large volume of

10 individuals in custody would make the use of cloth blankets prohibitively expensive to

11 clean. Finally, providing cloth blankets or other cloth bedding poses a health risk,

12 because cloth can transmit diseases if shared by individuals who are being held in close

13 proximity during their custody. (DPFOF (Doc. 441) ¶ B.5.)

14

41. Tucson Sector maintains hold rooms at temperatures between 66 and 80

15 degrees. This temperature range is reasonable. Tucson Sector checks hold room

16 temperatures once per shift and records the temperatures for each station hold room in

17 e3DM, and work orders are issued to address hold rooms with temperatures beyond that

18 range and the affected hold room may be deemed temporarily out of use until the

19 temperature issue is remedied. Id. ¶ F.1.

20

42. For safety reasons, Tucson Sector confiscates adults’ outer layer(s) of

21 clothing and permits them only one layer of their own clothing. Tucson Sector maintains

22 all clothing it confiscates while its owner is in custody and returns the clothing to the

23 individual when he or she leaves CBP custody. Children are generally permitted to keep

24 an additional layer of clothing while in Tucson Sector custody. Id. ¶ F.4.

25

43. Tucson Sector station hold rooms do not contain movable beds because

26 beds or pieces of furniture can be used as weapons, and also because placing beds in hold

27 rooms would greatly reduce the amount of available space in the hold room—thus

28

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 25 of 40

1 making it difficult for individuals in custody, agents, employees, and contractors, to move

2 quickly and easily within the hold room as needed. Id. ¶ B.3.

3

44. Tucson Sector has established hold room capacities that are based on the

4 number of sleeping mats that can be fully unfolded on the floor of the hold rooms with

5 minimal or no overlapping, and with a sufficient area of the floor clear for walking into

6 and out of the hold room and to and from the hold room toilet(s) and water. Tucson

7 Sector makes every effort to not exceed these hold room capacities, and if it must do so—

8 out of operational necessity—it makes every effort to limit the time period in which such

9 capacities are exceeded. Id. ¶ B.4.

10

45. There are intermittent periods of overcrowding in holding rooms when

11 detainees are forced to sleep in toilet areas and when access to water and the toilets is

12 impeded because detainees cannot move around the holding cell without stepping over

13 and on sleeping mats. E.g., JE 507.143 at VTCC000762, JE 507.149 at VTCC000790-

14 794 (no place to sit or lie down); JE 507.46, JE 507.55, JE 507.80, JE 507.99, JE

15 507.143, JE 507.160 (sleep in toilets, including children); JE 507.80 at VTCC000386, JE

16 507.108 at VTCC000525, JE 507.151 at VTCC000811, JE 507.85 at VTCC000407-409

17 (climbing); JE 507.157 at VTCC000872-873 (sleep sitting); JE 507.143 at VTCC000756-

18 758.

19

46. Tucson Sector keeps station hold rooms illuminated at all hours to maintain

20 the continuity of operations, and to ensure the safety and security of individuals in

21 custody as well as the safety and security of agents, other employees, and on-site

22 contractors. Turning lights off in hold rooms would make it difficult for agents to monitor

23 activity in those rooms, which would in turn create a risk to the safety of individuals held

24 there as well as to the safety of employees and on-site contractors who enter the hold

25 rooms. (DPFOF (Doc. 441) ¶ B.6. Dimming lights within safety standards is not done

26 because Tucson Sector stations are not equipped to dim holding room lights. (TR Day 2:

27 Eldon Vail (Direct) (Doc. 469) at 14-15, Eldon Vail (Cross) (Doc. 469) at 90-92)

28 (describing prevailing practices of jails to dim lights during typical sleeping hours and

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 26 of 40

1 unusual to keep them on all night); (TR Day 4: Carrie Davison (Doc. 473) at 23

2 (explaining lights remain on because it is not possible to urn them off because there is no

3 dimming capability at the stations).

4

47. The numbers of toilets in Tucson Sector station hold rooms are adequate,

5 and include privacy walls which are consistent with, toilet facilities used in correctional

6 facilities where individuals are held and are positioned at a height that affords a

7 reasonable level of privacy while still providing enough visibility to minimize safety and

8 security risks. Tucson Sector also blocks the view of the toilet on its surveillance cameras

9 to ensure privacy. (DPFOF (Doc. 441) ¶ C.1.)

10

48. Tucson Sector CBP has cleaning contracts with professional cleaning

11 companies for each of its stations. These contracts provide for at least daily cleaning of

12 the hold rooms (although in practice, cleaning is ordinarily performed twice daily). Hold

13 rooms also are inspected by CBP personnel multiple times each day (generally by a

14 supervisor at the beginning of each shift) for a variety of things, including cleanliness,

15 ventilation, temperature, and presence/absence of pests. The results of these checks are

16 required to be placed into e3DM (e.g., “amenity reports”), and responses indicating that

17 something is out of compliance are tracked to assure a remedy was sought. Id. ¶ C.3.

18

49. Tucson Sector’s general practice is to provide trash cans inside station hold

19 rooms. When trash cans cannot be provided inside the hold rooms, they are made

20 available outside the rooms, cleaning personnel collect the trash during each hold room’s

21 cleaning. Trash sometimes accumulates in between regular cleanings. Additionally, dirt

22 may be tracked in when individuals enter the hold rooms. CBP agents inspect hold rooms

23 for insects, rodents, and vermin, and report any such findings through the e3DM system.

24 Tucson Sector addresses such issues promptly. Sleeping mats placed on the floor are

25 subject to contamination from being in contact with the floor, especially when placed

26 near the toilet facilities. Id. ¶ C.4.

27

50. All individuals who remain in Tucson Sector custody for longer than 12

28 hours are provided an opportunity to clean themselves. Most stations provide body wipes

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 27 of 40

1 to meet this human need for personal hygiene. Until recently, only two Tucson Sector

2 stations had showers: TCC and Nogales. More recently, other Tucson Sector stations

3 have signed contracts to build shower facilities. Ajo, Willcox, and Douglas stations will

4 each have a single shower, and the Brian A. Terry station will have two showers. Id. ¶

5 C.5.

6

51. A universal policy of providing showers to all individuals upon their arrival

7 to a Tucson Sector station—or when they have only been in CBP custody for a short time

8 period—would significantly slow the processing of every individual, and would in many

9 cases extend the time the individual spends in custody at a station. At a minimum,

10 Tucson Sector makes reasonable efforts to provide showers for juveniles approaching 48

11 hours in custody and for adults who are approaching 72 hours in custody, including

12 transporting such individuals to facilities with showers in order to accomplish this goal.

13 Id. ¶ C.6.

14

52. In addition to body-wipes, Tucson Sector generally provides personal

15 hygiene items, including toothbrushes and toilet paper in hold rooms. Tucson Sector

16 makes sanitary napkins, diapers, diaper cream, and baby wipes readily available. In the

17 section of the TCC where children and families are generally held, many of these items

18 are readily accessible on a cart immediately outside—and in view of—this population’s

19 unlocked hold rooms or in the case of holding rooms where females are routinely held,

20 female hygiene items s are placed in the toilet area. Id. ¶ C.7-8.

21

53. All of the Tucson Sector hold rooms have been fitted with soap dispensers,

22 which provide individuals with the ability to wash their hands in the hold rooms. Tucson

23 Sector uses the “air-drying method” for handwashing, which the Centers for Disease

24 Control and Prevention recognizes as an effective hand drying method. Tucson Sector

25 has determined that providing paper towels is operationally problematic as individuals in

26 custody would frequently throw the paper towels on the floor or put them into the toilet,

27 creating clogs. Id. ¶ C.9.

28

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 28 of 40

1

54. Clean, potable, drinking water is always available to individuals in Tucson

2 Sector hold rooms. Each hold room in Tucson Sector has a bubbler, water fountain, or

3 faucet with clean paper cups. Tucson Sector regularly tests the water flow and arc of the

4 drinking water portion of the bubbler to ensure that water is suitable for drinking directly,

5 or filling a cup, from the fountain. In addition, Tucson Sector may provide five-gallon

6 Igloo coolers of clean water (as well as clean paper cups) for drinking. Id. ¶ D.2-3.

7

55. Tucson Sector provides a meal or snack to each individual upon their

8 arrival to a station. For hot meals, Tucson Sector offers bean (vegetarian) or meat

9 burritos. For snacks, Tucson Sector has generally offered cheese- and peanut butter-filled

10 crackers, as well as juice. Tucson Sector offers at least two hot meals at regularly

11 scheduled mealtimes per day and provides snacks in between meal times. Tucson Sector

12 is in the process of implementing a new food contract that provides additional variety in

13 the meals of an egg/breakfast burrito and snacks, such as raisins, applesauce, and fruit

14 cups. Additionally, juveniles at the TCC have open access to all of the above items, as

15 well as granola/cereal bars, animal crackers, and dairy-free (i.e., soy/almond) milk. When

16 an adult in custody requests additional food in between mealtimes, a CBP agent may

17 grant the request. Id. ¶¶ D.5-D.6, D.8.

18

56. Tucson Sector provides children and pregnant, or nursing, individuals with

19 meals every six hours and snacks are available at all times. In the section of the TCC

20 where children and families are generally held while in Tucson Sector custody, snacks

21 are readily accessible on a cart immediately outside—and in view of—this population’s

22 unlocked hold rooms so that individuals may take the items as needed. Tucson Sector

23 also uses signage, in English and Spanish, and pictures to demonstrate that snacks and

24 hygiene items are available upon request. Id. ¶ D.9.

25

57. Tucson Sector stations keep in stock and provide age-appropriate food,

26 such as formula, baby food, and toddler food. Tucson Sector’s practice of providing

27 packaged foods that are served in their original, unopened packages is a safe food-

28 handling practice that serves to protect the health of individuals in custody. Food

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 29 of 40

1 expiration dates are noted, and food is discarded if it is not used by the expiration date.

2 Food, and its expiration date, is specifically tracked in multiple different review

3 processes, including by the Tucson Sector’s “no-notice” quarterly compliance evaluations

4 and the Management Inspection Division’s unannounced evaluations. Id. ¶¶ D.10-11.

5

58. The food Tucson Sector provides individuals is nutritionally adequate for

6 relatively short periods of time spent in custody, no longer than 48 hours. Id. ¶ D.12.

7

59. Tucson Sector CBP employs a multi-layered approach to identify and treat

8 medical concerns for individuals in its custody. Id. ¶ E. 1.

9

60. First, individuals have contact with agents in the field who begin assessing

10 detainees visually and through oral communications. Agents actively screen individuals

11 by asking them about their health and medical needs and passively screen them by

12 observing for any medical concerns. If an agent has a medical concern about an

13 individual, the agent may arrange for the detainee to be taken to the hospital for medical

14 care prior to being transported to a CBP station for processing. (TR Day 5: Dr. Tarantino

15 (Doc. 475) at 22: ln14-23: ln 18.)

16

61. Second, when an individual arrives at a Tucson Sector station other than the

17 TCC, the detainee is given a health intake interview by a CBP agent who completes a

18 universal screening form, which has been approved by medical experts. The CBP agent

19 asks each detainee a series of questions and records the individual’s answers. If this

20 screening identifies any medical concerns, the detainee is referred for a medical

21 assessment by either an in-house medical professional or sending the detainee to a local

22 hospital for care. In some cases, a CBP agent, who is also a certified Emergency Medical

23 Technician (“EMT”) or paramedic, may provide applicable medical care to individuals.

24 (TR Day 5: Dr. Tarantino (Doc. 475) at 23: ln 25-27:ln 3.)

25

62. The health intake interview form includes questions that are designed to

26 identify suicide risk, and agents will refer individuals for medical care or take other

27 appropriate action if such risks are identified. (JE 881.)

28

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 30 of 40

1

63. Third, a medical assessment is performed by medical personnel, who

2 provide in-house medical examinations and/or applicable medical care. Most individuals

3 are transferred from Tucson Sector stations to TCC related to processing and/or transport

4 to receiving agencies like ICE or ERO. Therefore, medical personnel are strategically

5 located at the TCC, and soon to be located at the Nogales Station, to be available to

6 provide medical assessments and medical care as an alternative to referring a detainee to

7 a local hospital. (TR Day 5: Dr. Tarantino (Doc. 474) at 26: ln 16-27: ln 10.) The in-take

8 processes at TCC includes the health intake interview, even if previously completed at

9 another station, with a medical assessment by a medical professional to follow shortly

10 thereafter. Id. at 28: ln 18-29: ln 2.

11

64. Tucson Sector agents and medical professionals are proficient, if not fluent,

12 in the Spanish language and are able to converse with and obtain necessary information

13 from more than ninety percent of individuals in custody for purposes of providing

14 medical screening. For individuals who do not speak English or Spanish, Tucson Sector

15 relies on a contract service that provides foreign language speakers who interpret

16 conversations between agents/medical professionals and individuals in custody via the

17 telephone. Id. ¶ E.5.

18

65. In all cases where an agent or medical professional identifies a medical

19 condition in need of medical attention, the agent will refer the individual for medical

20 care, or on-site care will be provided as appropriate. In most cases, medical care is

21 provided by transporting the individual to a local hospital. In some cases, a CBP

22 paramedic or EMT may provide medical care consistent with his or her level of training

23 and certification. At the TCC, on-site medical personnel may provide non-emergency

24 medical care, and Tucson Sector has an arrangement with St. Mary’s Hospital emergency

25 department, in Tucson, Arizona, where a physician advisor is on call twenty-four hours a

26 day to provide Tucson Sector with medical advice. Id. ¶¶ E.7, E.13.

27

66. Tucson Sector agents regularly receive health-related training and guidance.

28 Tucson Sector agents receive policy updates and training concerning infectious diseases.

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 31 of 40

1 These materials are updated periodically to reflect changes in epidemic and endemic

2 situations. Id. ¶¶ E.8-E.10.

3

67. Tucson Sector agents constantly interact with and observe individuals

4 throughout their time in custody. Such interaction and observation provide many

5 opportunities to identify signs and symptoms of health conditions and may lead to agent-

6 initiated communications regarding potential health concerns, including some mental

7 health concerns. Id. ¶ E.11.

8

68. Individuals may request medical care while in custody at any time, even

9 after they have completed their screening and processing. Tucson Sector agents will

10 convey an individual’s request to seek medical attention to a supervisor, and Tucson

11 Sector will transport individuals to local medical care facilities or provide on-site care as

12 appropriate in response to such requests. Id. ¶ E.12.

13

69. If an individual arrives with medication prescribed by a United States

14 physician, the CBP, Tucson Sector, stores the medication, and make it available to the

15 individual to take consistent with the prescription, throughout their time in Tucson Sector

16 custody. Id. ¶ E.14.

17

70. If an individual arrives in Tucson Sector custody with a medication that is

18 not prescribed by a United States physician, or states that he or she needs a particular

19 medication while they remain in Tucson Sector custody, then Tucson Sector will refer the

20 individual to a medical professional to obtain a United States prescription for the

21 medication. Id. ¶ E.15

22

71. Tucson Sector’s policy of confiscating non-United States medications that

23 individuals have in their possession at the time of apprehension is necessary to protect

24 against the introduction of contraband at the CBP stations. Id. ¶ E.16.

25

72. It is undisputed that all of the receiving civil immigration detention

26 agencies and jails and prisons, afford detainees better conditions of confinement as

27 follows: a bed, with cloth sheets, blankets, and pillows; provide warmth by dispensing

28 second layers of clean clothing; have shower facilities; have hot meals prepared pursuant

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 32 of 40

1 to professional dietary standards, with a variety of food choices; have clean potable water

2 readily available, and have medically trained staff who conduct medical screenings of the

3 detainees and provide medical care when needed.

4

73. Detainees in CBP stations face substantially worse conditions of

5 confinement which in the aggregate, include: holding cell conditions which impede

6 sleeping because the cells are fully lit, with floor sleeping on hard cold surfaces, even

7 with the 12-hour provision for sleeping mats and Mylar blankets; no clean or second set

8 of cloths for warmth; sleep is interrupted by CBP 24-7 operations, especially when

9 overcrowding occurs, detainees must walk over, around, and on each other and sleeping

10 mats to navigate the holding room and sometimes sleep on the floor in the toilet area of

11 the holding cell. There is no variety in hot food choices, except between bean, meat or

12 egg burritos; there is some snack variations. There is limited to no availability for

13 showers or clean clothes. At 12 hours or before, body wipes are provided and help with

14 personal hygiene but are ineffective to meet the full personal hygiene needs of detainees,

15 who have been traversing the desert for days, and the smell in holding cells reflects

16 human unwashed bodies until detainees can shower. Generally, non-medical staff

17 performs medical screening by using a universal medical questionnaire, which was

18 developed by medical professionals for this purpose. Recently, CBP has place medical

19 professionals at TCC to conduct medical assessments and provide onsite medical

20 services. These conditions of confinement are necessary for CBP to effectively and

21 efficiently carry out their 24-7 CBP operations, which is to interdict, detain for

22 processing to determine the appropriate civil or criminal detention path for detainees, and

23 transfer detainees to receiving agencies ICE, ERO, the United States Marshals Service,

24 and any other agency.

25

74. Once CBP has processed detainees, identified the receiving agency, and

26 had a reasonable time to make the transfer (the time needed to transport the detainee to

27 the receiving agency), the governmental interests that warrant the existing conditions of

28 confinement end. The reasonable time for processing and transferring a detainee is no

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 33 of 40

1 longer than 48 hours, which accounts for logistical realities caused by CBP detentions

2 that extend over 12-hour nighttime periods when CBP cannot transfer detainees at night.

3 Under the “no longer than 48-hours” rule, a detainee, who is processing complete, may

4 not be held into a third night or longer, unless CBP can provide conditions of

5 confinement that provide for basic human needs, especially uninterrupted sleeping in a

6 bed, warmth, showers, food that meets acceptable dietary standards, potable water, and a

7 medical assessment made by a medically trained professional.

8

B. Conclusions of Law

9

To the extent these Conclusions of Law are also deemed to be Findings of Fact,

10 they are hereby incorporated into the preceding Findings of Fact.

11

1. This is a class action lawsuit brought pursuant to 28 USCA § 1331, which

12 grants this Court original jurisdiction over all civil actions arising under the Constitution,

13 laws, and treaties of the United States. Plaintiffs allege a deprivation of their Fifth

14 Amendment constitutional rights. To prevail, Plaintiffs must prove the alleged

15 constitutional violation by a preponderance of the evidence. Johnson v. Houser, 704 F.2d

16 1049, 1051 (8th Cir. 1983); Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1072 (9th Cir.

17 2016).

18

2. To obtain injunctive relief, the Plaintiffs have the burden to establish that

19 they were wronged and, must also, establish that there is a sufficient likelihood that they

20 will again be wronged in a similar way. City of Los Angeles v. Lyons, 461 U.S. 95, 111

21 (1983). Plaintiffs satisfy the preconditions for the equitable relief they seek because

22 existing immigration demographics will not change in the future, the existing conditions

23 of confinement are likely to remain in the future, and Plaintiffs face future irreparable

24 injury which is both great and immediate should they or any other member of the Plaintiffs’

25 class be detained by CBP, Tucson Sector. (Order (Doc. 118) (denying Motion to Dismiss

26 for lack of standing.)

27

3. The Court adopts by reference the law as set out in its prior Orders, relevant

28 to establishing that basic human needs include sleeping and sleeping in beds, without

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 34 of 40

1 lights and in a warm environment; sanitation, including personal hygiene needs for

2 showers; food, including potable water, and medical screening and care provided by

3 medical professionals. (Order (Doc. 244) at 12, 13 n.7, 16, 20, 21, 23.); (Order (Doc.

4 383) at 4-10.)

5

4. “[W]hen the State by the affirmative exercise of its power so restrains an

6 individual's liberty that it renders him unable to care for himself, and at the same time

7 fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and

8 reasonable safety—it transgresses the substantive limits on state action set by the Eighth

9 Amendment and the Due Process Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc.

10 Servs., 489 U.S. 189, 199-200 (1989)) (citing Estelle v. Gamble, 429 U.S. 97, 103–104

11 (1976).

12

5. Plaintiffs are civil detainees, protected under the Fifth Amendment,

13 mirrored by the Fourteenth Amendment Due Process Clause, which precludes pretrial

14 detainees from being held without due process of law under conditions that amount to

15 punishment prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 534–35

16 (1979); Wong Wing v. United States, 163 U.S. 228, 237 (1896). Constitutional rights in

17 respect to conditions of confinement for prisoners establish a floor for the constitutional

18 rights of the Plaintiffs. Padilla v. Yoo, 678 F.3d 748, 759 (9th Cir. 2012) (citations

19 omitted).

20

6. A condition of confinement for an inmate who has not been convicted

21 violates the Fifth and Fourteenth Amendments if it imposes some harm to the detainee

22 that significantly exceeds or is independent of the inherent discomforts of confinement

23 and is not reasonably related to a legitimate governmental objective or is excessive in

24 relation to the legitimate governmental objective. Kingsley v. Hendrickson, 135 S. Ct.

25 2466, 2473-74 (2015) (citing Bell v. Wolfish, 441 U.S. at 561)).

26

7. Civil detainees cannot be subjected to “conditions of confinement

27 substantially worse than they would face upon commitment,” Lynch v. Baxley, 744 F.2d

28 1452, 1461 (9th Cir. 1984) (citing Bell v. Wolfish, 441 U.S. 520 (1979)). The civil nature

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 35 of 40

1 of Plaintiffs’ confinement provides an important gloss on the meaning of “punitive,”

2 requiring that the Plaintiffs be afforded “more considerate treatment” than even pretrial

3 detainees, who are being criminally detained prior to trial. Cf. Estelle v. Gamble, 429

4 U.S. 97, 104, (1976); Youngberg v. Romeo, 457 U.S. 307, 321–22, (1982). The Court

5 must presume detainees are subjected to punishment if they are confined in conditions

6 identical to, similar to, or more restrictive than those under which the criminally

7 convicted are held. See Sharp v. Weston, 233 F.3d 1166, 1172–73 (9th Cir. 2000).

8

8. The Plaintiffs are civil detainees, who are confined under conditions

9 substantially worse than those imposed on detainees who are criminally convicted or

10 confined in immigration detention facilities. There is a presumption that the conditions of

11 confinement in CBP stations, Tucson Sector, are punitive.

12

9. In the absence of evidence of express intent to punish, the Court may infer

13 that the purpose of a particular restriction or condition is punishment if the restriction or

14 condition is not reasonably related to a legitimate governmental objective or is excessive

15 in relation to the legitimate governmental objective. Pierce, 526 F.3d at 1205 (citing Bell,

16 441 U.S. at 539); Demery, 378 F.3d at 1028 (citing Bell, 441 at 538). Legitimate non-

17 punitive justifications must, however, be specific to the penological interests involved in

18 the Plaintiffs’ detention, which here is for commitment as civil detainees in immigration-

19 type facilities. (Order (Doc. 383) at 10 (citing King v. Los Angeles County, 885 F.3d 548,

20 554-555 (9th Cir. 2018)).

21

10. The Court evaluates the conditions of confinement at issue in this case in

22 light of contemporary standards of decency “in reference to their severity and duration,”

23 with any “resulting injury being merely one factor that may suggest an unjustified

24 infliction of harm compared to being plausibly necessary.” (Order (Doc. 383) at 6-7

25 (citing Darnell v. Pineiro, 849 F.3d 17, 30 (2ndh Cir. 2018) (citing Hudson v. McMillian,

26

27

28

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 36 of 40

1 503 U.S. 1, 8 (1992)), see also Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003)

2 (citing same).

3

11. “Maintaining institutional security and preserving internal order and

4 discipline are essential goals that may require limitation or retraction of the retained

5 constitutional rights of both convicted prisoners and pretrial detainees.” Bell, 441 U.S. at

6 546; Pierce, 526 F.3d at 1205.

7

12. In the absence of substantial evidence that indicates officials have

8 exaggerated their responses, courts should ordinarily defer to the expert judgment of

9 correction officials to determine whether detention restrictions or conditions are

10 reasonably related to maintaining security and order and operating the institution in a

11 manageable fashion. Bell, 441 U.S. at 540 n. 23. The government does not need to show

12 an “exact fit” or proof that the policy in fact advances the legitimate governmental

13 objective, or even that it is the “least restrictive alternative.” Valdez v. Rosenbaum, 302

14 F.3d 1039, 1045 (9th Cir. 2002). The correction official must have reasonably thought that

15 the policy would advance a legitimate governmental objective. Id.

16

13. The government cannot assert a lack of resources defense against an

17 injunction because it is prospective relief, and the government may be compelled to

18 expand the pool of resources to remedy a constitutional violation. Peralta v. Dillard, 744

19 F.3d 1076, 1083 (9th Cir. 2014).

20

14. The Ninth Circuit views floor-sleeping, with or without a mattress, as

21 offending ‘basic’ concepts of decency, as well as reasonable respect for constitutional

22 rights.’” Thomas v. Baca, 514 F.Supp.2d 1201, 1216 (9th Cir. 2007) (citing Thompson v.

23 City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989), Rutherford v. Pitchess, 457 F. Supp.

24 104 (C.D. Cal. 1978)). “Quite simply, that a custom of leaving inmates nowhere to sleep

25 but the floor constitutes cruel and unusual punishment is nothing short of self-evident.”

26 Thomas, 514 F. Supp.2d at 1216.

27

15. In Thomas, the court excluded processing time from its mandate to provide

28 a bunk for the night immediately following the inmate’s initial processing within the

- 36 -

Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 37 of 40

1 facility or transfer to a medical center or other place of screening or treatment, and for

2 every night thereafter and held; a reasonable amount of time should not take more than

3 24 hours. Id. at 1219.

4

16. The Ninth Circuit recognizes an exigent circumstances exception for

5 constitutional violations, but this is a narrow exception and overcrowding or regular

6 classification considerations do not constitute exigent circumstances that would justify

7 floor-sleeping.” Exigent circumstances could justify floor-sleeping in response to “[a]

8 sudden, extreme rise in inmate population caused by an acute event, such as a civil

9 disturbance, may affect the length of time that is reasonable for processing. Oliver v.

10 Baca, 913 F.3d 852, 858 (9th Cir. 2019). The periodic surges occurring along the border

11 is a chronic condition and not an exigent exception to justify unconstitutional conditions

12 of confinement.

13

17. The Ninth Circuit instructs that the Court should look at the circumstances,

14 nature, and duration of an alleged deprivation. Johnson v. Lewis, 217 F.2d 726, 731 (9th

15 Cir. 2000). This approach is explained by the Second Circuit in Darnell v. Pineiro, 849

16 F.3d 17 (2nd Cir. 2018). See Turano v. County of Alameda, 2018 WL 5629341 *5 (N.D.

17 Cal. Oct. 30, 2018) (finding Darnell persuasive). “The more basic the particular need, the

18 shorter the time it can be withheld.” Hoptowit v. Ray, 682 F.2d 1237, 1259 (9th Cir.

19 1982).

20

18. There is no “static test” to determine whether a deprivation is sufficiently

21 serious to violate the Constitution. The Court evaluates the conditions themselves in light

22 of contemporary standards of decency. Darnell, 849 F.3d at 30 (citing Blissett v.

23 Coughlin, 66 F.3d 531, 537 (2d Cir. 1995); Rhodes v. Chapman, 452 U.S. 337, 346

24 (1981)). The Court analyzes allegedly unconstitutional conditions of confinement in

25 reference to their severity and duration, and resulting injury is merely one factor that may

26 suggest an unjustified infliction of harm compared to being plausibly necessary. Darnell,

27 849 F.3d at 30 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)), see also Martinez v.

28 Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (citing same).

- 37 -

Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 38 of 40

1

19. The Court follows the approach taken by the Second Circuit in Darnell,

2 wherein the court considered a temporary (between 10 to 24 hours) holding facility and

3 held that occasional and temporary deprivations of sanitary and temperate conditions,

4 without more, do not constitute a sufficiently serious deprivation to constitute

5 punishment, “‘but only when they have a mutually enforcing effect that produces the

6 deprivation of a single, identifiable human need such as food, warmth, or exercise.’”

7 Darnell, 849 F.3d at 30 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)). Conditions

8 of confinement are analyzed in combination, not in isolation, at least where one alleged

9 deprivation has a bearing on another. Darnell, 849 F.3d at 32 (citing Wilson, 501 U.S. at

10 304 (noting the synergy between cold temperatures and the failure to provide blankets in

11 establishing an Eighth Amendment violation)).

12

20. The Court looks through the lens of severity and duration to balance the

13 conditions of confinement at CBP facilities in the Tucson sector with the operational

14 needs of the CBP Tucson Sector. The severity of the exposure to sleeping on floor mats

15 in sometimes overcrowded cells that force detainees to sleep in the toilet area, coupled

16 with the alleged lack of warmth, clean clothes, showers, etc., may be less quantifiable

17 than duration “‘but [] qualitative offense to a [detainee’s] dignity [is] given due

18 consideration.’” Darnell, 849 F.3d at 31 (quoting Willey v. Kirkpatrick, 801 F.3d 51, 68

19 (2ndh Cir. 2017)).

20

21. Conditions of confinement, as they currently exist, in CBP holding rooms

21 that are worse than conditions of confinement in criminal and civil detention facilities are

22 reasonably related to CBP’s legitimate governmental interests in protecting the United

23 States border through interdiction and 24-7 processing operations to determine the

24 appropriate detention, civil or criminal, facility and transfer a detainee no longer than 48

25 hours. To the extent that the conditions of confinement are related to CBP’s legitimate

26 governmental interests, Defendants overcome the presumption that the conditions of

27 confinement are punitive because they are harsher than the conditions of confinement

28

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 39 of 40

1 faced by criminal, pretrial, and civil detainees held in jails, prisons, or ICE detention

2 facilities.

3

22. The severity of the existing conditions of confinement, separately and

4 aggregately, do not violate the Fifth Amendment to the extent that the duration of

5 confinement does not exceed the time necessary for CBP to process a detainee to

6 determine the appropriate transfer for either criminal detention to a jail or prison or civil

7 immigration detention at an ICE, ERO, HHS or other agency facility. The Court finds

8 that the reasonable time from book-in at a CBP station to “processing complete” is no

9 longer than 48 hours. As for this duration of time, Defendants have established that the

10 challenged conditions of confinement, separately and aggregately, are not excessive in

11 relation to the legitimate government interests of CBP 24-7 operations or the penological

12 interests involved in Plaintiffs civil detention in immigration facilities.

13

Accordingly,

14

IT IS ORDERED that the Court finds in favor of Plaintiffs and against

15 Defendants and GRANTS Plaintiff’s request for a permanent injunction. The Clerk of the

16 Court shall enter Judgment for Plaintiffs.

17

IT IS FURTHER ORDERED that CBP shall be enjoined from holding

18 detainees, who are “processing complete,” as defined herein, “no longer than 48 hours,

19 unless CBP provides conditions of confinement that meet basic human needs for sleeping

20 in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable

21 water, and medical assessments performed by a medical professional.

22

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/ / /

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Case 4:15-cv-00250-DCB Document 482 Filed 02/19/20 Page 40 of 40

1

IT IS FURTHER ORDERED that within 7 days of the filing date of this Order,

2 the Plaintiffs shall file a proposed Order for Permanent Injunction. The Defendants shall

3 have 7 days, thereafter, to file an Objection.

4

Dated this 19th day of February, 2020.

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 Case 4:15-cv-00250-DCB Document 494 Filed 04/17/20 Page 1 of 6

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

10 11 v.

Plaintiffs,

ORDER FOR: PERMANENT INJUNCTION

12 Kirstjen M Nielsen, et al.,

13

Defendants.

14

15

This Court has issued Findings of Fact and Conclusions of Law (Doc. 482) and

16 entered judgment in favor of Plaintiffs (Doc. 483). Good cause appearing,

17

Accordingly,

18

IT IS ORDERED that:

19

I. DEFINITIONS

20

The following terms and definitions shall apply to this Order:

21

a. “Adequate Food” shall mean food that has been evaluated and approved by a

22 registered dietitian and/or nutritionist to meet the dietary Detention-industry Standards for

23 maintaining Detainee health.

24

b. “Bed” shall mean a raised cot, bunkbed, or other similar structure with a mattress

25 which meets accepted Detention-industry Standards. A Mat placed directly on a floor is

26 not a Bed.

27

c. “Blanket” shall mean a cloth blanket, capable of being washed and reused. A

28 Mylar Blanket is not a Blanket.

Case 4:15-cv-00250-DCB Document 494 Filed 04/17/20 Page 2 of 6

1

d. “Book In” shall mean the time of a person’s first arrival at any CBP station as

2 entered in the e3 Detention Module (“e3DM”).

3

e. “Defendants” shall mean Chad Wolf, Acting Secretary of Homeland Security, in

4 his official capacity; Mark A. Morgan, Acting Commissioner, U.S. Customs and Border

5 Protection, in his official capacity; Carla L. Provost, Chief of United States Border Patrol,

6 in her official capacity; Roy D. Villareal, Chief Patrol Agent-Tucson Sector, in his official

7 capacity, their respective successors in office, and the agents and employees acting under

8 their authority and/or supervision.

9

f. “Detainee” shall mean an individual in CBP’s custody who is a class member in

10 the above-captioned action.

11

g. “Detention-industry Standard” shall mean standards applicable at a jail, prison

12 or ICE-detention facility.

13

h. “Exigent Circumstances” shall be narrowly construed and mean any exceptional,

14 sudden, and unforeseeable events caused by an acute event outside of CBP’s control that

15 temporarily precludes CBP’s full compliance with the terms of this Order, including, for

16 instance, Acts of God/natural disasters; other emergencies (fires, terrorism, etc.); full or

17 partial government shutdown; or public health concerns in a particular facility. Periodic

18 surges that occur along the border are a chronic condition that do not constitute Exigent

19 Circumstances.

20

i. “Order” shall mean this Order.

21

j. “Logistical Impossibility” shall mean that CBP is unable to transfer a Processing

22 Complete Detainee to the appropriate receiving agency because that agency is

23 operationally closed, such as during the night, weekends and holidays, and closures due to

24 exigent circumstances like those described above.

25

k. “Mat” shall mean a mattress or pad which can be disinfected and cleaned. A Mat

26 shall include those currently being provided as of this Order in the Tucson Sector.

27

l. “Medical Professional” shall mean an advanced practice provider (a physician,

28 physician assistant, nurse practitioner, or a registered nurse) and medical technicians

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Case 4:15-cv-00250-DCB Document 494 Filed 04/17/20 Page 3 of 6

1 (certified Emergency Medical Technician, paramedic, licensed practical nurse, licensed

2 vocational nurse), working under the direct supervision of the advanced practice provider

3 when performing medical assessments.

4

m. “Parties” shall mean Plaintiffs and Defendants collectively in the above-

5 captioned action.

6

n. “Plaintiffs” shall mean plaintiff class members in the above captioned action.

7

o. “Potable Water” shall mean water safe for human consumption and so labeled.

8

p. “Processing Complete” shall mean that the Detainee has been processed by CBP

9 and the receiving agency has been identified.

10

q. “Shower” shall mean a bath or stall in which water is showered—i.e., wet with a

11 spray, fine stream, or drops—on the body. A Paper Shower is not a Shower.

12

r. “Time in Detention” shall mean time in Tucson Sector CBP custody, calculated

13 from first Book In at a Tucson Sector Border Patrol station. Temporary book-outs to a

14 hospital, jail, or any other facility will not be counted as Time in Detention and will not be

15 included in the 48-hour calculation.

16

s. “Station” shall Tucson Sector Border Patrol Stations.

17

18

II. CONDITIONS OF CONFINEMENT

19

1. U.S. Customs and Border Protections (“CBP”) shall be permanently enjoined

20 from holding Processing Complete Detainees whose Time In Detention in Tucson Sector

21 CBP facilities is longer than 48 hours, unless CBP provides conditions of confinement to 22 meet Detainees’ basic human needs, pursuant to Detention-industry Standards for the

23 following:

24

a. Bed and Blanket for sleeping;

25

b. Showers;

26

c. Adequate Food;

27

d. Potable Water; and

28

e. Medical assessment by a Medical Professional.

- 3 -

Case 4:15-cv-00250-DCB Document 494 Filed 04/17/20 Page 4 of 6

1

2. Defendants shall continue to provide Detainees with the items in ¶ 1a.–d. of

2 this Order until Detainees are transferred to another agency, repatriated, released, or

3 otherwise no longer in CBP custody in Tucson Sector Border Patrol facilities. In particular,

4 conditions of confinement shall be provided pursuant to Detention-industry Standards for

5 cleanliness and sanitation.

6

3. Defendants shall be enjoined from overcrowding hold rooms to the extent

7 that Detainees (regardless of Time in Custody) are sleeping within toilet areas. Mat-

8 sleeping shall be prohibited in hold room toilet areas.

9

4. When Mats are in use inside a hold room, Defendants shall make every effort

10 not to exceed hold room Mat capacities, which are based on the number of Mats that can

11 be fully unfolded on the floor with minimal or no overlapping, and with sufficient clearance

12 to and from the cell door, toilet(s), and drinking water. If operational necessity requires

13 Defendants to exceed the Mat capacities, Defendants shall make every effort to limit the

14 period during which Mat capacities are exceeded. Operational necessity shall not excuse

15 Defendants from failing to redistribute Detainees when there are empty or underused hold

16 rooms. To prevent overcrowding, Defendants may retrieve Mats from Detainees so long

17 as no Detainee is deprived of a Mat for more than 12 hours in any 24-hour period.

18

5. The sleeping, personal hygiene, medical provisions, of the Preliminary

19 Injunction (Order (Doc. 244) at 28 ¶¶ 1-4) are hereby made permanent.

20

6. Logistical Impossibility preventing transfer of a Detainee within 48 hours

21 shall not be construed to extend beyond a third night, with the transfer occurring the next

22 business day.

23

7. Exigent Circumstances may temporarily excuse compliance with ¶ 1 of this

24 Order only as long as the Exigent Circumstances last, plus a reasonable amount of time

25 following the conclusion of the Exigent Circumstances for Defendants to return to

26 compliance.

27

28

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Case 4:15-cv-00250-DCB Document 494 Filed 04/17/20 Page 5 of 6

1

III. MONITORING AND E3DM DOCUMENTATION

2

8. Defendants shall track, and document in e3DM, the time that an individual

3 Detainee is booked into a Tucson Sector Border Patrol station and the time that the

4 Detainee becomes Processing Complete. Defendants shall ensure that for each individual,

5 Tucson Sector Border Patrol is able to identify, using e3DM, if the individual is Processing

6 Complete at 48 hours. Tucson Sector Border Patrol will ensure that Detainees who have

7 reached 48 hours in custody from Book In are Processing Complete as soon as reasonably

8 possible. Defendants shall track, and document in e3DM, the time when a Processing

9 Complete Detainee is provided the basic human needs guaranteed for Processing Complete

10 Detainees held for more than 48 hours, as required by ¶ 1 of this Order.

11

9. Defendants shall track and document the beginning, end, and nature of any

12 Exigent Circumstances.

13

10. The 12-hour conditions of confinement provisions imposed by the Court’s

14 Preliminary Injunction (Order (Doc. 244), made permanent herein, supra ¶ 5, shall

15 continue to be tracked, documented and monitored through the use of e3DM data. There

16 shall be no requirement going forward for video tracking and monitoring, or preservation

17 and exchange of video recordings.

18

11. Defendants will provide Plaintiffs with the above described e3DM data on a

19 quarterly basis for a period of 24 months following the entry of this order. Plaintiffs may

20 request class access visits, under the same terms as such visits have been provided during

21 the course of this litigation, on a quarterly basis for a period of 24 months following the

22 entry of this order. For at least two years following the entry of this order, Defendants will

23 conduct internal compliance evaluations performed by the TCA Policy & Compliance

24 Division and provide them to Plaintiffs for at least two years following the entry of this

25 order.

26

IV. EFFECTIVE DATE

27

12. The Order shall become effective upon entry by the Court, with Defendants

28 having 90 days from the filing date of this Order to attain full compliance. The Defendants

- 5 -

Case 4:15-cv-00250-DCB Document 494 Filed 04/17/20 Page 6 of 6

1 shall file a status report with the Court every 30 days until full compliance is attained.

2

13. Defendants shall ensure that a copy of this Order is kept at all Stations in a

3 location accessible to CBP agents. Defendants shall ensure that all Tucson Sector CBP

4 agents carrying out custodial duties receive and read the Order.

5

IT IS FURTHER ORDERED that this Court retains jurisdiction to reopen this

6 case and return it to the Court’s active docket to enforce its Orders, the Permanent

7 Injunction and Judgment entered in this action

8

IT IS FURTHER ORDERED that the framing of relief provided herein is no

9 broader than required by law and the precise facts of this case. See Friends of the Earth v.

10 Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 193 (2000).

11

SO ORDERED.

12

Dated this 17th day of April, 2020.

13

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- 6 -

 
 Case 4:15-cv-00250-DCB Document 518 Filed 11/18/20 Page 1 of 2

1 WO

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE DISTRICT OF ARIZONA

6

7 Unknown Parties, et al.,

No. CV-15-00250-TUC-DCB

8

Plaintiffs,

ORDER

9 v.

10 Kirstjen M Nielsen, et al.,

11

Defendants.

12

13

On September 11, 2020, the Plaintiffs filed a Report Regarding Apparent

14 NonCompliance with Permanent Injunction (Doc. 507). On September 23, 2020, the 15 Defendants filed a Response explaining that the referenced “apparent noncompliance” in

16 large part occurred prior to the July 16, 2020, effective date of the Permanent Injunction, 17 and were caused due to incomplete e3DM data, pending upgrades being made to comply 18 with the Permanent Injunction. Additionally, three exigent circumstances caused facilities 19 to be closed for deep cleaning due to COVID-19 outbreaks on May 30-31, June 14-15, and

20 June 29-30. The Defendants note that Plaintiffs did not seek to meet and confer prior to 21 filing the Report of Noncompliance, but gave Defendants a week to add their position to

22 the Report. Instead, Defendants filed a Response (Doc. 512).

23

This case is closed. Judgment was entered on February 19, 2020, (Doc. 483), and

24 subsequently, the Court entered the Permanent Injunction, (Doc 494). The Court retained

25 jurisdiction over the case to enforce its Orders, including the Permanent Injunction and

26 Judgment. (Order (Doc. 494). As noted by the Defendants, the Court allowed time to 27 comply with the Permanent Injunction until July 16, 2020. The Defendants were instructed

28 to file status reports until compliance was attained. On July 15, 2020, the Defendants filed

Case 4:15-cv-00250-DCB Document 518 Filed 11/18/20 Page 2 of 2

1 the Final Status Report, reporting full compliance. Nothing was filed by the Plaintiffs until

2 the September 11, 2020, Report Regarding Apparent Noncompliance with the Permanent

3 Injunction (Doc. 507). The Plaintiffs did not Reply to the Defendants’ explanations for the

4 alleged noncompliance. The Report was not accompanied by a motion to compel invoking

5 the Court’s limited jurisdiction, which it has retained.

6

It is well established that the Court has “inherent power to enforce compliance with

7 [its] lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370,

8 (1966). Additionally, Fed.R.Civ.P. 70(e) provides that, “[t]he court may also hold a

9 disobedient party in contempt.” “The standard for holding a party in civil contempt is well

10 settled.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir.1999). The burden is

11 on the moving party to show by clear and convincing evidence that the contemnor violated

12 a specific and definite order of the court. Id.; In Re Bennett, 298 F.3d 1059, 1069 (9th

13 Cir.2002)). Violation of a court order is shown by the party's “failure to take all reasonable

14 steps within the party's power to comply.” In Re Bennett, 298 F.3d at 1069.

15

Until or unless the Plaintiffs seek to invoke this Court’s enforcement powers, this

16 case is closed and filing reports in it is not appropriate because “[a] final judgment may be

17 reopened only in narrow circumstances.” Henderson v. Shinseki, 562 U.S. 428, 440 (2011).

18 Under the circumstances, the Court does not take any action in response to the Report

19 Regarding Apparent NonCompliance with Permanent Injunction (Doc. 507).

20

Accordingly,

21

IT IS ORDERED that the parties shall not file in this closed case, except and unless

22 necessary to secure compliance with the Permanent Injunction, the Judgment, or any Order

23 of the Court.

24

Dated this 18th day of November, 2020.

25

26

27

28

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U.S. District Court DISTRICT OF ARIZONA (Tucson Division) CIVIL DOCKET FOR CASE #: 4:15-cv-00250-DCB

Unknown Parties et al v. Wolf et al Assigned to: Senior Judge David C Bury Case in other court: 9TH CCA, 17-15381
9TH CCA, 17-15381, 17-15383 9th CCA, 20-15741 9th CCA, 20-15890 Cause: 28:1331 Federal Question: Bivens Act

Date Filed: 06/08/2015 Date Terminated: 02/19/2020 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: U.S. Government Defendant

Plaintiff
Unknown Parties named as Jane Doe #1 and Jane Doe #2, on behalf of themselves and all others similarly situated

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131 Steuart St., Ste. 400 San Francisco, CA 94105 415-543-9444 207 Fax: 415-543-0296 Email: tsilva@lccr.com TERMINATED: 09/27/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Lopez ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-773-6043 Email: vlopez@acluaz.org TERMINATED: 06/01/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Reichlin-Melnick American Immigration Council 1331 G St. NW, Ste. 200 Washington, DC 20005 202-507-7505 Fax: 202-742-5619 Email: AReichlinMelnick@immcouncil.org TERMINATED: 07/13/2018 ATTORNEY TO BE NOTICED
Aleyda Yvette Borja ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-650-1854 Email: yborja@acluaz.org ATTORNEY TO BE NOTICED
Brenda Munoz Furnish ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-650-1854 Email: bmfurnish@acluaz.org TERMINATED: 06/13/2018 ATTORNEY TO BE NOTICED

Christine Keeyeh Wee ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-650-1854 Email: cwee@acluaz.org ATTORNEY TO BE NOTICED
James J Cekola Morrison & Foerster LLP - San Diego, CA 12531 High Bluff Dr., Ste. 100 San Diego, CA 92130 858-314-7631 Fax: 858-720-5125 Email: cekolaj@higgslaw.com TERMINATED: 05/05/2017 ATTORNEY TO BE NOTICED
Kathleen E Brody ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-650-1854 Fax: 602-650-1376 Email: kbrody@acluaz.org TERMINATED: 08/14/2019 ATTORNEY TO BE NOTICED
Martin Lieberman ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602-773-6011 Email: mlieberman@acluaz.org TERMINATED: 12/17/2019 ATTORNEY TO BE NOTICED
Robert Esposito Morrison & Foerster LLP - San Francisco, CA 425 Market St. San Francisco, CA 94105-2482 415-268-7000 Fax: 415-268-7522

Plaintiff
Norlan Flores on behalf of themselves and all others similarly situated

Email: resposito@mofo.com TERMINATED: 05/03/2018 ATTORNEY TO BE NOTICED
Samuel Christopher Cortina Morrison & Foerster LLP - San Diego, CA 12531 High Bluff Dr., Ste. 100 San Diego, CA 92130 858-720-5100 Fax: 858-720-5125 Email: scortina@mofo.com TERMINATED: 08/03/2018 ATTORNEY TO BE NOTICED
William Bradford Peard ACLU - Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 520-256-5387 Email: bpeard@acluaz.org TERMINATED: 05/21/2019 ATTORNEY TO BE NOTICED
represented by Alvaro M Huerta (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bree Bernwanger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Colette Reiner Mayer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Joseph Pochoda (See above for address) TERMINATED: 04/04/2017

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elisa Della-Piana (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Gilmore Balassone (See above for address) TERMINATED: 02/13/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) TERMINATED: 02/02/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harold J McElhinny (See above for address) TERMINATED: 12/27/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jack Williford Londen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Duff Lyall (See above for address) TERMINATED: 07/22/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Sebastiano Douglass (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Cassandra Tumlin

(See above for address) TERMINATED: 11/02/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karolina J Walters (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Martin Coles (See above for address) TERMINATED: 12/09/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) TERMINATED: 08/18/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Louise Carita Stoupe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan Sallomi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Ellen Crow (See above for address) TERMINATED: 02/09/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nora A Preciado (See above for address) TERMINATED: 09/25/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Pieter S DeGanon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis Silva (See above for address) TERMINATED: 09/27/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Lopez (See above for address) TERMINATED: 06/01/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Reichlin-Melnick (See above for address) TERMINATED: 07/13/2018 ATTORNEY TO BE NOTICED
Aleyda Yvette Borja (See above for address) ATTORNEY TO BE NOTICED
Brenda Munoz Furnish (See above for address) TERMINATED: 06/13/2018 ATTORNEY TO BE NOTICED
Christine Keeyeh Wee (See above for address) ATTORNEY TO BE NOTICED
James J Cekola (See above for address) TERMINATED: 05/05/2017 ATTORNEY TO BE NOTICED

Kathleen E Brody (See above for address) TERMINATED: 08/14/2019 ATTORNEY TO BE NOTICED
Martin Lieberman (See above for address) TERMINATED: 12/17/2019 ATTORNEY TO BE NOTICED
Robert Esposito (See above for address) TERMINATED: 05/03/2018 ATTORNEY TO BE NOTICED
Samuel Christopher Cortina (See above for address) TERMINATED: 08/03/2018 ATTORNEY TO BE NOTICED
William Bradford Peard (See above for address) TERMINATED: 05/21/2019 ATTORNEY TO BE NOTICED

V.
Defendant
Kirstjen M Nielsen Secretary of the U.S. Department of Homeland Secuirty, in her official capacity TERMINATED: 05/23/2019

represented by Christina Parascandola US Dept of Justice P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-514-3097 Email: christina.parascandola@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez US Dept of Justice - Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-514-0120

Fax: 202-305-7000 Email: katelyn.masetta.alvarez@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian US Dept of Justice P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-532-4824 Email: sarah.b.fabian@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield US Dept of Justice - Civil Division 878 P.O. Box Ben Franklin Station Washignton, DC 20044 202-532-4737 Fax: 202-616-4975 Email: carlton.f.sheffield@usdoj.gov TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Colin Kisor US Dept of Justice P.O. Box 868 - Ben Franklin Station Washington, DC 20001 202-532-4331 Email: colin.kisor@usdoj.gov TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Dillon Fishman US Dept of Justice - Office of Immigration Litigation P.O. Box 868 Washington, DC 20007 202-598-2377 Fax: 202-305-7000 Email: dillon.a.fishman@usdoj.gov TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED

Michael Anthony Celone US Dept of Justice P.O. Box 868 Washington, DC 20044 202-305-2040 Fax: 202-305-7000 Email: michael.a.celone@usdoj.gov ATTORNEY TO BE NOTICED
Sarah Lake Vuong US Dept of Justice - Civil Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-532-4281 Email: sarah.l.vuong@usdoj.gov TERMINATED: 05/22/2018 ATTORNEY TO BE NOTICED
William Charles Silvis US Department of Justice Civil Division Office of Immigration Litigation 450 5th St NW Washington, DC 20001 202-307-4693 Fax: 202-305-7000 Email: william.silvis@usdoj.gov ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh US Dept of Justice - OIL P.O. Box 878 Ben Franklin Station Washington, DC 20037 202-305-9802 Fax: 202-305-1890 Email: Daniel.Shieh@usdoj.gov TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Yamileth G Davila US Dept of Justice P.O. Box 878 Ben Franklin Station Washington, DC 20044 202-305-0137 Fax: 202-616-4905

Defendant
R Gil Kerlikowske Commissioner, United States Customs & Border Protection, in his official capacity TERMINATED: 11/15/2017

Email: yamileth.g.davila@usdoj.gov TERMINATED: 07/05/2018 ATTORNEY TO BE NOTICED
represented by Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Dillon Fishman (See above for address) TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) ATTORNEY TO BE NOTICED
Sarah Lake Vuong (See above for address) TERMINATED: 05/22/2018 ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address)

Defendant
Michael J Fisher Chief of the United States Border Patrol, in his official capacity TERMINATED: 11/15/2017

ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh (See above for address) TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 07/05/2018 ATTORNEY TO BE NOTICED
represented by Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Dillon Fishman (See above for address) TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jeffrey Self Chief Patrol Agent-Tucson Sector, in his official capacities TERMINATED: 01/14/2020

Sarah Lake Vuong (See above for address) TERMINATED: 05/22/2018 ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh (See above for address) TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 07/05/2018 ATTORNEY TO BE NOTICED
represented by Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED

Defendant
Manuel Padilla, Jr. Chief Patrol Agent-Tucson Sector, in his official capacity TERMINATED: 11/15/2017

Dillon Fishman (See above for address) TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) ATTORNEY TO BE NOTICED
Sarah Lake Vuong (See above for address) TERMINATED: 05/22/2018 ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh (See above for address) TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 07/05/2018 ATTORNEY TO BE NOTICED
represented by Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address)

Defendant
Kevin K McAleenan Acting Secretary, United States Department of Homeland Security and Commissioner, United States Custom & Border Protection, in both official capacities TERMINATED: 01/14/2020

TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Dillon Fishman (See above for address) TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) ATTORNEY TO BE NOTICED
Sarah Lake Vuong (See above for address) TERMINATED: 05/22/2018 ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
Woei-Tyng Daniel Shieh (See above for address) TERMINATED: 11/09/2016 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 07/05/2018 ATTORNEY TO BE NOTICED
represented by Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Parascandola (See above for address) LEAD ATTORNEY

Defendant
Carla L Provost Chief of United States Border Patrol, in her official capacity

ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Lake Vuong (See above for address) TERMINATED: 05/22/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 07/05/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Rodolfo Karisch Arizona Joint Field Command &

Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Lake Vuong (See above for address) TERMINATED: 05/22/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 07/05/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020

Chief Patrol Agent-Tucson Sector TERMINATED: 05/23/2019
Defendant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Lake Vuong (See above for address) TERMINATED: 05/22/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 07/05/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED

Chad Wolf Acting United States Department of Homeland Security
Defendant Mark Morgan Acting Commissioner, United States Custom and Border Protection

represented by Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
represented by Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address)

Defendant
Roy Villareal Commander, Arizona Joint Field Command and Chief Patrol AgentTucson Sector

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Michael Anthony Celone (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
represented by Christina Parascandola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katelyn Masetta-Alvarez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlton Frederick Sheffield (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED
Colin Kisor (See above for address) TERMINATED: 10/27/2020 ATTORNEY TO BE NOTICED

Intervenor Phoenix Newspapers Incorporated

Michael Anthony Celone (See above for address) ATTORNEY TO BE NOTICED
William Charles Silvis (See above for address) ATTORNEY TO BE NOTICED
represented by David Jeremy Bodney Ballard Spahr LLP - Phoenix, AZ 1 E Washington St., Ste. 2300 Phoenix, AZ 85004-2555 602-798-5400 Fax: 602-798-5595 Email: bodneyd@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/08/2015
06/08/2015 06/08/2015
06/08/2015 06/08/2015

# Docket Text
1 COMPLAINT. Filing fee received: $ 400.00, receipt number 097011767191 filed by Unknown Parties, Norlan Flores. (Lyall, James) (Attachments: # 1 Civil Cover Sheet, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration) (KEP) (Entered: 06/09/2015)
2 Additional Attachments to Main Document re: 1 Complaint by Plaintiffs Norlan Flores, Unknown Parties. (Lyall, James) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (KEP) (Entered: 06/09/2015)
3 Filing fee paid, receipt number 0970-11767191. This case has been assigned to the Honorable David C. Bury. All future pleadings or documents should bear the correct case number: 4:15-CV-00250-TUCDCB. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (KEP) (Entered: 06/09/2015)
4 MOTION for Class Certification by Norlan Flores, Unknown Parties. (Lyall, James) (Attachments: # 1 Text of Proposed Order)(KEP) (Entered: 06/09/2015)
8 NOTICE OF ASSIGNMENT: (KEP) (Entered: 06/10/2015)

06/09/2015 06/09/2015 06/09/2015 06/11/2015 06/11/2015
06/11/2015 06/11/2015 06/11/2015

5 MOTION for Admission Pro Hac Vice as to attorney Linton Joaquin by Norlan Flores, Unknown Parties. (Joaquin, Linton) (Entered: 06/09/2015)
6 MOTION for Admission Pro Hac Vice as to attorney Karen C. Tumlin by Norlan Flores, Unknown Parties. (Tumlin, Karen) (Entered: 06/09/2015)
7 MOTION for Admission Pro Hac Vice as to attorney Nora A. Preciado by Norlan Flores, Unknown Parties. (Preciado, Nora) (Entered: 06/09/2015)
PRO HAC VICE FEE PAID. $ 105, receipt number PHX159542 as to Nora A Preciado, Karen Cassandra Tumlin, Linton Joaquin. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/11/2015)
9 ORDER pursuant to General Order 09-08 granting 5 Motion for Admission Pro Hac Vice; granting 6 Motion for Admission Pro Hac Vice; granting 7 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/11/2015)
10 MOTION for Admission Pro Hac Vice as to attorney Elizabeth Balassone on behalf of plaintiffs Norlan Flores, and Unknown Parties. (BAS) (Entered: 06/11/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX159543 as to Elizabeth Gilmore Balassone. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/11/2015)
11 ORDER pursuant to General Order 09-08 granting 10 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/11/2015)

06/11/2015
06/11/2015
06/15/2015 06/15/2015 06/15/2015 06/16/2015 06/16/2015 06/16/2015 06/17/2015 06/17/2015 06/17/2015

12 SUMMONS Submitted by Norlan Flores, Unknown Parties. (Attachments: # 1 Summons to Defendant R. Gil Kerlikowske, # 2 Summons to Defendant Michael J. Fisher, # 3 Summons to Defendant Jeffrey Self, # 4 Summons to Defendant Manuel Padilla)(McElhinny, Harold) (Entered: 06/11/2015)
13 Summons Issued as to All Defendants. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(SIB). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 06/11/2015)
14 MOTION for Admission Pro Hac Vice as to attorney Pieter S deGanon on behalf of plaintiffs Norlan Flores, and Unknown Parties. (BAS) (Entered: 06/17/2015)
15 MOTION for Admission Pro Hac Vice as to attorney Louise Stoupe on behalf of plaintiffs Norlan Flores, and Unknown Parties. (BAS) (Entered: 06/17/2015)
16 MOTION for Admission Pro Hac Vice as to attorney Travis Silva on behalf of plaintiffs Norlan Flores, and Unknown Parties. (BAS) (Entered: 06/17/2015)
19 MOTION for Admission Pro Hac Vice as to attorney Colette Reiner Mayer on behalf of Norlan Flores, and Unknown Parties. (BAS) (Entered: 06/17/2015)
20 MOTION for Admission Pro Hac Vice as to attorney Kevin Martin Coles on behalf of Norlan Flores, and Unknown Parties. (BAS) (Entered: 06/17/2015)
21 MOTION for Admission Pro Hac Vice as to attorney Harold J McElhinny on behalf of Norlan Flores, and Unknown Parties. (BAS) (Entered: 06/17/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX159625 as to Pieter S DeGanon. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX159626 as to Louise Stoupe. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX159627 as to Travis Silva. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2015)

06/17/2015
06/17/2015 06/17/2015 06/17/2015 06/17/2015 06/17/2015
06/17/2015 06/19/2015

17 ORDER pursuant to General Order 09-08 granting 14 Motion for Admission Pro Hac Vice; granting 15 Motion for Admission Pro Hac Vice; granting 16 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/17/2015)
18 NOTICE OF ATTORNEY APPEARANCE: Sarah B. Fabian appearing for Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. . (Fabian, Sarah) (Entered: 06/17/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX159733 as to Colette Reiner Mayer. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX159734 as to Kevin M Coles. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX159732 as to Harold J McElhinny. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2015)
22 ORDER pursuant to General Order 09-08 granting 19 Motion for Admission Pro Hac Vice; granting 20 Motion for Admission Pro Hac Vice; granting 21 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/17/2015)
23 NOTICE OF ATTORNEY APPEARANCE: Dillon A. Fishman appearing for Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. . (Fishman, Dillon) (Entered: 06/17/2015)
24 ORDER that Defendants must answer the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil

06/23/2015 06/23/2015 06/23/2015 06/23/2015
06/24/2015 06/24/2015 06/29/2015

Procedure. See attached Order for complete details. Signed by Senior Judge David C Bury on 6/16/2015. (MFR) (Entered: 06/19/2015)
25 MOTION for Discovery Plaintiffs' Motion For Expedited Discovery; Memorandum of Points And Authorities by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order [Proposed] Order Granting Plaintiffs' Motion For Expedited Discovery)(McElhinny, Harold) (Entered: 06/23/2015)
26 DECLARATION of Kevin M. Coles In Support Of Plaintiffs' Motion For Expedited Discovery re: 25 MOTION for Discovery Plaintiffs' Motion For Expedited Discovery; Memorandum of Points And Authorities by Plaintiffs Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit Index of Exhibits and Exhibits AU)(McElhinny, Harold) (Entered: 06/23/2015)
27 MOTION for Protective Order Motion To Proceed Under Pseudonyms And For A Protective Order by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order [Proposed] Order Granting Plaintiffs' Motion To Proceed Under Pseudonyms And For A Protective Order)(McElhinny, Harold) (Entered: 06/23/2015)
28 DECLARATION of Elizabeth Balassone In Support Of Plaintiffs' Motion To Proceed Under Pseudonyms And For A Protective Order re: 27 MOTION for Protective Order Motion To Proceed Under Pseudonyms And For A Protective Order by Plaintiffs Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit Index of Exhibits to Elizabeth Balassone Declaration In Support Of Motion To Proceed Under Pseudoymns And For A Protective Order)(McElhinny, Harold) (Entered: 06/23/2015)
29 SERVICE EXECUTED filed by Norlan Flores, Unknown Parties: Certificate of Service re: Summons, Complaint (See Attachment A for List of Documents) upon Jeffrey Self on June 12, 2015. (Balassone, Elizabeth) (Entered: 06/24/2015)
30 SERVICE EXECUTED filed by Norlan Flores, Unknown Parties: Certificate of Service re: Summons, Complaint (See Attachment A for List of Documents) upon Manuel Padilla, Jr. on June 12, 2015. (Balassone, Elizabeth) (Entered: 06/24/2015)
31 First MOTION for Extension of Time to File Response/Reply as to 4 MOTION to Certify Class Unopposed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Fabian, Sarah) (Entered: 06/29/2015)

06/29/2015
07/01/2015 07/01/2015 07/01/2015 07/01/2015 07/01/2015 07/01/2015 07/01/2015
07/03/2015

32 ORDER granting 27 Motion To Proceed Under Pseudonyms and for a Protective Order. Plaintiffs Jane Doe #1 and Jane Doe # 2 may proceed in this action under pseudonyms. All parties shall use Plaintiff Jane Doe #1s and Jane Doe # 2s pseudonyms in all documents filed in this action. Dated this 29th day Signed by Senior Judge David C Bury on 6/29/2015.(BAR) (Entered: 06/29/2015)
33 MOTION for Admission Pro Hac Vice as to attorney Mary Kenney on behalf of plaintiffs Norlan Flores, and Unknown Parties. (BAS) (Entered: 07/01/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX160259 as to Mary Kenney. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/01/2015)
34 MOTION for Admission Pro Hac Vice as to attorney Emily Creighton on behalf of plaintiffs Norlan Flores, and Unknown Parties. (BAS) (Entered: 07/01/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX160257 as to Emily Creighton. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/01/2015)
35 MOTION for Admission Pro Hac Vice as to attorney Melissa Crow on behalf of plaintiffs Norlan Flores, and Unknown Parties. (BAS) (Entered: 07/01/2015)
PRO HAC VICE FEE PAID. $ 35, receipt number PHX160256 as to Melissa Ellen Crow. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/01/2015)
36 ORDER pursuant to General Order 09-08 granting 33 Motion for Admission Pro Hac Vice; granting 34 Motion for Admission Pro Hac Vice; granting 35 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/01/2015)
37 Second MOTION for Extension of Time to File Response/Reply as to 4 MOTION to Certify Class, 31 First MOTION for Extension of Time to File Response/Reply as to 4 MOTION to Certify Class Unopposed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr,

07/06/2015 07/07/2015
07/13/2015 07/14/2015 07/21/2015 07/27/2015
07/28/2015 08/10/2015

Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Fishman, Dillon) (Entered: 07/03/2015)
38 ORDER granting 31 Motion for Extension of Time to 7/14/2015 to File the Response to the 4 MOTION to Certify Class. Signed by Senior Judge David C Bury on 7/6/2015.(BAR) (Entered: 07/06/2015)
39 RESPONSE in Opposition re: 25 MOTION for Discovery Plaintiffs' Motion For Expedited Discovery; Memorandum of Points And Authorities filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit Padilla Declaration)(Fabian, Sarah) (Entered: 07/07/2015)
40 REPLY re: 25 MOTION for Discovery Plaintiffs' Motion For Expedited Discovery; Memorandum of Points And Authorities by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 07/13/2015)
41 RESPONSE in Opposition re: 4 MOTION to Certify Class filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fishman, Dillon) (Entered: 07/14/2015)
42 REPLY re: 4 MOTION to Certify Class Reply In Support of Plaintiffs' Motion For Class Certification by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 07/21/2015)
43 STATEMENT of Recent Decision In Support of Plaintiffs' Motions for Class Certification and For Expedited Discovery re: 4 MOTION to Certify Class, 25 MOTION for Discovery Plaintiffs' Motion For Expedited Discovery; Memorandum of Points And Authorities by Plaintiffs Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit 1 Flores Order)(McElhinny, Harold) (Entered: 07/27/2015)
44 RESPONSE re: 43 Statement in Opposition by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fishman, Dillon) (Entered: 07/28/2015)
45 ORDER that the Plaintiffs Motion for Expedited Discovery is set for oral argument at a telephonic hearing on Thursday, August 13, 2015 at 9:30 am. IT IS FURTHER ORDERED that the oral argument shall be held telephonically before the Honorable David C. Bury in Courtroom 6B, Sixth Floor, Evo A. DeConcini United States Courthouse, 405 W. Congress Street, Tucson, Arizona. Signed by Senior Judge David C Bury on 8/10/2015. (See Order for details) (KEP) (Entered: 08/10/2015)

08/13/2015
08/13/2015 08/13/2015
08/14/2015 08/14/2015 08/14/2015

46 MINUTE ENTRY for Motion Hearing held on 8/13/2015 before Senior Judge David C. Bury: Re: 25 MOTION for Discovery Plaintiffs' Motion For Expedited Discovery; Memorandum of Points And Authorities filed by Unknown Parties, Norlan Flores. Oral arguements heard. Formal order shall follow.
APPEARANCES: Telephonic appearance by Harold J McElhinny for Plaintiffs. Telephonic appearance by Sara Fabian for Defendants (Court Reporter Cindy Shearman) Hearing held 9:35 AM to 10:45 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MLH) (Entered: 08/13/2015)
47 TRANSCRIPT REQUEST by Norlan Flores, Unknown Parties for proceedings held on 8/13/2015, Judge David C Bury hearing judge(s). (McElhinny, Harold) (Entered: 08/13/2015)
48 TRANSCRIPT of MOTION HEARING held on 08/13/2015, before Judge DAVID C. BURY. Court Reporter Cindy J. Shearman. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/3/2015. Redacted Transcript Deadline set for 9/14/2015. Release of Transcript Restriction set for 11/12/2015. (CSL) (Entered: 08/13/2015)
49 TRANSCRIPT REQUEST (for telephonic pretrial hearing) by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self for proceedings held on 8/13/15, Judge David C Bury hearing judge(s). (Fishman, Dillon) (Entered: 08/14/2015)
50 AMENDED TRANSCRIPT REQUEST by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self for proceedings held on 8/13/15, Judge David C Bury hearing judge(s). (Fishman, Dillon) Modified on 8/14/2015 (CSL). (Entered: 08/14/2015)
51 ORDER granting 25 Motion for Expedited Discovery. IT IS FURTHER ORDERED the Plaintiffs are granted permission to conduct expedited discovery. Defendants shall not destroy or record over any video surveillance tapes of any and all detainee holding areas and shall preserve such surveillance tapes currently in their possession. Pending entry of a formal Protective Order to be drafted by the Defendants, the Plaintiffs stipulate that this expedited discovery shall be for "attorney eyes only." The Defendant shall draft a Protective Order to address the privacy issues that may arise during discovery in this case. That on or

08/14/2015 08/19/2015 08/21/2015 08/27/2015 08/28/2015 08/28/2015 09/01/2015
09/02/2015

before the close of business on Thursday, August 20, 2015, the Defendants shall produce the daily logs and video list logs. Defendants shall accommodate the Plaintiffs with respect to completing the expedited discovery within 22 days, including holidays and weekends, of August 14, 2015. Signed by Senior Judge David C Bury on 8/14/2015. (See Order for details) (KEP) (Entered: 08/14/2015)
52 MOTION to Dismiss Case by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit)(Fishman, Dillon) (Entered: 08/14/2015)
53 NOTICE re: Facts Regarding Discovery Order Compliance by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self re: 51 Order on Motion for Discovery . (Attachments: # 1 Exhibit)(Fishman, Dillon) (Entered: 08/19/2015)
54 STIPULATION re: 51 Order on Motion for Discovery to extend time for site inspections by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Fishman, Dillon) (Entered: 08/21/2015)
55 NOTICE re: of Facts Regarding Compliance With Court Order by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self . (Attachments: # 1 Exhibit Allen Declaration, # 2 Exhibit Shivers Declaration)(Fabian, Sarah) (Entered: 08/27/2015)
56 MOTION for Sanctions by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order [Proposed] Order Granting Plaintiffs' Motion for Sanctions)(McElhinny, Harold) (Entered: 08/28/2015)
57 DECLARATION of Colette R. Mayer re: 56 MOTION for Sanctions by Plaintiffs Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Mayer, Colette) (Entered: 08/28/2015)
58 ORDER granting 54 Joint Stipulation Extending Time for Inspections. Ordered Plaintiffs shall have permission to inspect the four Border Patrol Stations at Tucson, Douglas, Nogales and Casa Grande, over four consecutive days from September 8 through September 11, 2015. Signed by Senior Judge David C Bury on 9/1/2015. (BAR) (Entered: 09/01/2015)
59 STIPULATION Re: Proposed Protective Order by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) (Entered: 09/02/2015)

09/04/2015 09/08/2015 09/17/2015 09/17/2015 09/28/2015 10/05/2015 10/05/2015
10/06/2015
10/08/2015 10/22/2015

60 RESPONSE in Opposition re: 56 MOTION for Sanctions filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit Allen Declaration, # 2 Exhibit Shivers Declaration)(Fabian, Sarah) (Entered: 09/04/2015)
61 *REPLY re: Response in Opposition to Motion for Sanctions 56 by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold)* Modified to correct reference to related document on 9/9/2015 (DLC). (Entered: 09/08/2015)
62 RESPONSE in Opposition re: 52 MOTION to Dismiss Case filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 09/17/2015)
63 DECLARATION of Elizabeth Balassone re: 62 Response in Opposition to Motion . filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit Index of Exhibits and Exhibits A and B)(McElhinny, Harold) (Entered: 09/17/2015)
64 ORDER granting in part and denying in part 56 Motion for Sanctions. Signed by Senior Judge David C Bury on 9/25/2015. (SEE ORDER FOR FURTHER DETAILS.)(BAR) (Entered: 09/28/2015)
65 REPLY to Response to Motion re: 52 MOTION to Dismiss Case filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fishman, Dillon) (Entered: 10/05/2015)
66 MOTION Modify Court's Order re: 64 Order on Motion for Sanctions by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Stipulation, # 3 Text of Proposed Order)(Fabian, Sarah) (Entered: 10/05/2015)
67 LODGED PROPOSED ORDER by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. Amendment to 66 MOTION Modify Court's Order re: 64 Order on Motion for Sanctions Amended Proposed Order. (Fabian, Sarah) Modified on 10/8/2015, incorrect event. (BAR). (Entered: 10/06/2015)
68 ORDER granting 59 Stipulation and Protective Order. Signed by Senior Judge David C Bury on 10/1/2015. (BAR) (Entered: 10/08/2015)
69 STIPULATION AND PROTECTIVE ORDER GOVERNING THE HANDLING OF CONFIDENTIAL MATERIAL. Signed by Senior Judge David C Bury on 10/19/2015. (BAR) (Entered: 10/22/2015)

10/27/2015 10/30/2015 12/03/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015
12/04/2015
12/04/2015

70 ORDER ON STIPULATED SCHEDULE FOR PRELIMINARY INJUNCTION BRIEFING, granting 66 Motion to Modify Court's Order re: 64 Order on Motion for Sanction. Signed by Senior Judge David C Bury on 10/26/2015. (See Order for Details.)(BAR) (Entered: 10/27/2015)
71 STATUS REPORT Joint Status Report and Notice of Stipulation Regarding Video Productions by Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 10/30/2015)
72 Emergency MOTION to Stay preliminary injunction briefing by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit Declaration, # 2 Text of Proposed Order)(Fabian, Sarah) (Entered: 12/03/2015)
73 RESPONSE in Opposition re: 72 Emergency MOTION to Stay preliminary injunction briefing Plaintiff's Opposition To Defendants' Motion To Stay Preliminary Injunction Briefing filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 12/04/2015)
74 NOTICE of Confidential Doc. Designation Lodging pursuant to LRCiv.5.6.d. (McElhinny, Harold) (Entered: 12/04/2015)
75 SEALED LODGED Proposed Proposed Order Granting Plaintiffs' Motion For Preliminary Injunction. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Proposed Order Granting Preliminary Injunction)(McElhinny, Harold) (Entered: 12/04/2015)
76 SEALED LODGED Proposed Brief in Support of Plaintiffs' Motion for Preliminary Injunction. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Proposed Order - Under Seal, # 2 Vail Decl ISO PI Motion - Under Seal, # 3 Powitz Decl ISO PI Motion - Under Seal, # 4 Goldenson Decl ISO PI Motion - Under Seal, # 5 Gaston Decl ISO PI Motion - Under Seal, # 6 Coles Decl ISO PI Motion - Under Seal)(McElhinny, Harold) (Entered: 12/04/2015)
77 FILED AT DOC. 190 --SEALED LODGED Proposed Appendix of Exhibits in Support of PI Motion - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit Exhibits 1-9 (Part 1 of 17) - Under Seal)(McElhinny, Harold) Modified on 8/3/2016 (MFR). (Entered: 12/04/2015)
78 UNSEALED BY 164 AND FILED AT 165 -SEALED LODGED Proposed Exhibits 10-18 (Part 2 of 17) - Under Seal. Document to be

12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015

filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 6/27/2016 (BAR). (Entered: 12/04/2015)
79 UNSEALED BY 164 AND FILED AT 166 -SEALED LODGED Proposed Exhibits 19 - 24 (Part 3 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 6/27/2016 (BAR). (Entered: 12/04/2015)
80 UNSEALED BY 164 AND FILED AT 167 -SEALED LODGED Proposed Exhibits 25 - 27 (Part 4 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 6/27/2016 (BAR). (Entered: 12/04/2015)
81 UNSEALED BY 164 AND FILED AT 168 -SEALED LODGED Proposed Exhibits 28 - 31 (Part 5 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 6/27/2016 (BAR). (Entered: 12/04/2015)
82 UNSEALED BY 164 AND FILED AT 169 -SEALED LODGED Proposed Exhibits 32 - 42 (Part 6 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 6/27/2016 (BAR). (Entered: 12/04/2015)
83 FILED AT DOC. 191 --SEALED LODGED Proposed Exhibits 43 - 50 (Part 7 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/3/2016 (MFR). (Entered: 12/04/2015)
84 UNSEALED BY DOC. 189 AND FILED AT DOC. 198 --SEALED LODGED Proposed Exhibits 51 - 59 (Part 8 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/3/2016 (MFR). (Entered: 12/04/2015)
85 UNSEALED BY 164 AND FILED AT 170 -SEALED LODGED Proposed Exhibits 60 - 69 (Part 9 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 6/27/2016 (BAR). (Entered: 12/04/2015)

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86 *SEALED LODGED Proposed Exhibits 70 - 80 (Part 10 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) *Modified to clarify docket text on 8/3/2016 (MFR). (Entered: 12/04/2015)
87 FILED AT DOC. 193 --SEALED LODGED Proposed Exhibits 81 - 87 (Part 11 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/3/2016 (MFR). (Entered: 12/04/2015)
88 FILED AT DOC. 194 --SEALED LODGED Proposed Exhibits 88 103 (Part 12 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/3/2016 (MFR). (Entered: 12/04/2015)
89 UNSEALED BY 164 AND FILED AT 171 -SEALED LODGED Proposed Exhibits 104 - 105 (Part 13 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 6/27/2016 (BAR). (Entered: 12/04/2015)
90 UNSEALED BY 164 AND FILED AT 172 -SEALED LODGED Proposed Exhibits 106 - 116 (Part 14 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 6/27/2016 (BAR). (Entered: 12/04/2015)
91 FILED AT DOC. 195 --SEALED LODGED Proposed Exhibits 117 146 (Part 15 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/3/2016 (MFR). (Entered: 12/04/2015)
92 FILED AT DOC. 196 --SEALED LODGED Proposed Exhibits 147 171 (Part 16 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/3/2016 (MFR). (Entered: 12/04/2015)
93 FILED AT DOC. 197 --SEALED LODGED Proposed Exhibits 172 203 (Part 17 of 17) - Under Seal. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/3/2016 (MFR). (Entered: 12/04/2015)

12/04/2015

94 REQUEST re: Request for Judicial Notice in Support of PI Motion by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 12/04/2015)

12/04/2015

95 MOTION for Leave to File Excess Pages for Motion for Leave to File Brief in Excess of Page Limit by Norlan Flores, Unknown Parties. (Attachments: # 1 Proposed Order)(McElhinny, Harold) (Entered: 12/04/2015)

12/04/2015 96 STIPULATION for Proposed Schedule for PI Briefing by Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 12/04/2015)

12/07/2015

97 REPLY to Response to Motion re: 72 Emergency MOTION to Stay preliminary injunction briefing filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fishman, Dillon) (Entered: 12/07/2015)

12/07/2015

98 Additional Attachments to Main Document re: 76 Sealed Lodged Proposed Document Certificate of Service by Express Mail by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 12/07/2015)

12/11/2015

99 ORDER granting 72 Emergency Motion to Stay briefing for the Motion for Preliminary Injunction; granting 95 Motion for Leave to File Excess Pages. It is further ordered that the Stipulated Schedule for Briefing the Motion for Preliminary Injunction shall commence from the filing date of the Court's disposition of the Motion to Dismiss, and is approved as follows: the Defendants have 45 days to file a response; Plaintiffs have 14 days to file a reply. Signed by Senior Judge David C Bury on 12/9/2015.(BAR) (Entered: 12/11/2015)

12/11/2015 100 Document was filed in the wrong case. All docket text associated with the entry has been removed; NEF regenerated on 12/14/2015 (CEI) (Entered: 12/11/2015)

12/18/2015

101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Document, 90 Sealed Lodged Proposed Document, 81 Sealed Lodged Proposed Document, 83 Sealed Lodged Proposed Document, 87 Sealed Lodged Proposed Document, 80 Sealed Lodged Proposed Document, 77 Sealed Lodged Proposed Document, 89 Sealed Lodged Proposed Document, 84 Sealed Lodged Proposed Document, 92 Sealed Lodged Proposed Document, 86 Sealed Lodged Proposed Document, 76 Sealed Lodged Proposed Document, 85 Sealed Lodged Proposed Document, 75 Sealed Lodged Proposed Document AND PARTIAL NOTICE OF WITHDRAWAL OF

CONFIDENTIALITY DESIGNATION UNDER L.R. 5.6 by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Fabian, Sarah) Modified on 8/9/2016 (BAR). Modified on 8/9/2016 (BAR). (Entered: 12/18/2015)

12/18/2015

102 (FILED AT 203 )-SEALED LODGED Proposed PI Motion and Supporting Declarations re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) Modified on 8/9/2016 (BAR). Modified on 8/9/2016 (BAR). (Entered: 12/18/2015)

12/18/2015

103 (FILED AT 204 )-SEALED LODGED Proposed Proposed Redacted Exhibits Set 1 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) Modified on 8/9/2016 (BAR). (Entered: 12/18/2015)

12/18/2015

104 (FILED AT 204 )-SEALED LODGED Proposed Redacted Exhibits Set 2 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) Modified on 8/9/2016 (BAR). (Entered: 12/18/2015)

12/18/2015

105 (FILED AT 204 )-SEALED LODGED Proposed Redacted Exhibits Set 3 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) Modified on 8/9/2016 (BAR). (Entered: 12/18/2015)

12/18/2015

106 (FILED AT 204 )-SEALED LODGED Proposed Redacted Exhibits Set 4 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) Modified on 8/9/2016 (BAR). (Entered: 12/18/2015)

12/18/2015

107 (FILED AT 204 )-SEALED LODGED Proposed Redacted Exhibits Set 5 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) Modified on 8/9/2016 (BAR). Modified on 8/9/2016 (BAR). (Entered: 12/18/2015)

12/18/2015

108 (FILED AT 204 )-SEALED LODGED Proposed Redacted Exhibits Set 6 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) Modified on 8/9/2016 (BAR). Modified on 8/9/2016 (BAR). (Entered: 12/18/2015)

01/04/2016

109 RESPONSE in Opposition re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order Proposed Order)(McElhinny, Harold) (Entered: 01/04/2016)

01/04/2016

110 DECLARATION of Kevin M. Coles In Support of Plaintiffs' Opposition to Defendants' Motion To Seal Documents re: 109 Response in Opposition to Motion . filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit A-H)(McElhinny, Harold) (Entered: 01/04/2016)

01/04/2016 111 (FILED AT 205 )-SEALED LODGED Proposed Appendix of Lodged HIghlighted Exhibits, Part 1 of 5 re: 101 MOTION to Seal Document

91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit Appendix of Lodged HIghlighted Exhibits, Part 1 of 5)(McElhinny, Harold) Modified on 8/9/2016 (BAR). (Entered: 01/04/2016)

01/04/2016

112 (FILED AT 205 )-SEALED LODGED Proposed Appendix of Lodged HIghlighted Exhibits, Part 2 of 5 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/9/2016 (BAR). (Entered: 01/04/2016)

01/04/2016

113 (FILED AT 205 )-SEALED LODGED Proposed Appendix of Lodged HIghlighted Exhibits, Part 3 of 5 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/9/2016 (BAR). (Entered: 01/04/2016)

01/04/2016

114 (FILED AT 205 )-SEALED LODGED Proposed Appendix of Lodged HIghlighted Exhibits, Part 4 of 5 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/9/2016 (BAR). (Entered: 01/04/2016)

01/04/2016

115 (FILED AT 205 )-SEALED LODGED Proposed Appendix of Lodged HIghlighted Exhibits, Part 5 of 5 re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties.

(McElhinny, Harold) Modified on 8/9/2016 (BAR). (Entered: 01/04/2016)

01/05/2016

116 (FILED AT 205 )-SEALED LODGED Proposed Certificate of Service By Express Mail re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) Modified on 8/9/2016 (BAR). (Entered: 01/05/2016)

01/11/2016

117 (AMENDED BY 173 )-ORDER granting 4 Plaintiffs' Motion for Class Certification. The following Class is certified under Rule 23(b)(2): All individuals who are now or in the future will be detained for one or more nights at a CBP facility within the Border Patrol's Tucson Sector. Signed by Senior Judge David C Bury on 1/11/2016. (See Order for details) (DPS) Modified on 6/27/2016 (BAR). (Entered: 01/11/2016)

01/11/2016

118 ORDER granting in part and denying in part 52 Defendants' Motion to Dismiss. IT IS ORDERED granted in part with respect to Plaintiffs' APA claim, and denied in part with respect to Plaintiffs' constitutional claims. Signed by Senior Judge David C Bury on 1/11/2016. (DPS) (Entered: 01/11/2016)

01/11/2016

119 NOTICE OF ATTORNEY APPEARANCE: W. Daniel Shieh appearing for Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. . (Shieh, Woei-Tyng) (Entered: 01/11/2016)

01/11/2016

120 REPLY to Response to Motion re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Shieh, Woei-Tyng) (Entered: 01/11/2016)

01/12/2016

121 STATEMENT of Recent Decision re: 109 Response in Opposition to Motion by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 01/12/2016)

01/19/2016 122 RESPONSE re: 117 Order on Motion to Certify Class Plaintiffs' Amended Class Definition by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 01/19/2016)

01/27/2016 123 STIPULATION by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Shieh, Woei-Tyng) (Entered: 01/27/2016)

01/28/2016

124 MOTION to Intervene Motion of Phoenix Newspapers, Inc. to Intervene For the Limited Purpose of Opposing Defendants' Motion to Seal and Securing an Order to Unseal Court Records by Phoenix Newspapers, Inc.. (Attachments: # 1 Text of Proposed Order)(Bodney, David) (Entered: 01/28/2016)

01/29/2016 125 OBJECTION re: 122 Response by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) (Entered: 01/29/2016)

02/02/2016 126 NOTICE of Attorney Withdrawal Emily Creighton filed by Emily Creighton. (Creighton, Emily) (Entered: 02/02/2016)

02/04/2016

127 ORDER stating that the Plaintiffs' proposed definition of "one or more nights" is understood to mean "more than 8 hours within the same calendar day." IT IS FURTHER ORDERED that given this clarification, the Defendants may withdraw the Objection 125 and refile, or alternatively rely on the already filed Objection 125 . IT IS FURTHER ORDERED that within 7 days of the filing date of this Order, the Defendants shall either withdraw and refile their Objection or not, and following Defendants' action or inaction regarding their Objection, Plaintiffs shall have 7 days to file a Reply. Signed by Senior Judge David C Bury on 2/4/2016. (See Order for additional details) (DPS) (Entered: 02/04/2016)

02/11/2016

128 OBJECTION re: 127 Order Amended Objections Regarding Proposed Class Definition by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) (Entered: 02/11/2016)

02/11/2016

129 NOTICE re: Non-Opposition to Motion to Intervene by Norlan Flores, Unknown Parties re: 124 MOTION to Intervene Motion of Phoenix Newspapers, Inc. to Intervene For the Limited Purpose of Opposing Defendants' Motion to Seal and Securing an Order to Unseal Court Records . (McElhinny, Harold) (Entered: 02/11/2016)

02/18/2016

130 RESPONSE re: 128 Objection Plaintiffs' Response to Defendants' Amended Objections to Class Definition by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 02/18/2016)

02/18/2016 131 REPLY to Response to Motion re: 124 MOTION to Intervene Motion of Phoenix Newspapers, Inc. to Intervene For the Limited Purpose of Opposing Defendants' Motion to Seal and Securing an Order to Unseal

Court Records Reply in Support of Motion of Phoenix Newspapers,Inc. to Intervene for the Limited Purpose of Opposing Defendants' Motion to Seal and Securing an Order to Unseal Court Records filed by Phoenix Newspapers Incorporated. (Bodney, David) (Entered: 02/18/2016)

02/25/2016 132 ORDER granting 123 Stipulated Discovery Plan for Additional Production of Video Data. Signed by Senior Judge David C Bury on 2/25/2016. (See Order for Details.)(BAR) (Entered: 02/25/2016)

02/25/2016

133 RESPONSE BRIEF by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self . (Attachments: # 1 Exhibit List (Index), # 2 Exhibit 1 (Allen Decl.), # 3 Exhibit 1A (Rescate Flyer), # 4 Exhibit 2 (Skipworth Decl.), # 5 Exhibit 2A (Skipworth CV), # 6 Exhibit 2B (Skipworth Photos), # 7 Exhibit 2C (Skipworth Allen Decl.), # 8 Exhibit 2D (Hold Room Checklists), # 9 Exhibit 2D (Hold Room Checklists), # 10 Exhibit 2D (Hold Room Checklists))(Fabian, Sarah) (Entered: 02/25/2016)

02/25/2016

134 Additional Attachments to Main Document re: 76 Sealed Lodged Proposed Document by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit 2D (Hold Room Checklists), # 2 Exhibit 2D (Hold Room Checklists), # 3 Exhibit 2D (Hold Room Checklists), # 4 Exhibit 2D (Hold Room Checklists), # 5 Exhibit 2D (Hold Room Checklists), # 6 Exhibit 2D (Hold Room Checklists), # 7 Exhibit 2D (Hold Room Checklists), # 8 Exhibit 2D (Hold Room Checklists), # 9 Exhibit 2D (Hold Room Checklists), # 10 Exhibit 2D (Hold Room Checklists))(Fabian, Sarah) (Entered: 02/25/2016)

02/25/2016

135 Additional Attachments to Main Document re: 76 Sealed Lodged Proposed Document by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit 2D (Hold Room Checklists), # 2 Exhibit 2D (Hold Room Checklists), # 3 Exhibit 2D (Hold Room Checklists), # 4 Exhibit 2D (Hold Room Checklists), # 5 Exhibit 2D (Hold Room Checklists), # 6 Exhibit 2D (Hold Room Checklists), # 7 Exhibit 2D (Hold Room Checklists), # 8 Exhibit 2D (Hold Room Checklists), # 9 Exhibit 2D (Hold Room Checklists), # 10 Exhibit 2D (Hold Room Checklists))(Fabian, Sarah) (Entered: 02/25/2016)

02/25/2016

136 Additional Attachments to Main Document re: 76 Sealed Lodged Proposed Document by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit 2D (Hold Room Checklists), # 2 Exhibit 2D (Hold Room Checklists), # 3 Exhibit 2D (Hold Room Checklists), # 4 Exhibit 2D

(Hold Room Checklists), # 5 Exhibit 2D (Hold Room Checklists), # 6 Exhibit 2D (Hold Room Checklists), # 7 Exhibit 2D (Hold Room Checklists), # 8 Exhibit 2D (Hold Room Checklists), # 9 Exhibit 2D (Hold Room Checklists), # 10 Exhibit 2D (Hold Room Checklists))(Fabian, Sarah) (Entered: 02/25/2016)

02/25/2016

137 Additional Attachments to Main Document re: 76 Sealed Lodged Proposed Document by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit 2D (Hold Room Checklists), # 2 Exhibit 2D (Hold Room Checklists), # 3 Exhibit 2D (Hold Room Checklists), # 4 Exhibit 2D (Hold Room Checklists), # 5 Exhibit 2D (Hold Room Checklists), # 6 Exhibit 2D (Hold Room Checklists), # 7 Exhibit 2D (Hold Room Checklists), # 8 Exhibit 2D (Hold Room Checklists), # 9 Exhibit 2D (Hold Room Checklists), # 10 Exhibit 2D (Hold Room Checklists))(Fabian, Sarah) (Entered: 02/25/2016)

02/25/2016

138 Additional Attachments to Main Document re: 76 Sealed Lodged Proposed Document by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit 2D (Hold Room Checklists), # 2 Exhibit 2D (Hold Room Checklists), # 3 Exhibit 2D (Hold Room Checklists), # 4 Exhibit 2D (Hold Room Checklists), # 5 Exhibit 2D (Hold Room Checklists), # 6 Exhibit 2D (Hold Room Checklists), # 7 Exhibit 2D (Hold Room Checklists), # 8 Exhibit 2D (Hold Room Checklists), # 9 Exhibit 2D (Hold Room Checklists), # 10 Exhibit 2D (Hold Room Checklists))(Fabian, Sarah) (Entered: 02/25/2016)

02/25/2016

139 MOTION to Seal Document Partially Seal Opposition to Motion for Preliminary Injunction and Exhibit 5, Declaration of Justin Bristow by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Fishman, Dillon) (Entered: 02/25/2016)

02/25/2016

140 Additional Attachments to Main Document re: 76 Sealed Lodged Proposed Document by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit 2D (Hold Room Checklists), # 2 Exhibit 2D (Hold Room Checklists), # 3 Exhibit 2D (Hold Room Checklists), # 4 Exhibit 2E (Nogales Food Log), # 5 Exhibit 3 (Bryce Declaration), # 6 Exhibit 3A (Bryce CV), # 7 Exhibit 3B (Bryce TCC Meal Plan), # 8 Exhibit 3C (Bryce Photos), # 9 Exhibit 4 (Harber Decl.), # 10 Exhibit 4A (Harber CV))(Fabian, Sarah) (Entered: 02/25/2016)

02/25/2016 141 UNSEALED BY DOC. 189 AND FILED AT DOC. 199 --SEALED LODGED Proposed Opposition to Motion for Preliminary Injunction

and Exhibit 5, Declaration of Justin Bristow re: 139 MOTION to Seal Document Partially Seal Opposition to Motion for Preliminary Injunction and Exhibit 5, Declaration of Justin Bristow. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit 5 - Bristow Decl)(Fishman, Dillon) Modified on 8/3/2016 (MFR). (Entered: 02/25/2016)

02/25/2016

142 Additional Attachments to Main Document re: 76 Sealed Lodged Proposed Document by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit 4B (Harber Screening Form), # 2 Exhibit 4C (Harber 2007 Policy), # 3 Exhibit 4D (Harber Scabies Document), # 4 Exhibit 4E (Harber Suicide Policy), # 5 Exhibit 4F (Harber Sexual Assault Policy), # 6 Exhibit 4G (Suicide Prevention Memo), # 7 Exhibit 5 (Bristow Declaration))(Fabian, Sarah) (Entered: 02/25/2016)

02/26/2016 143 ANSWER to 1 Complaint by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self.(Fabian, Sarah) (Entered: 02/26/2016)

03/09/2016 144 SUPPLEMENT Notice of Supplemental Authority re: 128 Objection by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) (Entered: 03/09/2016)

03/10/2016 145 REPLY BRIEF by Norlan Flores, Unknown Parties Plaintiffs' Reply in Support of Motion for Preliminary Injunction. (McElhinny, Harold) (Entered: 03/10/2016)

03/10/2016 146 DECLARATION of Joe Goldenson, M.D. re: 145 Brief - Reply by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 03/10/2016)

03/10/2016

147 DECLARATION of Eldon Vail re: 145 Brief - Reply by Plaintiffs Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit Index of Exhibits)(McElhinny, Harold) (Entered: 03/10/2016)

03/10/2016 148 DECLARATION of Robert W. Powitz re: 145 Brief - Reply by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 03/10/2016)

03/10/2016

149 DECLARATION of Kevin M. Coles re: 145 Brief - Reply by Plaintiffs Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit Index of Exhibits)(McElhinny, Harold) (Entered: 03/10/2016)

03/10/2016 150 RESPONSE in Opposition re: 139 MOTION to Seal Document Partially Seal Opposition to Motion for Preliminary Injunction and

Exhibit 5, Declaration of Justin Bristow Plaintiffs' Opposition to Defendants' Motion to Partially Seal Documents filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 03/10/2016)

03/17/2016

151 REPLY to Response to Motion re: 139 MOTION to Seal Document Partially Seal Opposition to Motion for Preliminary Injunction and Exhibit 5, Declaration of Justin Bristow filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 PI opposition, # 2 Allen declaration, # 3 Bristow declaration)(Shieh, Woei-Tyng) (Entered: 03/17/2016)

03/25/2016

152 RESPONSE to Defendants' Notice of Supplemental Authority Re: Defendants' Amended Objections to Class Definitions by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 03/25/2016)

05/12/2016 153 ORDER Pretrial Scheduling Conference set for 6/9/2016 at 10:00 AM before Senior Judge David C Bury. Signed by Senior Judge David C Bury on 5/10/2016. (BAR) (Entered: 05/12/2016)

05/23/2016

154 MOTION to Withdraw as Attorney Victoria Lopez by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Pochoda, Daniel) (Entered: 05/23/2016)

05/27/2016 155 NOTICE of Service of Discovery filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 05/27/2016)

06/01/2016 156 ORDER granting 154 Motion to Withdraw Victoria Lopez as counsel of record for the Plaintiffs. Signed by Senior Judge David C Bury on 6/1/2016.(BAR) (Entered: 06/01/2016)

06/03/2016 157 REPORT of Rule 26(f) Planning Meeting by Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 06/03/2016)

06/10/2016

158 SCHEDULING ORDER: Discovery due by 3/23/2017. Dispositive motions due by 4/24/2017. roposed Pretrial Order due by 5/24/2017. Signed by Senior Judge David C Bury on 6/10/2016. (See Attached Order) (SIB) (Entered: 06/10/2016)

06/14/2016

159 ORDERED that the parties may present their positions regarding the Court's suggestion and/or present alternatives to proceeding in the suggested fashion. Further ordered that within 20 days of the filing date of this Order, the parties shall simultaneously file briefs explaining their positions regarding the temporal provisions, if any, which should be contained in the class definition, and, thereafter, may have 14 days to respond to each others positions. There shall be no Replies. Signed by

Senior Judge David C Bury on 6/13/2016. (BAR) (Entered: 06/14/2016)

06/15/2016 160 NOTICE re: Joint Proposed Electronic Discovery Plan by Norlan Flores, Unknown Parties . (McElhinny, Harold) (Entered: 06/15/2016)

06/16/2016 161 NOTICE of Appearance by Michael Anthony Celone on behalf of Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Celone, Michael) (Entered: 06/16/2016)

06/21/2016

162 MOTION for Protective Order by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Supplement, # 2 Text of Proposed Order, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Fabian, Sarah) (Entered: 06/21/2016)

06/22/2016

163 STIPULATION re: 159 Order Regarding Class Definition by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(McElhinny, Harold) (Entered: 06/22/2016)

06/27/2016

164 *ORDERED granting the 124 Motion to Intervene by the Phoenix Newspapers for the sole purpose of briefing this question. Further ordered denying in part 101 Motion to Seal Document as follows: the Clerk of Court shall unseal 78 , 79 , 80 , 81 , 82 , 85 , 89 and 90 . Further ordered that Defendants shall have 14 days to supplement its MPS:MPI (Doc. 101 ) to show compelling security reasons to seal or partially seal by redaction the Motion for Preliminary Injunction. Further ordered that within 14 days the Plaintiffs shall supplement Defendants MPS:Response (Doc. 139 ) to show compelling reasons for their requested non-disclosures related to Defendants Response to the Plaintiffs Motion for Preliminary Injunction. Ordered that there being no objection, the Plaintiffs request for taking Judicial Notice of Chief Oaks Declaration in Flores v. Lynch, CV 85-4544 RJK-PHX (Doc. 94 ) is GRANTED. Signed by Senior Judge David C Bury on 6/22/2016.(BAR) *Modified to correct docket text on 8/5/2016 (MFR). (Entered: 06/27/2016)

06/27/2016 165 Exhibits 10-18 (Part 2 of 17) by Norlan Flores, Unknown Parties. (previously lodged at 78 (BAR) (Entered: 06/27/2016)

06/27/2016 166 Exhibits 19 - 24 (Part 3 of 17) by Norlan Flores, Unknown Parties. (previously lodged at 79 (BAR) (Entered: 06/27/2016)

06/27/2016 167 Exhibits 25 - 27 (Part 4 of 17) by Norlan Flores, Unknown Parties. (previously lodged at 80 (BAR) (Entered: 06/27/2016)

06/27/2016 168 Exhibits 28 - 31 (Part 5 of 17) by Norlan Flores, Unknown Parties. (previously lodged at 81 (BAR) (Entered: 06/27/2016)

06/27/2016 169 Exhibits 32 - 42 (Part 6 of 17) by Norlan Flores, Unknown Parties. (previously lodged at 82 )(BAR) (Entered: 06/27/2016)

06/27/2016 170 Exhibits 60 - 69 (Part 9 of 17) by Norlan Flores, Unknown Parties. (previously lodged at 85 ) (BAR) (Entered: 06/27/2016)

06/27/2016 171 Exhibits 104 - 105 (Part 13 of 17) by Norlan Flores, Unknown Parties. (previously lodged at 89 )-(BAR) (Entered: 06/27/2016)

06/27/2016 172 Exhibits 106 - 116 (Part 14 of 17) by Norlan Flores, Unknown Parties. (previously lodged at 90 )-(BAR) (Entered: 06/27/2016)

06/27/2016

173 ORDER granting the parties' 163 Joint Stipulation Regarding Class Definition. Ordered that pursuant to the Joint Stipulation and the authority under Federal Rule of Civil Procedure 23(c)(1)(C), as follows:The Courts January 11, 2016 Order certifying a plaintiff class in Jane Doe #1, et al. v. Johnson, et al., case no. 4:15-cv-00250-DCB (ECF No. 117), IS HEREBY AMENDED to re-define the certified class under Rule 23(b)(2) as: All individuals who are now or in the future will be detained at a CBP facility within the Border Patrols Tucson Sector. Signed by Senior Judge David C Bury on 6/27/2016. (BAR) (Entered: 06/27/2016)

06/27/2016 174 RESPONSE in Opposition re: 162 MOTION for Protective Order filed by Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 06/27/2016)

06/29/2016 175 REPLY to Response to Motion re: 162 MOTION for Protective Order filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) (Entered: 06/29/2016)

06/29/2016 176 NOTICE of Service of Discovery filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fishman, Dillon) (Entered: 06/29/2016)

07/07/2016

177 STIPULATION re: 164 Order by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order Proposed Order)(McElhinny, Harold) Modified on 7/8/2016 (BAR). (Entered: 07/07/2016)

07/08/2016 178 MOTION for Admission Pro Hac Vice as to attorney Robert Esposito on behalf of Unknown Parties. (BAS) (Entered: 07/08/2016)

07/08/2016

PRO HAC VICE FEE PAID. $ 35, receipt number PHX173786 as to Robert Esposito. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/08/2016)

07/08/2016

179 ORDER pursuant to General Order 09-08 granting 178 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/08/2016)

07/11/2016 180 MOTION for Admission Pro Hac Vice as to attorney James J Cekola on behalf of plaintiffs Norlan Flores and Unknown Parties. (BAS) (Entered: 07/12/2016)

07/12/2016

PRO HAC VICE FEE PAID. $ 35, receipt number PHX173880 as to James J Cekola. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 07/12/2016)

07/12/2016

181 ORDER pursuant to General Order 09-08 granting 180 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 07/12/2016)

07/12/2016

182 ORDER granting 177 Stipulation for briefing schedule for supplemental briefing of 101 Motion to Partially Seal RE: Plaintiffs' Motion for Preliminary Injunction and 139 MOTION to Partially Seal RE: Response to Motion for Preliminary Injunction, as follows: Supplemental briefs due 16 days from the filing date of the Court's Order [Doc. 164]; Responses are due within 7 days of the supplemental briefing, and Replies due within 7 days of the Responses. Signed by Senior Judge David C Bury on 07/12/2016. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DCB, gb) (Entered: 07/12/2016)

07/13/2016

183 SUPPLEMENT Defendants' Motion to Seal PI Documents re: 133 Brief - Response, 141 Sealed Lodged Proposed Document, 164 Order on Motion to Seal Document, Order on Motion to Intervene, 139 MOTION to Seal Document Partially Seal Opposition to Motion for Preliminary Injunction and Exhibit 5, Declaration of Justin Bristow, 76 Sealed Lodged Proposed Document, 102 Sealed Lodged Proposed Document, 151 Reply to Response to Motion, 150 Response in

Opposition to Motion by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Affidavit Defendants' Decl. in Support of Sealing)(Shieh, Woei-Tyng) (Entered: 07/13/2016)

07/18/2016 184 MOTION to Withdraw as Attorney James Duff Lyall by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Pochoda, Daniel) (Entered: 07/18/2016)

07/20/2016

185 RESPONSE re: 183 Supplement Plaintiffs' Response To Defendants' Supplemental Brief In Support Of Motion To Seal Documents by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 07/20/2016)

07/21/2016

186 ORDER denying 162 Motion for Protective Order without prejudice to reurging it subsequent to the depositions. Signed by Senior Judge David C Bury on 7/21/2016.(DLC) (Entered: 07/21/2016)

07/22/2016

187 ORDER granting 184 Motion to Withdraw as Attorney. IT IS HEREBY ORDERED removing James Duff Lyall as counsel of record for the Plaintiffs. Signed by Senior Judge David C Bury on 7/22/2016.(DLC) (Entered: 07/22/2016)

07/27/2016

188 REPLY to Response to Motion re: 101 MOTION to Seal Document 91 Sealed Lodged Proposed Document, 88 Sealed Lodged Proposed Document, 82 Sealed Lodged Proposed Document, 78 Sealed Lodged Proposed Document, 79 Sealed Lodged Proposed Document, 93 Sealed Lodged Proposed Do, 139 MOTION to Seal Document Partially Seal Opposition to Motion for Preliminary Injunction and Exhibit 5, Declaration of Justin Bristow filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Shieh, Woei-Tyng) (Entered: 07/27/2016)

08/03/2016

189 ORDER that the Motion to Partially Seal the Plaintiffs' Motion for Preliminary Injunction (Doc. 101 ) is GRANTED IN PART as outlined on the attached Order. It is further Ordered that the Clerk of the Court shall file the following lodged documents under seal: Documents 77 , 83 , 86 , 87 , 88 , 91 , 92 , and 93 . The exhibits contained therein shall remain sealed only as follows: Exhibits 79-80, 81, 88, 96, 98, 103, 117, and 119. It is further Ordered that the Clerk of the Court shall unseal Document 84 . It is further Ordered that the remaining sealed lodged documents filed by the parties shall remain lodged only. It is further Ordered that the Motion to Partially Seal the Plaintiffs' Motion for Preliminary Injunction (Doc. 101 ) is DENIED IN ALL OTHER PARTS. It is further Ordered that Defendants' Motion to Partially Seal Opposition to Motion for Preliminary Injunction (Doc. 139 ) is DENIED. The Clerk of the Court shall unseal Document 141 (see

attached Order for complete details). Signed by Senior Judge David C Bury on 8/2/2016.(MFR) (Entered: 08/03/2016)

08/03/2016

190 *Sealed Document: Appendix of Exhibits in Support of Plaintiffs' Motion for Preliminary Injunction and EXHIBITS 1-9 (Part 1 of 17) by Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit 1-9)(MFR) *Modified to clarify docket text on 8/3/2016 (MFR). (Entered: 08/03/2016)

08/03/2016

191 *Sealed Document: Exhibits 43 - 50 (Part 7 of 17) by Norlan Flores, Unknown Parties. (MFR) *Modified to clarify docket text on 8/3/2016 (MFR). (Entered: 08/03/2016)

08/03/2016 192 Sealed Document: Exhibits 70 - 80 by Norlan Flores, Unknown Parties. (MFR) (Entered: 08/03/2016)

08/03/2016

193 *Sealed Document: Exhibits 81 - 87 (Part 11 of 17) by Norlan Flores, Unknown Parties. (MFR) *Modified to clarify docket text on 8/3/2016 (MFR). (Entered: 08/03/2016)

08/03/2016 194 *Sealed Document: Exhibits 88 - 103 (Part 12 of 17) by Norlan Flores, Unknown Parties. (MFR) *Modified to clarify docket text on 8/3/2016 (MFR). (Entered: 08/03/2016)

08/03/2016 195 *Sealed Document: Exhibits 117 - 146 (Part 15 of 17) by Norlan Flores, Unknown Parties. (MFR) *Modified to clarify docket text on 8/3/2016 (MFR). (Entered: 08/03/2016)

08/03/2016 196 *Sealed Document: Exhibits 147 - 171 (Part 16 of 17) by Norlan Flores, Unknown Parties. (MFR) *Modified to clarify docket text on 8/3/2016 (MFR). (Entered: 08/03/2016)

08/03/2016 197 *Sealed Document: Exhibits 172 - 203 (Part 17 of 17) by Norlan Flores, Unknown Parties. (MFR) *Modified to clarify docket text on 8/3/2016 (MFR). (Entered: 08/03/2016)

08/03/2016 198 Exhibits 51 - 59 (Part 8 of 17) by Norlan Flores, Unknown Parties (Previously lodged at Doc. 84 ). (MFR) (Entered: 08/03/2016)

08/03/2016

199 Additional Attachments to Main Document re: 133 Brief - Response EXHIBIT 5: Declaration of Justin Bristow by Plaintiffs Norlan Flores, Unknown Parties (Previously lodged at Doc. 141 ). (MFR) (Entered: 08/03/2016)

08/04/2016 200 NOTICE of Appearance by Kathleen E Brody on behalf of Norlan Flores, Unknown Parties. (Brody, Kathleen) (Entered: 08/04/2016)

08/09/2016 201 NOTICE of Appearance by Brenda Munoz Furnish on behalf of Norlan Flores, Unknown Parties. (Furnish, Brenda) (Entered: 08/09/2016)

08/09/2016

202 ORDERED that the Clerk of the Court shall file the following lodgeddocuments into the record, under seal: Docs. 102 through 108, and 111 through 116. Signed by Senior Judge David C Bury on 8/5/2016. (BAR) (Entered: 08/09/2016)

08/09/2016 203 SEALED MOTION for Preliminary Injunction by Norlan Flores, Unknown Parties. (BAR) (Entered: 08/09/2016)

08/09/2016

204 Sealed Document: Exhibits to Motion for Preliminary Injunction by Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit 104, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit 112, # 5 Exhibit)(BAR) (Entered: 08/09/2016)

08/09/2016

205 Sealed Document: Appendix of Exhibits to Motion for Preliminary Injunction by Norlan Flores, Unknown Parties. (Attachments: # 1 Appendix Part 1, # 2 Appendix Part II, # 3 Appendix Part III, # 4 Appendix Part IV, # 5 Appendix Part V, # 6 Certificate of Service)(BAR) (Entered: 08/09/2016)

08/17/2016

206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction by Norlan Flores, Unknown Parties. (Attachments: # 1 Proposed Order, # 2 E. Vail Declaration, # 3 R. Powitz Declaration, # 4 J. Goldenson Declaration, # 5 J. Gaston Declaration, # 6 K. Coles Declaration)(McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

207 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction - Appendix of Exhibits in Support of Plaintiffs' Motion for Preliminary Injunction by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

208 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 1-9 (part 1 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

209 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 10-18 (part 2 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

210 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 19-24 (part 3 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

211 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 25-27 (part 4 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

212 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 28-31 (part 5 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

213 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 32-42 (part 6 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

214 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 43-50 (part 7 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

215 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 51-59 (part 8 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

216 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 60-69 (part 9 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

217 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 70-80 (part 10 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

218 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 81-87 (part 11 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

219 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 88-103 (part 12 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

220 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 104-105 (part 13 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

221 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 106-116 (part 14 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

222 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 117-146 (part 15 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

223 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 147-171 (part 16 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

08/17/2016

224 Additional Attachments to Main Document re: 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction, 207 Additional Attachments to Main Document Exhibits 172-203 (part 17 of 17) by Plaintiffs Norlan Flores, Unknown Parties. (McElhinny, Harold) (Entered: 08/17/2016)

09/23/2016 225 MOTION for Admission Pro Hac Vice as to attorney Megan Sallomi on behalf of Norlan Flores and Unknown Parties. (BAS) (Entered: 09/23/2016)

09/23/2016

PRO HAC VICE FEE PAID. $ 35, receipt number PHX176747 as to Megan Sallomi. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/23/2016)

09/23/2016 226 MOTION for Admission Pro Hac Vice as to attorney Elisa Della-Piana on behalf of Norlan Flores and Unknown Parties. (BAS) (Entered: 09/23/2016)

09/23/2016

PRO HAC VICE FEE PAID. $ 35, receipt number PHX176746 as to Elisa Della-Piana. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/23/2016)

09/23/2016

227 ORDER pursuant to General Order 09-08 granting 225 Motion for Admission Pro Hac Vice; granting 226 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/23/2016)

09/27/2016 228 NOTICE of Attorney Substitution by Megan Sallomi. (Sallomi, Megan) (Entered: 09/27/2016)

10/05/2016 229 NOTICE OF ATTORNEY APPEARANCE: Sarah L. Vuong appearing for Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. . (Vuong, Sarah) (Entered: 10/05/2016)

10/06/2016

230 Pursuant to LRCiv 7.2(f) of the Rules of Practice of the United States District Court for the District of Arizona, IT IS ORDERED setting evidentiary hearing and oral argument on re: 203 SEALED MOTION for Preliminary Injunction filed by Unknown Parties, Norlan Flores, 206 MOTION for Preliminary Injunction Brief in Support of Plaintiffs' Motion for Preliminary Injunction filed by Unknown Parties, Norlan Flores Motion Hearing set for 11/15/2016 at 9:00 AM, before Senior Judge David C. Bury. This hearing will run from 9:00 AM to 4:00 PM. Ordered by Senior Judge David C. Bury. (DCB, me)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 10/06/2016)

10/14/2016

231 AMENDED by doc 232 -ORDER resetting the oral argument and evidentiary hearing for the Motion for Preliminary injunction as follows: Tuesday, November 14, 2016, at 1:00 p.m. to 4:00 p.m. and Wednesday, November 15, 2016, at 9:00 a.m. to 4:00 pm. All other directives remain the same. Signed by Senior Judge David C Bury on

10/14/2016. (SIB) Modified on 10/17/2016 (SIB). (Entered: 10/14/2016)

10/17/2016

232 AMENDED ORDER resetting the oral argument and evidentiary hearing for the Motion for Preliminary injunction as follows: Monday, November 14, 2016, at 1:00 p.m. to 4:00 p.m. and Tuesday, November 15, 2016, at 9:00 a.m. to 4:00 pm. All other directives remain the same. Signed by Senior Judge David C Bury on 10/17/2016. (SIB) (Entered: 10/17/2016)

11/01/2016 233 NOTICE of Appearance by Colin Kisor on behalf of Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Kisor, Colin) (Entered: 11/01/2016)

11/07/2016

234 MOTION to Withdraw as Attorney Re: Dillon A. Fishman and W. Daniel Shieh by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Fishman, Dillon) (Entered: 11/07/2016)

11/09/2016

235 ORDER granting 234 Defendants' Motion for Withdrawal of Dillon A. Fishman andWoei-Tyng Daniel Shieh as Counsel of Record for Defendants. Attorneys Fishman and Shieh are hereby withdrawn as counsel of record for Defendants. Signed by Senior Judge David C Bury on 11/8/2016. (DPS) (Entered: 11/09/2016)

11/12/2016 236 TRANSCRIPT REQUEST by Norlan Flores, Unknown Parties for proceedings held on November 14-15, 2016, Judge David C Bury hearing judge(s). (McElhinny, Harold) (Entered: 11/12/2016)

11/14/2016

237 MINUTE ENTRY for Evidentiary Hearing - Day 1, held on 11/14/2016 before Senior Judge David C Bury. Oral argument as to the Motion for Preliminary Injunction. Evidence entered; witnesses sworn and examined. (See attached pdf for complete information). Evidentiary Hearing continued for 11/15/2016 at 09:00 AM in Courtroom 6B, 405 West Congress Street, Tucson, AZ 85701 before Senior Judge David C Bury. (Court Reporter Dianne Davenport) Hearing held 1:00 p.m. to 4:20 p.m.(MLH) (Entered: 11/14/2016)

11/14/2016

238 TRANSCRIPT REQUEST -Amended from Daily to Ordinary (30 days) by Norlan Flores, Unknown Parties for proceedings held on November 14-15, 2016, Judge David C Bury hearing judge(s). (McElhinny, Harold) (Entered: 11/14/2016)

11/15/2016

239 MINUTE ENTRY for Evidentiary Hearing - Day 2, held on 11/15/2016 before Senior Judge David C Bury. Evidence entered; witnesses seated and sworn. Closing arguments heard. It is ordered that Plaintiff's 206 Motion for Preliminary Injunction is Taken Under Advisement. A

formal Order shall follow. See attached pdf for complete information. (Court Reporter Dianne Davenport) Hearing held 9:00 a.m. to 3:00 p.m..(MLH) (Entered: 11/15/2016)

11/15/2016 240 Witness List by Plaintiffs Norlan Flores, Unknown Parties. (MLH) (Entered: 11/15/2016)

11/15/2016 241 Exhibit List by Plaintiffs Norlan Flores, Unknown Parties. (MLH) (Entered: 11/15/2016)

11/15/2016

242 Witness List by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (MLH) (Entered: 11/15/2016)

11/15/2016 243 Exhibit List by Defendants Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (MLH) (Entered: 11/15/2016)

11/18/2016

244 ORDER granting 206 Motion for Preliminary Injunction as listed herein. It is further ordered that Defendants monitoring responsibilities shall be met by using the e3DM data system and Border Patrol logs, shall be released to Plaintiffs on a quarterly basis. Signed by Senior Judge David C Bury on 11/18/16. (See attached PDF for complete information.) (KAH) (Entered: 11/18/2016)

11/21/2016 245 TRANSCRIPT REQUEST by Norlan Flores, Unknown Parties for proceedings held on 11/14/16-11/15/16, Judge David C Bury hearing judge(s). (McElhinny, Harold) (Entered: 11/21/2016)

11/22/2016

246 TRANSCRIPT REQUEST Pre-Trial Proceeding by Jeh Johnson for proceedings held on 11/14/16 -11/15/2016, Judge David C Bury hearing judge(s). (Celone, Michael) (Entered: 11/22/2016)

11/22/2016

247 NOTICE TO FILER OF DEFICIENCY re: AO 435 Item 18 - ORDER: (CATEGORY) A box under ORIGINAL + 1 was incorrectly checked. The original has been previously ordered. FOLLOW-UP ACTION REQUIRED: Please refile with the appropriate box checked under FIRST COPY. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (CSL) (Entered: 11/22/2016)

11/22/2016

248 AMENDED TRANSCRIPT REQUEST pursuant to 247 Notice of Deficiency by Jeh Johnson for proceedings held on 11/14/16-11/15/16, Judge David C Bury hearing judge(s). (Celone, Michael) (Entered: 11/22/2016)

11/28/2016

249 TRANSCRIPT of EVIDENTIARY HEARING - DAY 1 held on 11/14/2016, before Judge David C. Bury. Court Reporter Ms. Dianne Davenport. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/29/2016. Release of Transcript Restriction set for 2/27/2017. (SGG) (Entered: 11/28/2016)

11/28/2016

250 TRANSCRIPT of EVIDENTIARY HEARING - DAY 2 held on 11/15/2016, before Judge David C. Bury. Court Reporter Ms. Dianne Davenport. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/29/2016. Release of Transcript Restriction set for 2/27/2017. (SGG) (Entered: 11/28/2016)

12/02/2016 251 MOTION to Withdraw as Attorney Kevin M. Coles as Counsel of Record for Plaintiffs by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(McElhinny, Harold) (Entered: 12/02/2016)

12/02/2016

252 MOTION for Reconsideration re: 244 Order on Motion for Preliminary Injunction and/or Clarification by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit Allen Declaration, # 2 Exhibit Trindade Declaration, # 3 Text of Proposed Order)(Fabian, Sarah) (Entered: 12/02/2016)

12/09/2016

253 ORDER granting 251 Motion to Withdraw as Kevin M. Coles as Counsel of Record for Plaintiffs. Signed by Senior Judge David C Bury on 12/9/2016.(BAR) (Entered: 12/09/2016)

12/16/2016

254 RESPONSE in Opposition re: 252 MOTION for Reconsideration re: 244 Order on Motion for Preliminary Injunction and/or Clarification Plaintiffs' Opposition to Defendants' Motion for Clarification filed by Unknown Parties. (McElhinny, Harold) (Entered: 12/16/2016)

12/16/2016

255 DECLARATION of James Cekola re: 254 Response in Opposition to Motion Declaration of James Cekola in Support of Plaintiffs' Opposition to Defendants' Motion for Clarification by Plaintiff Unknown Parties. (Attachments: # 1 Exhibit Index with Exhibits 16)(McElhinny, Harold) (Entered: 12/16/2016)

12/19/2016 256 MOTION to Withdraw as Attorney Harold J. McElhinny as Counsel of Record for Plaintiffs by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(McElhinny, Harold) (Entered: 12/19/2016)

12/22/2016

257 REPLY to Response to Motion re: 252 MOTION for Reconsideration re: 244 Order on Motion for Preliminary Injunction and/or Clarification filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Fabian, Sarah) (Entered: 12/22/2016)

12/22/2016 258 Joint MOTION for Extension of Time to Complete Case Deadlines by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Cekola, James) (Entered: 12/22/2016)

12/27/2016

259 ORDER granting 256 Motion to Withdraw Harold J. McElhinny as counsel of record for Plaintiffs. Signed by Senior Judge David C Bury on 12/27/2016.(BAR) (Entered: 12/27/2016)

12/27/2016

260 ORDER granting 258 Motion for Extension of Case Schedule: Discovery due by 6/30/2017. Dispositive motions due by 7/31/2017. Joint Proposed Pretrial Order due by 8/30/2017. Signed by Senior Judge David C Bury on 12/27/2016. (SEE ATTACHED ORDER FOR DETAILS.)(BAR) (Entered: 12/27/2016)

01/03/2017

261 ORDER denying 252 Motion for Reconsideration, except the Court clarifies that the 12-hour confinement period begins when a detainee arrives at a border patrol station. Signed by Senior Judge David C Bury on 1/3/2017.(BAR) (Entered: 01/03/2017)

01/05/2017

262 MOTION for Leave to Depose Two Witnesses Confined in Prison by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Sallomi, Megan) (Entered: 01/05/2017)

01/05/2017

263 AFFIDAVIT in Support re: 262 MOTION for Leave to Depose Two Witnesses Confined in Prison filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit Exhibits to Declaration of Megan Sallomi)(Sallomi, Megan) (Entered: 01/05/2017)

01/09/2017 264 ORDER granting 262 Motion for Leave to Depose Two Witnesses Confined in Prison. Signed by Senior Judge David C Bury on 1/9/2017.(BAR) (Entered: 01/09/2017)

01/09/2017

265 MOTION for Sanctions /Civil Contempt by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order, # 2 Affidavit Declaration of James Cekola, # 3 Exhibit Exhibits 1-3 to Cekola Declaration, with Index)(Mayer, Colette) (Entered: 01/09/2017)

01/11/2017

266 ORDERED re: 265 MOTION for Sanctions, response shall be due by 1/26/2017 and the reply shall be due within 7 days of the filing date of the Response. Signed by Senior Judge David C Bury on 1/11/2017. (BAR) (Entered: 01/11/2017)

01/12/2017

267 STIPULATION Regarding Extension of Time for Briefing Schedule 266 on Plaintiffs' Motion for Civil Contempt 265 by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Mayer, Colette) (Entered: 01/12/2017)

01/17/2017 268 NOTICE of Appearance by Yamileth G Davila on behalf of Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Davila, Yamileth) (Entered: 01/17/2017)

01/17/2017

269 ORDER granting 267 Stipulation Regarding Extension of Time for Briefing Schedule on Plaintiffs' Motion for Civil Contempt re: 265 . Response to Plaintiffs' Motion for Civil Contempt shall be due on 2/3/2017; reply shall be due within 7 days of the filing date of the response. Signed by Senior Judge David C Bury on 1/17/2017. (BAR) (Entered: 01/17/2017)

01/31/2017

270 MOTION for Admission Pro Hac Vice as to attorney Aaron ReichlinMelnick on behalf of Norlan Flores and Unknown Parties. (BAS) (Entered: 01/31/2017)

01/31/2017

PRO HAC VICE FEE PAID. $ 35, receipt number PHX181429 as to Aaron Reichlin-Melnick. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 01/31/2017)

01/31/2017

271 ORDER pursuant to General Order 09-08 granting 270 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/31/2017)

02/01/2017

272 STIPULATION Regarding Class Access by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Esposito, Robert) (Entered: 02/01/2017)

02/02/2017 273 NOTICE of Appearance by Christina Parascandola on behalf of Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Parascandola, Christina) (Entered: 02/02/2017)

02/03/2017

274 MOTION for Leave to File Excess Pages for Defendants' Response to Plaintiffs' Motion for Civil Contempt by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Celone, Michael) (Entered: 02/03/2017)

02/03/2017

275 RESPONSE in Opposition re: 265 MOTION for Sanctions /Civil Contempt filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit Defendants' Exhibits 1-7)(Davila, Yamileth) (Entered: 02/03/2017)

02/06/2017 276 ORDER granting 272 Stipulation Regarding Class Access, in accordance with its terms. Signed by Senior Judge David C Bury on 2/6/2017. (BAR) (Entered: 02/06/2017)

02/09/2017

277 ORDER granting 274 Motion for Leave to File Excess Pages. The page length for Defendants' Response to Plaintiffs' Motion for Civil Contempt shall be extended to 30 pages; Plaintiffs' Reply shall be extended to 24 pages. Signed by Senior Judge David C Bury on 2/9/2017.(BAR) (Entered: 02/09/2017)

02/10/2017

278 REPLY to Response to Motion re: 265 MOTION for Sanctions /Civil Contempt filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Affidavit Declaration of Colette R. Mayer, # 2 Exhibit A to Mayer Declaration)(Mayer, Colette) (Entered: 02/10/2017)

02/27/2017 279 MOTION for Admission Pro Hac Vice as to attorney Samuel C Cortina on behalf of Norlan Flores and Unknown Parties. (BAS) (Entered: 02/28/2017)

02/28/2017

PRO HAC VICE FEE PAID. $ 35, receipt number PHX182579 as to Samuel C Cortina. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 02/28/2017)

02/28/2017

280 ORDER pursuant to General Order 09-08 granting 279 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 02/28/2017)

03/02/2017 281 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 244 Order on Motion for Preliminary Injunction, 261 Order on Motion for Reconsideration by Norlan Flores, Unknown Parties. Filing fee

received: $ 505.00, receipt number 0970-13976460. (Stoupe, Louise) (Entered: 03/02/2017)

03/02/2017

282 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 244 Order on Motion for Preliminary Injunction, 261 Order on Motion for Reconsideration by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Parascandola, Christina) (Entered: 03/02/2017)

03/03/2017 283 USCA Case Number re: 281 Notice of Appeal. Case number 17-15381, 9TH CCA. (BAR) (Entered: 03/03/2017)

03/03/2017 284 USCA Case Number re: 282 Notice of Appeal, 281 Notice of Appeal. Case number 17-15381, 17-15383, 9TH CCA. (BAR) (Entered: 03/03/2017)

03/13/2017

285 ORDER granting in part and denying in part the 265 Motion for Civil Contempt. Signed by Senior Judge David C Bury on 3/13/2017. (SEE ORDER FOR FURTHER DETAILS.)(BAR) (Entered: 03/13/2017)

03/20/2017

286 NOTICE re: Compliance with Court's Order by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self re: 285 Order on Motion for Sanctions . (Celone, Michael) (Entered: 03/20/2017)

04/04/2017 287 NOTICE of Attorney Withdrawal Daniel J. Pochoda filed by Kathleen E Brody. (Brody, Kathleen) (Entered: 04/04/2017)

04/07/2017

288 NOTICE OF ATTORNEY APPEARANCE: C. Frederick Sheffield appearing for Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. . (Sheffield, Carlton) (Entered: 04/07/2017)

04/07/2017 289 NOTICE of Service of Discovery filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Sheffield, Carlton) (Entered: 04/07/2017)

04/13/2017

290 NOTICE re: Notice of Correction and Status Update by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self re: 285 Order on Motion for Sanctions, 275 Response in Opposition to Motion . (Attachments: # 1 Affidavit Exhibit 1, # 2 Affidavit Exhibit 2, # 3 Affidavit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Affidavit Exhibit 6)(Davila, Yamileth) (Entered: 04/13/2017)

04/13/2017 291 MOTION to Stay District Court Proceedings by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self.

(Attachments: # 1 Text of Proposed Order)(Davila, Yamileth) (Entered: 04/13/2017)

04/24/2017

292 Joint MOTION to Continue Expert Deadlines until 30 Days Following Ruling on Defendants Motion to Stay by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Esposito, Robert) (Entered: 04/24/2017)

04/26/2017

293 RESPONSE in Opposition re: 291 MOTION to Stay District Court Proceedings Plaintiffs' Opposition to Defendants' Motion to Stay District Court Proceedings Pending Interlocutory Appeal filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Exhibit 1)(Stoupe, Louise) (Entered: 04/26/2017)

04/28/2017

294 ORDER granting 292 Motion to Continue Expert Deadlines until 30 Days Following Ruling on Defendants Motion to Stay, extending all expert deadlines in this case until 30 days following entry of the Court's order on Defendants Motion to Stay (Dkt. 291 ), which is pending but not yet fully briefed. IT IS FURTHER ORDERED that these continuances are contingent on the Court's denial of the Motion to Stay and will be unnecessary in the event the Court grants the stay. Signed by Senior Judge David C Bury on 4/28/2017. (See attached PDF for complete information)(DLC) (Entered: 04/28/2017)

05/01/2017

295 MOTION to Withdraw as Attorney James J. Cekola as Counsel of Record for Plaintiffs by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw James J. Cekola as Counsel of Record for Plaintiffs)(Cekola, James) (Entered: 05/01/2017)

05/03/2017

296 REPLY to Response to Motion re: 291 MOTION to Stay District Court Proceedings filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit Defendants-Appellees' Brief on Appeal)(Celone, Michael) (Entered: 05/03/2017)

05/05/2017

297 ORDER granting 295 Motion to Withdraw as Attorney. Attorney James J Cekola terminated from representation of Plaintiffs. Ordered by Senior Judge David C Bury. (DCB, gb) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 05/05/2017)

05/25/2017

298 ORDER that the Motion for Stay of Proceedings, Stay of Expert Discovery, or Alternatively 90-day Stay of Video Evidence, (Doc. 291 ) is GRANTED IN PART AND DENIED IN PART. Signed by Senior Judge David C Bury on 5/25/2017. (see PDF attached) (SIB) (Entered: 05/25/2017)

05/26/2017 299 NOTICE of Service of Discovery filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Sheffield, Carlton) (Entered: 05/26/2017)

08/22/2017

300 Joint MOTION for Leave To Take Deposition Outside of Fact Discovery Period by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Mayer, Colette) Modified on 8/28/2017 (BAR). (Entered: 08/22/2017)

08/28/2017

301 ORDER granting 300 Joint Motion for Leave to Take Deposition Outside of Fact Discovery Period. Ordered that Plaintiffs are granted leave to take the deposition of Christopher Defreitas on 9/14/2017. Signed by Senior Judge David C Bury on 8/28/2017.(BAR) (Entered: 08/28/2017)

08/30/2017

302 NOTICE of Appearance by William Bradford Peard on behalf of Norlan Flores, Unknown Parties. (Peard, William) (Entered: 08/30/2017)

09/12/2017

303 Consent MOTION for Leave to File Excess Pages for Motion for Protective Order by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Fabian, Sarah) (Entered: 09/12/2017)

09/12/2017

304 MOTION for Protective Order by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Allen, # 3 Exhibit Dean, # 4 Exhibit ShawnTech Assessment, # 5 Exhibit ShawnTech Proposal)(Fabian, Sarah) (Entered: 09/12/2017)

09/12/2017

305 MOTION for Ruling Regarding Monitoring of the Preliminary Injunction Order by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Fabian, Sarah) (Entered: 09/12/2017)

09/18/2017

306 ORDER on Defendant's Unopposed Motion for Enlargement of Page Limit. The motion (Doc. 303 ) is GRANTED. Signed by Senior Judge David C Bury on 9/15/2017. (See Order for details) (DPS) (Entered: 09/18/2017)

09/26/2017 307 NOTICE of Confidential Doc. Designation Lodging pursuant to LRCiv.5.6.d. (Mayer, Colette) (Entered: 09/26/2017)

09/26/2017

308 *FILED AT DOCS. 321 AND 322 --SEALED LODGED Proposed. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Unknown Parties. (Attachments: # 1 Balassone Decl. ISO Pltf's Omnibus Opp'n, # 2 Appendix of Exhs to Pltf's Omnibus

Opp'n, # 3 Appendix Part 1 Exhs 1-15, # 4 Appendix Part 2 Exhs 1630)(Mayer, Colette) *Modified on 11/14/2017 to file Per Order doc. 320 (DLC). (Entered: 09/26/2017)

10/03/2017

309 Consent MOTION for Leave to File Excess Pages for Reply by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Davila, Yamileth) (Entered: 10/03/2017)

10/03/2017

310 LODGED Proposed Reply to Plaintiffs' Omnibus Opposition re: 309 Consent MOTION for Leave to File Excess Pages for Reply . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Exhibit Ex. 1 (emails), # 2 Exhibit Ex. 2 (Letter of May 22, 2017), # 3 Exhibit Ex. 3 (Leonard Deposition Transcript Excerpts))(Davila, Yamileth) (Entered: 10/03/2017)

10/03/2017

311 NOTICE re: Status Update by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self re: 290 Notice (Other) . (Attachments: # 1 Exhibit Ex. 1 (CBP Tracking Chart), # 2 Exhibit Ex. 2 (Shivers Declaration))(Davila, Yamileth) (Entered: 10/03/2017)

10/04/2017

312 ORDER granting 309 Motion for Leave to File Excess Pages Re: Reply to Omnibus Opposition to Motion for Protective Order and Motion for Order Governing Monitoring of Compliance. Ordered by Senior Judge David C Bury.(DCB, gb)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/04/2017)

10/04/2017

314 REPLY to Plaintiff's Omnibus Opposition to Defendants' 304 Motion for Protective Order and 305 Motion for Order Governing Monitoring of Compliance filed by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Davila, Yamileth) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(SIB) (Entered: 10/06/2017)

10/06/2017

313 Consent MOTION for Extension of Time to File Motion to Seal Documents and/or Notice of Withdrawal of Confidentiality Designations Under L.R. 5.6 until October 13, 2017 by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Sheffield, Carlton) (Entered: 10/06/2017)

10/13/2017 315 MOTION to Seal Document 308 Sealed Lodged Proposed Document, 307 Notice of Confidential Doc. Designation Lodging (LRCiv 5.6.(d)) by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla,

Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Sheffield, Carlton) (Entered: 10/13/2017)

10/17/2017

316 Consent MOTION for Extension of Time Extending Expert Discovery Deadlines by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Celone, Michael) (Entered: 10/17/2017)

10/18/2017

317 ORDER granting 313 Motion for Extension of Time Deadline to File Motion to Seal. Ordered by Senior Judge David C Bury. (DCB, gb)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/18/2017)

10/18/2017

318 ORDER granting 316 Motion for Extension of Time Deadline for Expert Discovery as follows: Defendants' Expert Reports shall be due by November 6, 2017; Plaintiffs' Rebuttal Expert Reports shall be due by November 20, 2017, and Expert Discovery shall close on January 12, 2018. Ordered by Senior Judge David C Bury.(DCB, gb) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/18/2017)

11/09/2017

319 MOTION to Substitute Party: substituting Elaine C. Duke in place of Jeh Johnson by Michael J Fisher, Jeh Johnson, R Gil Kerlikowske, Manuel Padilla, Jr, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Sheffield, Carlton) (Entered: 11/09/2017)

11/14/2017

320 ORDER granting 315 Motion to Seal Document. IT IS FURTHER ORDERED that the Omnibus Opposition (Doc. 308) may be filed into the record; it shall not be sealed. IT IS FURTHER ORDERED that all the attachments (Docs. 308-1 through 308- 4) are SEALED AND STRICKEN. IT IS FURTHER ORDERED that the exhibits to the Omnibus Opposition (Doc. 308) shall be refiled, excepting exhibits 13, 15 through 24, and 30 which shall be filed separately under seal. Signed by Senior Judge David C Bury on 11/8/2017.(DLC) (Entered: 11/14/2017)

11/14/2017

321 PLAINTIFFS' OMNIBUS OPPOSITION to Defendants' 304 MOTION for Protective Order and 305 MOTION for Ruling Regarding Monitoring of the Preliminary Injunction Order filed by Unknown Parties. (DLC) (Entered: 11/14/2017)

11/14/2017 322 (*STRICKEN BY ORDER DOC. 320 )-- Exhibits 308-1 thru 308-4 by Unknown Parties. (Attachments: # 1 Exhibit 308-2, # 2 Exhibit 308-3, # 3 Exhibit 308-4)(DLC) (Entered: 11/14/2017)

11/15/2017 323 ORDER granting 319 Motion to Substitute Party Names pursuant to FRCP 25(d). Ordered that Elaine C Duke shall be substituted for Jeh

Johnson, that Kevin K McAleenan shall be substituted for R. Gil Kerlikowske, that Carla L Provost shall be substituted for Michael J. Fisher, and Rodolfo Karisch shall be substituted for Jeffrey Self and Manuel Padilla, Jr.. Signed by Senior Judge David C Bury on 11/13/2017.(BAR) (Entered: 11/15/2017)

11/15/2017

324 DECLARATION of Elizabeth Balassone re: 321 Response in Opposition to Motion by Plaintiff Unknown Parties. (Attachments: # 1 Appendix, # 2 Appendix Part 1 (Public))(Mayer, Colette) (Entered: 11/15/2017)

11/15/2017

325 *SEALED EXHIBITS to 321 Plaintiffs' Omnibus Opposition to Defendants' 305 MOTION for Ruling Regarding Monitoring of the Preliminary Injunction Order, 304 MOTION for Protective Order Appendix (Part 2 - Sealed) by Unknown Parties. (Mayer, Colette) *Modified event from response to exhibits on 11/16/2017 (CEI). (Entered: 11/15/2017)

12/15/2017

Remark: Pro hac vice motion granted for Akari Atoyama-Little on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 12/15/2017)

12/19/2017

326 ORDER denying 304 Motion for Protective Order/Motion for Relief; denying 305 Motion for Order re: Monitoring Compliance with Preliminary Injunction. Further ordered that the Notice 311 is stricken. Signed by Senior Judge David C Bury on 12/18/2017. (SEE ORDER FOR FURTHER INFORMATION.) (BAR) (Entered: 12/19/2017)

01/17/2018

327 Joint MOTION for Extension of Time to extend by eight days the due date for briefing regarding wideo requests under the Court's Order of December 19, 2017 by Elaine C Duke, Michael J Fisher, Jeh Johnson, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Text of Proposed Order Proposed Order)(Parascandola, Christina) (Entered: 01/17/2018)

01/19/2018

328 ORDER granting 327 Motion for Extension of Time Deadline to January 26, 2018, for the parties to jointly submit briefs if they cannot agree on the monthly number of requests for video recordings. THERE SHALL BE NO FURTHER EXTENSIONS OF TIME. Ordered by Senior Judge David C Bury.(DCB, gb)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/19/2018)

01/26/2018 329 BRIEF re: 326 Order on Motion for Protective Order, Order on Motion for Ruling by Plaintiff Unknown Parties. (Attachments: # 1 Balassone

Decl ISO Pltfs Brief, # 2 Appendix of Exhibits ISO Pltfs Brief)(Mayer, Colette) (Entered: 01/26/2018)

01/26/2018

330 BRIEF re: 326 Order on Motion for Protective Order, Order on Motion for Ruling by Defendants Elaine C Duke, Rodolfo Karisch, Kevin K McAleenan, Carla L Provost. (Fabian, Sarah) (Entered: 01/26/2018)

02/06/2018

331 ORDERED that the Plaintiffs shall submit video recording requests to the Defendants on or before the last day of the calendar month for which video data is being requested; requested video data must cover no more than that one calendar month. Ordered that within 21 days of the filing date of this order, the Defendants shall either produce or show cause for its non-production of video-recordings from the stations during their expert witness visits (including the day of the inspection and the two days prior) in September 2017, to the extent the Defendants experts either relied on or will rely on any such inspection. Signed by Senior Judge David C Bury on 2/5/2018. (SEE ORDER FOR FURTHER DETAILS.)(BAR) (Entered: 02/06/2018)

02/09/2018 332 NOTICE of Attorney Withdrawal Melissa E. Crow filed by Melissa Ellen Crow. (Crow, Melissa) (Entered: 02/09/2018)

02/15/2018

333 MOTION to Substitute Party: substituting Kristjen M. Nielsen in place of Elaine C. Duke by Elaine C Duke, Michael J Fisher, Jeh Johnson, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Parascandola, Christina) (Entered: 02/15/2018)

02/20/2018

334 RESPONSE TO ORDER TO SHOW CAUSE re: 331 Order, Set Deadlines by Defendants Elaine C Duke, Rodolfo Karisch, Kevin K McAleenan, Carla L Provost. (Fabian, Sarah) (Entered: 02/20/2018)

02/28/2018

335 ORDER granting 333 Motion to Substitute Party: Kirstjen Nielsen (Secretary of the U.S. Department of Homeland Security)added; Elaine C Duke (Acting Secretary of the U.S. Department of Homeland Security) terminated. Ordered by Senior Judge David C Bury. (DCB, gb) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 02/28/2018)

03/13/2018

336 ORDER of USCA re: 282 Notice of Appeal, 281 Notice of Appeal. The panel has voted to deny the petition for panel rehearing. The petition for panel rehearing and the petition for rehearing en banc are denied.(BAC) (Entered: 03/13/2018)

03/21/2018 337 MANDATE of USCA re: 282 Notice of Appeal, 281 Notice of Appeal. AFFIRMED. (Attachments: # 1 Opinion, # 2 NDA)(KAH) (Entered: 03/21/2018)

03/22/2018

338 MOTION for Extension of Time File Dispositive Motions until May 21, 2018 by Rodolfo Karisch, Kevin K McAleenan, Kristjen Nielsen, Carla L Provost. (Attachments: # 1 Text of Proposed Order)(Fabian, Sarah) (Entered: 03/22/2018)

03/23/2018 339 ORDER granting 338 Motion for Extension of Dispositive Motion Deadline. Dispositive motions due by 5/4/2018. Signed by Senior Judge David C Bury on 3/23/2018. (BAR) (Entered: 03/23/2018)

03/26/2018 340 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Nora A Preciado. (Preciado, Nora) (Entered: 03/26/2018)

03/26/2018 341 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Linton Joaquin. (Joaquin, Linton) (Entered: 03/26/2018)

03/26/2018 342 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Karen Cassandra Tumlin. (Tumlin, Karen) (Entered: 03/26/2018)

04/27/2018 343 MOTION to Withdraw as Attorney Robert J. Esposito by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Esposito, Robert) (Entered: 04/27/2018)

05/03/2018

344 ORDER granting 343 Motion to Withdraw as Attorney. Robert J. Esposito is withdrawn as counsel of record for Plaintiffs. Signed by Senior Judge David C Bury on 5/2/2018. (SIB) (Entered: 05/03/2018)

05/04/2018 345 NOTICE of Confidential Doc. Designation Lodging pursuant to LRCiv.5.6.d. (Mayer, Colette) (Entered: 05/04/2018)

05/04/2018

346 FILED at (Doc. 377 ) SEALED LODGED Proposed Plaintiffs' Motion for Partial Summary Judgment. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Unknown Parties. (Attachments: # 1 Plaintiffs' Separate Statement ISO Partial MSJ, # 2 Cortina Decl ISO Plaintiffs' Partial MSJ, # 3 Stenger Decl ISO Plaintiffs' Partial MSJ, # 4 Ullman Decl ISO Plaintiffs' Partial MSJ, # 5 Appendix of Exhibits, # 6 App. Part I- Exs. 1-12, # 7 App. Part II-Exs. 13-23)(Mayer, Colette) Modified on 1/18/2019 (KAH). (Entered: 05/04/2018)

05/04/2018 347 MOTION to Submit Exhibit Via Dvd in Support of Motion for Partial Summary Judgment by Unknown Parties. (Attachments: # 1 Proposed Order)(Mayer, Colette) (Entered: 05/04/2018)

05/04/2018

348 Additional Attachments to Main Document re: 345 Notice of Confidential Doc. Designation Lodging (LRCiv 5.6.(d)) Certificate of Service by Plaintiff Unknown Parties. (Mayer, Colette) (Entered: 05/04/2018)

05/15/2018

349 MOTION to Withdraw as Attorney Sarah L Vuong by Rodolfo Karisch, Kevin K McAleenan, Kristjen M Nielsen, Carla L Provost. (Attachments: # 1 Text of Proposed Order)(Vuong, Sarah) (Entered: 05/15/2018)

05/18/2018 350 ORDER granting 347 Motion to Submit Exhibit Via Dvd in Support of Motion for Partial Summary Judgment. Signed by Senior Judge David C Bury on 5/15/18. (KAH) (Entered: 05/18/2018)

05/18/2018

351 MOTION to Seal Document Exhibits 6 & 9 and to Partially Seal Exhibit 18 to Plaintiffs' Motion for Partial Summary Judgment, ECF 346, by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kristjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 18 - Redacted, # 2 Exhibit Exhibit A - Email Correspondence with Plaintiffs' Counsel, # 3 Text of Proposed Order)(Parascandola, Christina) (Entered: 05/18/2018)

05/22/2018 352 ORDER granting 349 Motion to Withdraw Sarah L. Vuong as Attorney of record for Defendants. Signed by Senior Judge David C Bury on 5/18/2018. (BAR) (Entered: 05/22/2018)

05/23/2018

353 Supplemental MOTION to Seal Document 345 Notice of Confidential Doc. Designation Lodging (LRCiv 5.6.(d)), 346 Sealed Lodged Proposed Document by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kristjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 8 - Redacted, # 2 Text of Proposed Order)(Parascandola, Christina) (Entered: 05/23/2018)

06/01/2018

354 RESPONSE in Opposition re: 351 MOTION to Seal Document Exhibits 6 & 9 and to Partially Seal Exhibit 18 to Plaintiffs' Motion for Partial Summary Judgment, ECF 346,, 353 Supplemental MOTION to Seal Document 345 Notice of Confidential Doc. Designation Lodging (LRCiv 5.6.(d)), 346 Sealed Lodged Proposed Document filed by Unknown Parties. (Mayer, Colette) (Entered: 06/01/2018)

06/05/2018

355 FILED at (Doc. 378 ) SEALED LODGED Proposed Defendants' Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kristjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Supplement Controverting Statement of Facts, # 2 Appendix Index of Exhibits)(Parascandola, Christina) Modified on 1/18/2019 (KAH). (Entered: 06/05/2018)

06/05/2018

356 FILED at (Doc. 378 ) SEALED LODGED Proposed Exhibits in Support of Defendants' Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kristjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Parascandola, Christina) Modified on 1/18/2019 (KAH). (Entered: 06/05/2018)

06/07/2018

357 NOTICE re: regarding pleadings lodged under seal by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kristjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self re: 351 MOTION to Seal Document Exhibits 6 & 9 and to Partially Seal Exhibit 18 to Plaintiffs' Motion for Partial Summary Judgment, ECF 346,, 355 Sealed Lodged Proposed Document, 353 Supplemental MOTION to Seal Document 345 Notice of Confidential Doc. Designation Lodging (LRCiv 5.6.(d)), 346 Sealed Lodged Proposed Document , 356 Sealed Lodged Proposed Document, 345 Notice of Confidential Doc. Designation Lodging (LRCiv 5.6.(d)), 346 Sealed Lodged Proposed Document . (Parascandola, Christina) (Entered: 06/07/2018)

06/13/2018 358 NOTICE of Attorney Withdrawal Brenda Munoz Furnish filed by Kathleen E Brody. (Brody, Kathleen) (Entered: 06/13/2018)

06/19/2018

359 REPLY re: 346 Sealed Lodged Proposed Document Motion for Partial Summary Judgment by Plaintiff Unknown Parties. (Attachments: # 1 Cortina Reply Decl ISO Plaintiffs' Partial MSJ, # 2 Appendix of Exhibits, # 3 Exhibit 1)(Mayer, Colette) (Entered: 06/19/2018)

06/23/2018

360 MOTION to Withdraw as Attorney Yamileth G. Davila by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kristjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Davila, Yamileth) (Entered: 06/23/2018)

07/05/2018 361 ORDER granting 360 Motion to Withdraw Yamileth G. Davila as counsel of record for Defendants. Signed by Senior Judge David C Bury on 7/5/2018. (BAR) (Entered: 07/05/2018)

07/13/2018 362 NOTICE of Attorney Withdrawal filed by Aaron Reichlin-Melnic. (Reichlin-Melnic, Aaron) (Entered: 07/13/2018)

08/03/2018 363 NOTICE of Attorney Withdrawal Samuel Christopher Cortina filed by Samuel Christopher Cortina. (Cortina, Samuel) (Entered: 08/03/2018)

08/15/2018

364 MOTION for Leave to File NEW VIDEO EVIDENCE IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DEFENDANTS OBLIGATION TO PROVIDE BEDS by Unknown Parties. (Attachments: # 1 Balassone Decl ISO Motion for Leave, # 2 Appendix Part I, # 3 Appendix Part II, # 4 Appendix Part III, # 5 Proposed Order)(Mayer, Colette) (Entered: 08/15/2018)

08/28/2018

365 First MOTION for Extension of Time to File Response/Reply as to 364 MOTION for Leave to File NEW VIDEO EVIDENCE IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DEFENDANTS OBLIGATION TO PROVIDE BEDS by Rodolfo Karisch, Kevin K McAleenan, Kristjen M Nielsen, Carla L Provost. (Attachments: # 1 Text of Proposed Order)(Parascandola, Christina) (Entered: 08/28/2018)

09/05/2018

366 RESPONSE in Opposition re: 364 MOTION for Leave to File NEW VIDEO EVIDENCE IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DEFENDANTS OBLIGATION TO PROVIDE BEDS filed by Rodolfo Karisch, Kevin K McAleenan, Kristjen M Nielsen, Carla L Provost. (Attachments: # 1 Appendix Index of Exhibits, # 2 Exhibit A - Declaration, # 3 Exhibit B - Declaration, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Parascandola, Christina) (Entered: 09/05/2018)

09/12/2018

367 REPLY to Response to Motion re: 364 MOTION for Leave to File NEW VIDEO EVIDENCE IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DEFENDANTS OBLIGATION TO PROVIDE BEDS filed by Unknown Parties. (Mayer, Colette) (Entered: 09/12/2018)

09/13/2018

368 ORDER granting 365 Motion for Extension of Time to File Response re: 364 MOTION for Leave to Submit New Video Evidence. Signed by Senior Judge David C Bury on 9/11/2018. (BAR) (Entered: 09/13/2018)

11/02/2018 369 NOTICE of Attorney Withdrawal Karen Cassandra Tumlin filed by Karen Cassandra Tumlin. (Tumlin, Karen) (Entered: 11/02/2018)

12/04/2018

370 IT IS ORDERED granting 364 the Motion for Leave to File New Video Evidence, with Defendant's Response due within 28 days and the Reply due in 14 days. Ordered by Senior Judge David C. Bury.(DCB, me)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 12/04/2018)

12/27/2018 371 MOTION to Stay re: 370 Order on Motion for Leave to File new, additional evidence by Rodolfo Karisch, Kevin K McAleenan, Kirstjen

M Nielsen, Carla L Provost. (Attachments: # 1 Text of Proposed Order)(Parascandola, Christina) (Entered: 12/27/2018)

12/28/2018

372 RESPONSE to Motion re: 371 MOTION to Stay re: 370 Order on Motion for Leave to File new, additional evidence filed by Norlan Flores, Unknown Parties. (Mayer, Colette) (Entered: 12/28/2018)

12/31/2018

373 MOTION to Stay re: 372 Response to Motion, 371 MOTION to Stay re: 370 Order on Motion for Leave to File new, additional evidence by Rodolfo Karisch, Kevin K McAleenan, Kirstjen M Nielsen, Carla L Provost. (Attachments: # 1 Text of Proposed Order Proposed order)(Parascandola, Christina) (Entered: 12/31/2018)

01/02/2019

374 **(AMENDED BY DOC 375 )-ORDER granting 371 , 373 Motions to Stay. Ordered that the case is stayed commensurate with the lapse in appropriations. It is further ordered that the Plaintiffs shall provide notice to the Court when the Department of Justice has resumed normal litigation functions. Ordered that the Plaintiffs shall file the Response to the Motion for Leave to Submit New Additional, Evidence within seven days of the Notice. Signed by Senior Judge David C Bury on 1/2/2019. (BAR) Modified on 1/3/2019 (BAR). (Entered: 01/02/2019)

01/03/2019

375 AMENDED ORDER re: 374 Order, granting 371 , 373 Motions to Stay. Ordered that the case is stayed commensurate with the lapse in appropriations. It is further ordered that the Defendants shall provide notice to the Court when the Department of Justice has resumed normal litigation functions. Ordered that the Defendants shall file the Response to the Motion for Leave to Submit New Additional, Evidence within seven days of the Notice. Signed by Senior Judge David C Bury on 1/3/2019. (BAR) (Entered: 01/03/2019)

01/18/2019

376 ORDER granting in part and denying in part 351 Motion to Seal Document. The Clerk of the Court shall file the Motion for Partial Summary Judgmentlodged under seal into the public Record without sealing, except for Attachment 6, Exhibits 1-12. Within five days of the filing date of this Order, the Plaintiffs shall file Exhibits 1-12 into the record, with Exhibits 6 and 8 redacted. The Clerk of the Court shall file the Response to the Motion for Partial Summary Judgment into the public Record without sealing. Signed by Senior Judge David C Bury on 1/16/19. (KAH) (Entered: 01/18/2019)

01/18/2019

377 MOTION for Partial Summary Judgment Regarding Defendants' Obligation to Provide Beds by Norlan Flores, Unknown Parties. (Attachments: # 1 Plaintiffs' Separate Statement ISO Partial MSJ, # 2 Cortina Decl ISO Plaintiffs' Partial MSJ, # 3 Stenger Decl ISO Plaintiffs' Partial MSJ, # 4 Ullman Decl ISO Plaintiffs' Partial MSJ, # 5

Appendix of Exhibits, # 6 App. Part I- Exs. 1-12, # 7 App. Part II-Exs. 13-23)(KAH) (Entered: 01/18/2019)

01/18/2019

378 RESPONSE in Opposition to Motion re: 377 MOTION for Partial Summary Judgment filed by Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost. (Attachments: # 1 Supplement Controverting Statement of Facts, # 2 Appendix Index of Exhibits, # 3 Exhibit, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J)(KAH) (Entered: 01/18/2019)

01/23/2019 379 REDACTION to 377 MOTION for Partial Summary Judgment Exhibits 1-12 by Unknown Parties. (Mayer, Colette) (Entered: 01/23/2019)

02/04/2019

380 NOTICE re: regarding end of lapse in appropriations by Kevin K McAleenan, Kirstjen M Nielsen, Carla L Provost, Jeffrey Self re: 375 Order, 370 Order on Motion for Leave to File . (Attachments: # 1 Exhibit)(Parascandola, Christina) (Entered: 02/04/2019)

02/19/2019

381 REPLY to Response to Motion re: 364 MOTION for Leave to File NEW VIDEO EVIDENCE IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING DEFENDANTS OBLIGATION TO PROVIDE BEDS filed by Unknown Parties. (Attachments: # 1 Stenger Decl ISO Reply, # 2 Balassone Decl ISO Reply, # 3 Appendix)(Mayer, Colette) (Entered: 02/19/2019)

03/01/2019

382 ORDER that Supplemental Partial Motion to Seal 353 , is ruled on pursuant to Order 376 granting in part and denying in part Partial Motion to Seal 351 . Ordered by Senior Judge David C Bury.(DCB, gb) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 03/01/2019)

03/15/2019

383 ORDERED that the Plaintiff's 377 Motion for Partial Summary Judgment is denied. Further ordered that the stay in this case is lifted. Ordered that the parties shall jointly file Pretrial Order in this case within 30 days. Signed by Senior Judge David C Bury on 3/15/2019. (BAR) (Entered: 03/15/2019)

04/09/2019

384 NOTICE re: Joint Notice of Extending Joint Pretrial Order Due Date Pursuant to Agreement of the Parties and Approval by Chambers by Unknown Parties re: 383 Order on Motion for Partial Summary Judgment . (Mayer, Colette) (Entered: 04/09/2019)

05/13/2019 385 STIPULATION re: 384 Notice (Other), 383 Order on Motion for Partial Summary Judgment to Extend Joint Pretrial Order Due Date to

May 31, 2019 by Rodolfo Karisch, Kevin K McAleenan, Kirstjen M Nielsen, Carla L Provost, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Parascandola, Christina) (Entered: 05/13/2019)

05/21/2019 386 NOTICE of Attorney Withdrawal William B. Peard filed by Kathleen E Brody. (Brody, Kathleen) (Entered: 05/21/2019)

05/23/2019

387 ORDER granting 385 Stipulation to Extend Pretrial Order Due Date to May 31, 2019. It is further ordered that the Clerk of the Court shall update the court record to reflect the following: Kevin K. McAleenan has assumed the role of Acting Secretary of Homeland Security in place of Kristjen M. Nielsen and Jeffrey D. Self was named Acting Chief Patrol Agent-Tucson Sector in place of Rodolfo Karisch. Signed by Senior Judge David C Bury on 5/22/2019. (BAR) (Entered: 05/23/2019)

05/24/2019 388 NOTICE of Appearance by Jack Williford Londen on behalf of Unknown Parties. (Londen, Jack) (Entered: 05/24/2019)

05/29/2019

389 Consent MOTION for Extension of Time to file the Joint Pretrial Order by Fourteen Days by Kevin K McAleenan, Carla L Provost, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Parascandola, Christina) (Entered: 05/29/2019)

05/31/2019

390 MOTION to Seal Document Portion of Plaintiffs' Proposed Pretrial Order by Unknown Parties. (Attachments: # 1 [Proposed] Order Granting Plaintiffs' Motion to File Under Seal Portion of Plaintiffs' Proposed Pretrial Order)(Londen, Jack) (Entered: 05/31/2019)

05/31/2019

391 NOT FILED per (Doc. 394) SEALED LODGED Proposed [Sealed] Plaintiffs' Proposed Pretrial Order re: 390 MOTION to Seal Document Portion of Plaintiffs' Proposed Pretrial Order. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Unknown Parties. (Londen, Jack) Modified on 7/1/2019 (KAH). (Entered: 05/31/2019)

05/31/2019 392 NOTICE of Filing - Proposed Pretrial Order filed by Unknown Parties (Londen, Jack) (Entered: 05/31/2019)

06/03/2019

Remark: Pro hac vice motion granted for John Sebastiano Douglass on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/03/2019)

06/05/2019 393 ORDER granting 389 Motion for Extension of Time. The Joint Pretrial Order being due: June 14, 2019. Signed by Senior Judge David C Bury on 6/5/2019. (ARC) (Entered: 06/05/2019)

06/14/2019

394 ORDER denying 390 Motion to Seal Document: the lodged Plaintiff's Proposed Pretrial Order (Doc. 391) shall remain lodged, only. Ordered by Senior Judge David C Bury. (DCB, gb) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 06/14/2019)

06/15/2019 395 STIPULATION to Seal Portion of Joint Pretrial Order by Unknown Parties. (Attachments: # 1 Granting Joint Stipulation to Seal Portion of Joint Pretrial Order)(Londen, Jack) (Entered: 06/15/2019)

06/15/2019

396 FILED at (Doc. 399 ) SEALED LODGED Proposed Sealed Joint Pretrial Order re: 395 Stipulation. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Unknown Parties. (Londen, Jack) Modified on 7/1/2019 (KAH). (Entered: 06/15/2019)

06/15/2019 397 NOTICE of Filing - Proposed Pretrial Order filed by Unknown Parties (Londen, Jack) (Entered: 06/15/2019)

07/01/2019

398 ORDER granting 395 Stipulation to Seal Portion of Joint Pretrial Order. The Clerk of the Court shall file the lodged Joint Pretrial Order into the record UNDER SEAL. Signed by Senior Judge David C Bury on 6/28/19. (KAH) (Entered: 07/01/2019)

07/01/2019 399 Sealed Document: Joint Pretrial Order by Unknown Parties. (KAH) (Entered: 07/01/2019)

07/09/2019

400 (AMENDED BY DOC 401 )-ORDERED that a Pretrial Conference is set for 9/23/2019 at 01:30 PM in Courtroom 6B, 405 West Congress Street, Tucson, AZ 85701 before Senior Judge David C Bury. Signed by Senior Judge David C Bury on 7/9/2019. (BAR) Modified on 7/10/2019 (BAR). (Entered: 07/09/2019)

07/10/2019

401 AMENDED ORDER: Pretrial Conference set for 9/16/2019 at 10:30 AM in Courtroom 6B, 405 West Congress Street, Tucson, AZ 85701 before Senior Judge David C Bury. Signed by Senior Judge David C Bury on 7/10/2019. (BAR) (Entered: 07/10/2019)

08/14/2019

Remark: Pro hac vice motion(s) granted for Bree Bernwanger on behalf of Plaintiffs Norlan Flores and Unknown Parties. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 08/14/2019)

08/14/2019 402 NOTICE of Appearance by Martin Lieberman on behalf of Norlan Flores, Unknown Parties. (Lieberman, Martin) (Entered: 08/14/2019)

08/14/2019 403 NOTICE of Attorney Withdrawal Kathleen E. Brody filed by Martin Lieberman. (Lieberman, Martin) (Entered: 08/14/2019)

09/16/2019 404 MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Pretrial Conference held on 9/16/2019. Formal order to follow.

APPEARANCES: Bree Bernwanger, Nora Preciado, Colette Mayer, Jack Londen & Pieter DeGanon for Plaintiff(s). Sarah Fabian & Christina Parascandola for Defendant(s). (Court Reporter Cindy Shearman.) Hearing held 10:34 am to 11:18 am. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (ABU) (Entered: 09/16/2019)

09/17/2019

405 ORDER: This matter is set for a Bench Trial on Monday, January 13, 2020 at 09:30 AM for a 13 day trial before Senior Judge David C Bury. Pretrial Conference: Motions in limine, any objections to exhibits or deposition testimony, and any other matters which must be resolved for purposes of trial shall be heard by the Court on Monday, January 6, 2020 at 9:30 a.m.. The parties Joint Proposed Pretrial Order is approved, adopted and incorporated herein by reference. Signed by Senior Judge David C Bury on 9/16/2019. (SEE ORDER FOR FURTHER DETAILS.)(BAR) Modified on 9/17/2019 (BAR). (Entered: 09/17/2019)

09/17/2019 406 TRANSCRIPT REQUEST by Unknown Parties for proceedings held on September 16, 2019, Judge David C Bury hearing judge(s). (Balassone, Elizabeth) (Entered: 09/17/2019)

09/19/2019

407 TRANSCRIPT REQUEST by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self for proceedings held on 9/16/19, Judge David C Bury hearing judge(s). (Parascandola, Christina) (Entered: 09/19/2019)

09/19/2019

408 NOTICE TO FILER OF DEFICIENCY re: AO 435 407 Transcript Request filed by Jeffrey Self, Kirstjen M Nielsen, Kevin K McAleenan, Michael J Fisher, Manuel Padilla, Jr., Carla L Provost, Rodolfo Karisch, R Gil Kerlikowske. Item 17 - TRANSCRIPT REQUESTED: No court proceedings were transcribed or recorded for the requested date of proceeding of 6/19/2019. Item 18 - E-mail address not provided where e-mail copy should be sent. FOLLOW-UP ACTION REQUIRED: Please refile with a valid date of proceeding for transcription in Item 17. If a transcript of the proceeding has already been prepared, please refile with the appropriate category box checked under FIRST COPY. Please refile and provide an email address for delivery. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (NEC) (Entered: 09/19/2019)

09/19/2019

409 AMENDED TRANSCRIPT REQUEST pursuant to 408 Notice of Deficiency by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self for proceedings held on 9/16/19, Judge David C Bury hearing judge(s). (Parascandola, Christina) (Entered: 09/19/2019)

09/20/2019

410 TRANSCRIPT of PRETRIAL CONFERENCE held on 09/16/2019, before Judge David C. Bury. Court Reporter Cindy J. Shearman. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/11/2019. Redacted Transcript Deadline set for 10/21/2019. Release of Transcript Restriction set for 12/19/2019. (NEC) (Entered: 09/20/2019)

09/25/2019 411 NOTICE of Attorney Withdrawal by Nora A. Preciado filed by Nora A Preciado. (Preciado, Nora) (Entered: 09/25/2019)

09/30/2019 412 SUPPLEMENT Plaintiffs' Supplemental Trial Witness Disclosure by Plaintiff Unknown Parties. (Mayer, Colette) (Entered: 09/30/2019)

10/02/2019 413 ORDERED the Pretrial Conference set for 1/6/2020 at 01:30 PM before Senior Judge David C Bury. Signed by Senior Judge David C Bury on 10/2/2019. (BAR) (Entered: 10/02/2019)

10/09/2019

Remark: Pro hac vice motion(s) granted for Alvaro M Huerta on behalf of Plaintiff Norlan Flores. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/09/2019)

10/24/2019

Remark: Pro hac vice motion(s) granted for Alvaro M Huerta on behalf of Plaintiff Unknown Parties. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/24/2019)

10/25/2019 414 STIPULATION Regarding Depositions by Unknown Parties. (Londen, Jack) (Entered: 10/25/2019)

10/28/2019

415 ORDER pursuant to 414 Stipulation Regarding Depositions: extending discovery time to allow stipulated depositions to be taken by Plaintiffs. Signed by Senior Judge David C Bury on 10/28/2019. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DCB, gb) (Entered: 10/28/2019)

10/30/2019 416 NOTICE OF ATTORNEY APPEARANCE: Katelyn Masetta-Alvarez appearing for Kevin K McAleenan, Carla L Provost, Jeffrey Self. . (Masetta-Alvarez, Katelyn) (Entered: 10/30/2019)

11/07/2019 417 NOTICE of Appearance by Aleyda Yvette Borja on behalf of Norlan Flores, Unknown Parties. (Borja, Aleyda) (Entered: 11/07/2019)

11/13/2019

Remark: Pro hac vice motion(s) granted for Karolina J Walters on behalf of Plaintiffs Norlan Flores and Unknown Parties. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/13/2019)

11/20/2019

418 NOTICE of Appearance by William Charles Silvis on behalf of Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Silvis, William) (Entered: 11/20/2019)

12/12/2019 419 TRANSCRIPT REQUEST for future daily trial transcripts by Norlan Flores, Unknown Parties for proceedings held on 1/13/2020, Judge David C Bury hearing judge(s). (Mayer, Colette) (Entered: 12/12/2019)

12/13/2019

420 MOTION in Limine re: Motion for a Ruling on the Admissibility of Summaries, Charts, and Calculations of the Contents of Voluminous e3DM Data Pursuant to Federal Rules of Evidence 104 and 1006 by Unknown Parties. (Attachments: # 1 [Proposed] Order Granting Plaintiffs' Motion for a Ruling on the Admissibility of Summaries, Charts, and Calculations of the Contents of Voluminous e3DM Data Pursuant to Federal Rules of Evidence 104 and 1006)(Londen, Jack) (Entered: 12/13/2019)

12/13/2019

421 Joint MOTION for Extension of Time To File Joint Exhibit List and Deposition Designations by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Text of Proposed Order Proposed Order)(Masetta-Alvarez, Katelyn) (Entered: 12/13/2019)

12/13/2019

422 MOTION in Limine re: To Exclude the Testimony and Expert Report of Robert Mis under Fed. R. Civ. P. 37(c)(1) by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr. (Attachments: # 1 Exhibit Exhibit A Pretrial Transcript, # 2 Exhibit Exhibit B - Supplemental Disclosures (selected pages), # 3 Exhibit Exhibit C - Email RE Robert Mis, # 4 Exhibit Exhibit D - Email RE Robert Mis Expert Report, # 5 Exhibit Exhibit E - Robert Mis Expert Report (selected pages) - Redacted, # 6 Text of Proposed Order Proposed Order)(Masetta-Alvarez, Katelyn) (Entered: 12/13/2019)

12/17/2019

423 ORDER granting 421 Motion for Extension of Time To File Joint Exhibit List and Deposition Designations. The parties Joint Exhibit List and Deposition Designations are due by December 20, 2019. Signed by Senior Judge David C Bury on 12/16/2019. (BAR) (Entered: 12/17/2019)

12/17/2019 424 NOTICE of Attorney Withdrawal Marty Lieberman filed by Aleyda Yvette Borja. (Borja, Aleyda) (Entered: 12/17/2019)

12/18/2019

425 RESPONSE to Motion re: 422 MOTION in Limine re: To Exclude the Testimony and Expert Report of Robert Mis under Fed. R. Civ. P. 37(c)(1) filed by Unknown Parties. (Attachments: # 1 Attachment Excerpts of November 19, 2019 Deposition of Jay Visconti)(Londen, Jack) (Entered: 12/18/2019)

12/18/2019

426 RESPONSE in Opposition re: 420 MOTION in Limine re: Motion for a Ruling on the Admissibility of Summaries, Charts, and Calculations of the Contents of Voluminous e3DM Data Pursuant to Federal Rules of Evidence 104 and 1006 filed by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Masetta-Alvarez, Katelyn) (Entered: 12/18/2019)

12/20/2019

427 MOTION for Extension of Time To File Memorandum in Support of Objections to Plaintiffs' Deposition Designations by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Text of Proposed Order Proposed Order)(MasettaAlvarez, Katelyn) (Entered: 12/20/2019)

12/20/2019 428 STIPULATION to Seal Portions of the Parties' Deposition Designations by Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Mayer, Colette) (Entered: 12/20/2019)

12/20/2019

429 FILED at (Doc. 434 , 443 , 44 ) SEALED LODGED Proposed Joint Appendix of Highlighted Transcripts to the Parties' Designation of Deposition Testimony re: 428 Stipulation. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4, # 5 Appendix 5, # 6 Appendix 6, # 7 Appendix 7, # 8 Appendix 8, # 9 Appendix 9, # 10 Appendix 10, # 11 Appendix 11, # 12 Appendix 12, # 13 Appendix 13, # 14 Appendix 14, # 15 Appendix 15, # 16 Appendix 16, # 17 Appendix 17, # 18 Appendix 18, # 19 Appendix 19, # 20 Appendix 20, # 21 Appendix 21, # 22 Appendix 22, # 23 Appendix 23, # 24 Appendix 24, # 25 Appendix 25, # 26 Appendix 26, # 27 Appendix 27)(Mayer, Colette) Modified on 12/26/2019 (KAH). (Entered: 12/20/2019)

12/20/2019

430 MEMORANDUM Regarding Objections to Defendants' Deposition Designations and Counter-Designations --filed concurrently with 429 Sealed Lodged Proposed Document by Plaintiffs Norlan Flores, Unknown Parties. (Attachments: # 1 Attachment A, # 2 Attachment B)(Mayer, Colette) (Entered: 12/20/2019)

12/20/2019 431 *Exhibit List - Joint Trial Exhibit List by Norlan Flores, Unknown Parties. (Mayer, Colette) *Modified restriction from public to sealed per operations supervisor on 1/6/2020 (CEI). (Entered: 12/20/2019)

12/22/2019

432 MEMORANDUM in Support of Defendants' Objections to Plaintiffs' Deposition Designations by Defendants Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Exhibit Defendants' Designations w/ Plaintiffs' Objections and Counter Designations, as well as Defendants' Reply Designations and Objection)(Masetta-Alvarez, Katelyn) (Entered: 12/22/2019)

12/26/2019

433 ORDER: the Motion for Extension of Time to File Memorandum in Support of Objections to Plaintiff's Deposition Designations (Doc. 427 ) is GRANTED to December 23, 2019. It is further ordered that the Stipulation to Seal Portions of the Parties' Deposition Designations (Doc. 428 ) is GRANTED for the Clerk of the Court to SEAL as follows: Lodged Appendixes 1, 2, 3, 7, 9, 12, 13, 15, 16, 19, 20, 22, 25, and 27. Signed by Senior Judge David C Bury on 12/26/19. (KAH) (Entered: 12/26/2019)

12/26/2019

434 Sealed Document: Joint Appendix of Highlighted Transcripts to the Parties' Designation of Deposition Testimony by Norlan Flores, Unknown Parties. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 7, # 5 Appendix 9, # 6 Appendix 12, # 7 Appendix 13, # 8 Appendix 15, # 9 Appendix 16, # 10 Appendix 19, # 11 Appendix 20, # 12 Appendix 22, # 13 Appendix 25, # 14 Appendix 27)(KAH) (Entered: 12/26/2019)

01/02/2020

435 TRANSCRIPT REQUEST for Daily Transcripts by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self for proceedings held on 01/13/2020 - 01/24/2020, Judge David C Bury hearing judge(s). (Masetta-Alvarez, Katelyn) (Entered: 01/02/2020)

01/03/2020 436 Exhibit List --Corrected Joint Trial Exhibit List by Norlan Flores, Unknown Parties. (Attachments: # 1 Corrected List)(Mayer, Colette) (Entered: 01/03/2020)

01/06/2020 437 TRANSCRIPT REQUEST by Kevin K McAleenan, Carla L Provost, Jeffrey Self for proceedings held on 1/6/2020, Judge David C Bury hearing judge(s). (Parascandola, Christina) (Entered: 01/06/2020)

01/06/2020 438 NOTICE of Confidential Doc. Designation Lodging of Plaintiffs' Trial Brief and Proposed Findings of Fact and Conclusions of Law pursuant to LRCiv.5.6.d. (Londen, Jack) (Entered: 01/06/2020)

01/06/2020

439 FILED at (Doc. 455 ) SEALED LODGED Proposed Plaintiffs' Trial Brief. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Plaintiffs' Proposed Findings of Fact and Conclusions of Law)(Londen, Jack) Modified on 1/16/2020 (KAH). (Entered: 01/06/2020)

01/06/2020

440 TRANSCRIPT REQUEST for Pretrial Conference by Norlan Flores, Unknown Parties for proceedings held on 1/6/2020, Judge David C Bury hearing judge(s). (Mayer, Colette) (Entered: 01/06/2020)

01/06/2020 441 Proposed Findings of Fact by Kevin K McAleenan, Carla L Provost, Jeffrey Self. (Celone, Michael) (Entered: 01/06/2020)

01/06/2020

445 *MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Final Pretrial Conference held on 1/6/2020. Bench Trial set 1/13/2020 at 9:15 am is affirmed. The Court Orders the caption be changed accordingly. The Court requests the parties submit relevant excerpts. The parties provide a new set of depositions. It is ordered granting 420 Motion in Limine and denying 422 Motion in Limine. Request to seal the courtroom is denied. See attached PDF for additional detail.

APPEARANCES: Jack Londen, Colette Reiner Mayer, and Alvaro Huerta for Plaintiffs. Sarah Fabian and Katelyn Masetta-Alvarez for Defendants. (Court Reporter Erica McQuillen.) Hearing held 1:30 pm to 2:06 pm.(SMJ) *Modified file date from 1/9/2020 to 1/6/2020; NEF regenerated on 1/9/2020 to correct file date (SMJ)(CEI). (Entered: 01/09/2020)

01/08/2020

442 AMENDED ORDER granting 428 STIPULATION to Seal Portions of the Parties' Deposition Designations. The Clerk of the Court shall file the following deposition transcripts into the record under seal: Lodged Appendices 1, 3, 7, 9, 12, 13, 15, 16, 19, 20, 22, 25, and 27. It is FURTHER ORDERED that the remaining deposition transcripts shall be filed into the public record, as follows: Appendices 2, 4-6, 8, 10-11, 14, 17-18, 21, 23-24, and 26. Signed by Senior Judge David C Bury on 1/7/20. (KAH) (Entered: 01/08/2020)

01/08/2020

443 Sealed Document: Joint Appendix of Highlighted Transcripts to the Parties' Designation of Deposition Testimony by Norlan Flores, Unknown Parties. (Attachments: # 1 Appendix 1, # 2 Appendix 3, # 3 Appendix 7, # 4 Appendix 9, # 5 Appendix 12, # 6 Appendix 13, # 7 Appendix 15, # 8 Appendix 16, # 9 Appendix 19, # 10 Appendix 20, # 11 Appendix 22, # 12 Appendix 25, # 13 Appendix 27) (KAH) (Entered: 01/08/2020)

01/08/2020

444 Miscellaneous Document: Joint Appendix of Highlighted Transcripts to the Parties' Designation of Deposition Testimony by Norlan Flores, Unknown Parties. (Attachments: # 1 Appendix 4, # 2 Appendix 5, # 3 Appendix 6, # 4 Appendix 8, # 5 Appendix 10, # 6 Appendix 11, # 7 Appendix 14, # 8 Appendix 17, # 9 Appendix 18, # 10 Appendix 21, # 11 Appendix 23, # 12 Appendix 24, # 13 Appendix 26)(KAH) (Entered: 01/08/2020)

01/09/2020

446 STIPULATION to Seal Portion of Plaintiffs' Proposed Findings of Fact and Conclusions of Law by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Mayer, Colette) (Entered: 01/09/2020)

01/09/2020

447 TRIAL BRIEF (Public Re-filing of 439 ) by Norlan Flores, Unknown Parties. (Attachments: # 1 Plaintiffs' Proposed Findings of Fact and Conclusions of Law - REDACTED VERSION)(Londen, Jack) (Entered: 01/09/2020)

01/10/2020

448 MOTION to Substitute Party: substituting Kevin McAleenan, Kirstjen Nielsen, R. Gil Kerlikowske, Michael J. Fisher, Jeffrey Self, Manuel Padilla, and Rodolfo Karisch by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self. (Attachments: # 1 Text of Proposed Order)(Masetta-Alvarez, Katelyn) (Entered: 01/10/2020)

01/13/2020

451 MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Bench Trial (Day 1) begun on 1/13/2020. Oral Motion to invoke the rule of exclusion is Granted. Evidence entered as listed. See attached PDF for complete information.

APPEARANCES: Jack Londen et al for Plaintiffs. Sarah Fabian et al for Defendants Bench Trial continues on 1/14/2020 at 09:15 AM before Senior Judge David C Bury. (Court Reporter Erica McQuillen/Cheryl Cummings.) See attached PDF for complete details. Hearing held 9:14 am to 5:05 pm.(SMJ) Modified on 1/16/2020 to include second court reporter (SMJ). (Entered: 01/16/2020)

01/14/2020 449 ORDER granting 448 Motion to Substitute Party Names. Pursuant to Rule 25(d), there have been the following substitutions: Chad Wolf,

(Acting) United States Department of Homeland Security; Mark Morgan (Acting) Commissioner, United States Custom and Border Protection; Carla Provost, Chief of the United States Border Patrol and Roy Villareal, Commander, Arizona Joint Field Command and Chief Patrol Agent-Tucson Sector. Signed by Senior Judge David C Bury on 1/10/2020. (BAR) (Entered: 01/14/2020)

01/14/2020

452 *Amended by Doc. 456 - MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Bench Trial (Day 2) held on 1/14/2020. Evidence entered.

APPEARANCES: Jack Londen et al for Plaintiffs. Sarah Fabian et al for Defendants Bench Trial continues on 1/15/2020 at 09:00 AM before Senior Judge David C Bury. (Court Reporter Erica McQuillen/Cheryl Cummings.) See attached PDF for complete details. Hearing held 9:14 am to 5:22 pm.(SMJ) *Modified on 1/17/2020 (SMJ). (Entered: 01/16/2020)

01/14/2020

456 AMENDED MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Amending Doc. 452 MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Bench Trial (Day 2) held on 1/14/2020. Evidence entered.

APPEARANCES: Jack Londen et al for Plaintiffs. Sarah Fabian et al for Defendants Bench Trial continues on 1/15/2020 at 09:00 AM before Senior Judge David C Bury. (Court Reporter Erica McQuillen/Cheryl Cummings.) See attached PDF for complete details. Hearing held 9:14 am to 5:22 pm.(SMJ)

Reason for Amendment: to correct exhibits admitted. (Entered: 01/17/2020)

01/15/2020 450 NOTICE of Appearance by Christine Keeyeh Wee on behalf of Norlan Flores, Unknown Parties. (Wee, Christine) (Entered: 01/15/2020)
01/15/2020 453 MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Bench Trial (Day 3) held on 1/15/2020. Evidence entered.

APPEARANCES: Jack Londen et al for Plaintiffs. Sarah Fabian et al for Defendants. Bench Trial continues to 1/16/2020 at 09:00 AM before Senior Judge David C Bury. (Court Reporter Erica McQuillen/Cheryl Cummings.) See attached PDF for complete details. Hearing held 8:59 am to 2:32 pm.(SMJ) (Entered: 01/16/2020)

01/16/2020 454 ORDER pursuant to 446 Stipulation of the parties related to Protected Material under the stipulated Protective Order, the lodged Plaintiff's

Trial Brief and Plaintiffs Proposed Findings of Fact SHALL BE FILED UNDER SEAL. Signed by Senior Judge David C Bury on 1/15/20. (KAH) (Entered: 01/16/2020)

01/16/2020 455 Sealed Document: Plaintiffs' Trial Brief by Norlan Flores, Unknown Parties. (Attachments: # 1 Plaintiffs' Proposed Findings of Fact and Conclusions of Law) (KAH) (Entered: 01/16/2020)

01/16/2020 457 Amended by Doc 481 - MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Bench Trial (Day 4) held on 1/16/2020.

APPEARANCES: Jack Londen et al for Plaintiffs. Sarah Fabian et al for Defendants. Bench Trial set for 1/17/2020 at 09:00 AM before Senior Judge David C Bury. (Court Reporter Erica McQuillen (AM)/Cheryl Cummings (PM)) See attached PDF for complete details. Hearing held 9:00 am to 4:49 am.(SMJ) Modified on 2/18/2020 (SMJ). (Entered: 01/17/2020)

01/16/2020

481 AMENDED MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Amending Doc. 457 MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Bench Trial (Day 4) held on 1/16/2020.

APPEARANCES: Jack Londen et al for Plaintiffs. Sarah Fabian et al for Defendants. Bench Trial set for 1/17/2020 at 09:00 AM before Senior Judge David C Bury. (Court Reporter Erica McQuillen (AM)/Cheryl Cummings (PM)) See attached PDF for complete details. Hearing held 9:00 am to 4:49 am.(SMJ)

Reason for Amendment: to designate deposition excerpts as exhibit. (Entered: 02/18/2020)
01/17/2020 458 MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Bench Trial (Day 5) held on 1/17/2020.

APPEARANCES: Jack Londen et al for Plaintiffs. Sarah Fabian et al for Defendants. Bench Trial continues to 1/21/2020 at 09:15 AM before Senior Judge David C Bury. (Court Reporter Erica McQuillen (AM)/Cheryl Cummings (PM)) See attached PDF for complete details. Hearing held 9:05 am to 2:15 pm.(SMJ) (Entered: 01/17/2020)

01/21/2020 459 MINUTE ENTRY for proceedings held before Senior Judge David C Bury: Bench Trial (Day 6) held on 1/21/2020.

APPEARANCES: Jack Londen et al for Plaintiffs. Sarah Fabian et al for Defendants. Bench Trial set for 1/22/2020 at 09:15 AM before

Senior Judge David C Bury. (Court Reporter Erica McQuillen (AM)/Cheryl Cummings (PM)) See attached PDF for complete details. Hearing held 9:22 am to 2:07 pm.(SMJ) (Entered: 01/21/2020)

01/22/2020 460 MINUTE ENTRY for proceedings held before Senior Judge David C. Bury: Bench Trial (Day 7) held on 1/22/2020. Bench Trial completed. The Court takes the matter Under Advisement.

(Court Reporter Erica McQuillen.) See attached PDF for complete details. Hearing held 9:17 AM to 11:51 AM.(SSG) (Entered: 01/22/2020)
01/22/2020 461 Defense Witness List as to Wolf, et al. (SSG) (Entered: 01/22/2020)
01/22/2020 462 Joint Exhibit List as to Plaintiff, Unknown Parties. (SSG) (Entered: 01/22/2020)
01/22/2020 463 Defense Exhibit List as to Wolf, et al. (SSG) (Entered: 01/22/2020)

01/22/2020 464 Plaintiff's Redacted Witness List as to Unknown Parties. (SSG) (Entered: 01/24/2020)

01/22/2020

465 Sealed Document: Plaintiff's Unredacted Witness List by Unknown Parties. (MFR)(cc: Plaintiff's Counsel, Defense Counsel - Copies Distributed) (Entered: 01/24/2020)

01/31/2020

466 TRANSCRIPT of PRETRIAL CONFERENCE held on 01/06/2020, before Judge David C. Bury. Court Reporter Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

467 TRANSCRIPT of BENCH TRIAL DAY ONE (PART ONE OF TWO) held on 01/13/2020, before Judge David C. Bury. Court Reporter Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

468 TRANSCRIPT of JURY TRIAL DAY ONE SESSION 2 of 2 held on 01/13/2020, before Judge David C. Bury. Court Reporter Cheryl L. Cummings. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

469 TRANSCRIPT of BENCH TRIAL DAY TWO (PART ONE OF TWO) held on 01/14/2020, before Judge David C. Bury. Court Reporter Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

470 TRANSCRIPT of BENCH TRIAL DAY TWO SESSION 2 of 2 held on 01/14/2020, before Judge David C. Bury. Court Reporter Cheryl L. Cummings. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

471 TRANSCRIPT of BENCH TRIAL DAY THREE (PART ONE OF TWO) held on 01/15/2020, before Judge David C. Bury. Court Reporter Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020 472 TRANSCRIPT of BENCH TRIAL DAY THREE held on 01/15/2020, before Judge David C. Bury. Court Reporter Cheryl L. Cummings. The

ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

473 TRANSCRIPT of BENCH TRIAL DAY FOUR (PART ONE OF TWO) held on 01/16/2020, before Judge David C. Bury. Court Reporter Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

474 TRANSCRIPT of BENCH TRIAL DAY FOUR SESSION 2 of 2 held on 01/16/2020, before Judge David C. Bury. Court Reporter Cheryl L. Cummings. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

475 TRANSCRIPT of BENCH TRIAL DAY FIVE (PART ONE OF TWO) held on 01/17/2020, before Judge David C. Bury. Court Reporter Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

476 TRANSCRIPT of BENCH TRIAL DAY FIVE held on 01/17/2020, before Judge David C. Bury. Court Reporter Cheryl L. Cummings. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may

be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

477 TRANSCRIPT of BENCH TRIAL DAY SIX (PART ONE OF TWO) held on 01/21/2020, before Judge David C. Bury. Court Reporter Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

478 TRANSCRIPT of BENCH TRIAL DAY SIX SESSION 2 OF 2 held on 01/21/2020, before Judge David C. Bury. Court Reporter Cheryl L. Cummings. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

01/31/2020

479 TRANSCRIPT of BENCH TRIAL DAY SEVEN held on 01/22/2020, before Judge David C. Bury. Court Reporter Erica R. McQuillen. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/21/2020. Redacted Transcript Deadline set for 3/2/2020. Release of Transcript Restriction set for 4/30/2020. (NEC) (Entered: 01/31/2020)

02/13/2020

480 *NOTICE of Attorney Withdrawal of Plaintiffs' Counsel Elizabeth Balassone filed by Elizabeth Gilmore Balassone. (Balassone, Elizabeth) *Modified to terminate attorney Balassone on 2/14/2020 (MFR). (Entered: 02/13/2020)

02/19/2020

482 FINDINGS OF FACT AND CONCLUSIONS OF LAW: IT IS ORDERED that the Court finds in favor of Plaintiffs and against Defendants and GRANTS Plaintiff's request for a permanent injunction. The Clerk of the Court shall enter Judgment for Plaintiffs. IT IS FURTHER ORDERED that CBP shall be enjoined from holding detainees, who are "processing complete," as defined herein, no longer than 48 hours, unless CBP provides conditions of confinement that meet basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessments performed by a medical professional. IT IS FURTHER ORDERED that within 7 days of the filing date of this Order, the Plaintiffs shall file a proposed Order for Permanent Injunction. The Defendants shall have 7 days, thereafter, to file an Objection. Signed by Senior Judge David C Bury on 2/19/2020. (ARC) (Entered: 02/19/2020)

02/19/2020

483 CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Findings of Fact and Conclusions of Law filed February 19, 2020, judgment is entered in favor of plaintiffs and against defendants. (ARC) (Entered: 02/19/2020)

02/26/2020

484 *NOTICE -- [Proposed] Order for Preliminary Injunction (filed pursuant to 482 ) by Plaintiffs Norlan Flores, Unknown Parties. (Londen, Jack) *Modified to correct event type on 3/9/2020 (ARC). (Entered: 02/26/2020)

03/04/2020

485 OBJECTION re: 484 Additional Attachments to Main Document by Defendants Mark Morgan, Carla L Provost, Roy Villareal, Chad Wolf. (Fabian, Sarah) (Entered: 03/04/2020)

03/16/2020

486 MOTION for Leave to File a Response to Defendants' Comments and Objections to Plaintiffs' Proposed Order for Permanent Injunction by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Londen, Jack) (Entered: 03/16/2020)

03/16/2020

487 FILED at Doc. 489 - LODGED Proposed Plaintiffs' Response to Defendants' Comments & Objections to Plaintiffs' Proposed Order for Permanent Injunction re: 486 MOTION for Leave to File a Response to Defendants' Comments and Objections to Plaintiffs' Proposed Order for Permanent Injunction . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Norlan Flores, Unknown Parties. (Attachments: # 1 Declaration of Pieter S. de Ganon, # 2 Index of Exhibits to the de Ganon Decl. and Exs. AC)(Londen, Jack) Modified on 3/20/2020 (ARC). (Entered: 03/16/2020)

03/20/2020 488 ORDER granting 486 Motion for Leave to File Response. Signed by Senior Judge David C Bury on 3/19/2020. (ARC) (Entered: 03/20/2020)

03/20/2020

489 RESPONSE re: 485 Defendants' Comments & Objections by Plaintiffs Norlan Flores, Unknown Parties. (Attachments: # 1 Declaration of Pieter S. de Ganon, # 2 Index of Exhibits to the de Ganon Decl. and Exs. A-C)(ARC) (Entered: 03/20/2020)

03/26/2020

490 MOTION for Leave to File Surreply to Plaintiffs' Response by Mark Morgan, Carla L Provost, Roy Villareal, Chad Wolf. (Attachments: # 1 Text of Proposed Order)(Masetta-Alvarez, Katelyn) (Entered: 03/26/2020)

03/26/2020

491 FILED at Doc. 493 - LODGED Proposed Surreply to Plaintiffs' Response. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Mark Morgan, Carla L Provost, Roy Villareal, Chad Wolf. (Masetta-Alvarez, Katelyn) Modified on 3/30/2020 (ARC). (Entered: 03/26/2020)

03/30/2020

492 ORDER granting 490 Motion for Leave to File Surreply. Signed by Senior Judge David C Bury on 3/30/2020. (ARC) (Entered: 03/30/2020)

03/30/2020 493 SURREPLY TO PLAINTIFFS' RESPONSE re: 485 Objection by Defendants Mark Morgan, Carla L Provost, Roy Villareal, Chad Wolf. (Masetta-Alvarez, Katelyn) (ARC) (Entered: 03/30/2020)

04/17/2020

494 ORDER FOR PERMANENT INJUNCTION. Signed by Senior Judge David C Bury on 4/17/2020. (See Order for complete details) (ARC) (Entered: 04/17/2020)

04/20/2020 495 NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 482 Findings of Fact & Conclusions of Law by Mark Morgan, Roy Villareal, Chad Wolf. (Parascandola, Christina) (Entered: 04/20/2020)

04/21/2020 496 USCA Case Number re: 495 Notice of Appeal. Case number 20-15741, 9th CCA. (KAH) (Entered: 04/21/2020)

04/21/2020 497 TIME SCHEDULE ORDER of USCA re: 495 Notice of Appeal filed by Mark Morgan, Roy Villareal, Chad Wolf. (KAH) (Entered: 04/21/2020)

05/01/2020

498 NOTICE OF CROSS APPEAL to 9th Circuit Court of Appeals re: 483 Clerks Judgment, 494 Permanent Injunction, 482 Findings of Fact & Conclusions of Law by Norlan Flores, Unknown Parties. Filing fee

$ 505.00, receipt number 0970-18241209. (Londen, Jack) (Entered: 05/01/2020)

05/04/2020 499 USCA Case Number re: 498 Notice of Cross Appeal. Case number 2015850, 9th CCA. (KAH) (Entered: 05/05/2020)

05/04/2020 500 TIME SCHEDULE ORDER of USCA re: 498 Notice of Cross Appeal, 495 Notice of Appeal. (KAH) (Entered: 05/05/2020)

05/15/2020

501 *STATUS REPORT Pursuant to the Court's Permanent Injunction Order by Mark Morgan, Roy Villareal, Chad Wolf, Carla L Provost. (Attachments: # 1 Exhibit Exhibit A - Declaration, # 2 Exhibit Exhibit B - Printout of CBP webpage)(Masetta-Alvarez, Katelyn) *Modified to reflect correct filers on 5/18/2020 (MFR). (Entered: 05/15/2020)

06/15/2020

502 *NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 494 Permanent Injunction by Chad Wolf. (Parascandola, Christina) *Modified to reflect correct filer on 6/16/2020 (MFR). (Entered: 06/15/2020)

06/16/2020

503 *STATUS REPORT of Compliance with Permanent Injunction by Mark Morgan, Roy Villareal, Carla L Provost, Chad Wolf. (Attachments: # 1 Exhibit Ex. A - Declaration)(Masetta-Alvarez, Katelyn) *Modified to reflect correct filers on 6/17/2020 (MFR). (Entered: 06/16/2020)

06/17/2020

504 NOTICE OF CROSS APPEAL to 9th Circuit Court of Appeals re: 494 Permanent Injunction by Norlan Flores, Unknown Parties. Filing fee $ 505.00, receipt number 0970-18392650. (Londen, Jack) (Entered: 06/17/2020)

07/15/2020

505 *STATUS REPORT Regarding Compliance with Permanent Injunction by Mark Morgan, Roy Villareal, Chad Wolf, Carla L Provost. (Attachments: # 1 Exhibit A)(Masetta-Alvarez, Katelyn) *Modified to reflect correct filers on 7/16/2020 (MFR). (Entered: 07/15/2020)

08/18/2020 506 NOTICE of Attorney Withdrawal of Linton Joaquin filed by Linton Joaquin. (Joaquin, Linton) (Entered: 08/18/2020)

09/11/2020

507 REPORT of Apparent Noncompliance With Permanent Injunction by Plaintiff Unknown Parties. (Attachments: # 1 Declaration of John S. Douglass, # 2 Exhibits 1-47 (Public Versions))(Londen, Jack) (Entered: 09/11/2020)

09/11/2020 508 Joint MOTION to Seal Document --Stipulated Motion to Seal E3DM Exhibits in Support of Plaintiffs' Report Regarding Apparent

Noncompliance With Permanent Injunction by Norlan Flores, Unknown Parties. (Attachments: # 1 Text of Proposed Order)(Londen, Jack) (Entered: 09/11/2020)

09/11/2020

509 FILED at (Doc. 514 ) SEALED LODGED Proposed Exhibits 5-47 in Support of Plaintiffs' Report Regarding Apparent Noncompliance With Permanent Injunction re: 508 Joint MOTION to Seal Document -Stipulated Motion to Seal E3DM Exhibits in Support of Plaintiffs' Report Regarding Apparent Noncompliance With Permanent Injunction. Document to be filed by Clerk if Motion or Stipulation to Seal is granted. Filed by Norlan Flores, Unknown Parties. (Londen, Jack) Modified on 9/25/2020 (KAH). (Entered: 09/11/2020)

09/13/2020

510 *MOTION to Withdraw as Attorney Carlton Frederick Sheffield filed by Carlton Frederick Sheffield. (Sheffield, Carlton) *Modified to correct event type on 9/16/2020 (ARC). (Entered: 09/13/2020)

09/15/2020

511 MOTION to Withdraw as Attorney Colin A. Kisor by Michael J Fisher, Rodolfo Karisch, R Gil Kerlikowske, Kevin K McAleenan, Mark Morgan, Kirstjen M Nielsen, Manuel Padilla, Jr, Carla L Provost, Jeffrey Self, Roy Villareal, Chad Wolf. (Kisor, Colin) (Entered: 09/15/2020)

09/23/2020

512 RESPONSE re: 507 Report - Other by Defendants Mark Morgan, Roy Villareal, Chad Wolf. (Attachments: # 1 Exhibit A - Declaration of ACPA Leon, # 2 Exhibit B - Declaration of Operations Officer Anthony Weitz)(Masetta-Alvarez, Katelyn) (Entered: 09/23/2020)

09/25/2020

513 ORDER granting 508 Motion to Seal E3DM Exhibits in Support of Plaintiffs' Report Regarding Apparent Noncompliance With Permanent Injunction. Plaintiffs shall file Exhibits 5-47 lodged by Plaintiffs under seal into the record, redacted for personally identifiable information: names, A-numbers, and day and month of birth. Signed by Senior Judge David C Bury on 9/17/20. (KAH) (Entered: 09/25/2020)

09/25/2020 514 Sealed Document: Exhibits 5-47 in Support of Plaintiffs' Report Regarding Apparent Noncompliance With Permanent Injunction by Norlan Flores, Unknown Parties. (KAH) (Entered: 09/25/2020)

09/29/2020

515 REDACTION to 507 Report - Other, 513 Order on Motion to Seal Document Redacted Exhibits 5-47 in Support of Plaintiffs' Report Regarding Apparent Noncompliance with Permanent Injunction, filed pursuant to Court's Order, Dkt. No. 513 by Norlan Flores, Unknown Parties. (Londen, Jack) (Entered: 09/29/2020)

10/27/2020 516 ORDER granting 510 Defendants Motion for an Order relieving Carlton Frederick Sheffield as counsel for the Defendants. Signed by

Senior Judge David C Bury on 10/27/2020. (ARC) (Entered: 10/27/2020)

10/27/2020

517 ORDER granting 511 Defendants' Motion for an Order withdrawing Colin A. Kisor as counsel for the Defendants. Signed by Senior Judge David C Bury on 10/27/2020. (ARC) (Entered: 10/27/2020)

11/18/2020

518 ORDERED that the parties shall not file in this closed case, except and unless necessary to secure compliance with the Permanent Injunction, the Judgment, or any Order of the Court. Signed by Senior Judge David C Bury on 11/18/2020. (ARC) (Entered: 11/18/2020)

11/18/2020

519 MANDATE of USCA re: 495 Notice of Appeal filed by Mark Morgan, Roy Villareal, Chad Wolf. The stipulated motion to voluntarily dismiss cross-appeal No. 20-15741 only is granted. No 20-15741 is dismissed with prejudice. (Attachments: # 1 NDA)(KAH) (Entered: 11/20/2020)

01/27/2021

520 MANDATE of USCA re: 498 Notice of Cross Appeal filed by Unknown Parties, Norlan Flores. Pursuant to the stipulation of the parties this appealis voluntarily dismissed. (Attachments: # 1 NDA)(KAH) (Entered: 01/27/2021)

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