U.S. District Court Western District of Tennessee (Memphis) CIVIL DOCKET FOR CASE #: 2:20-cv-02359-SHL-atc

Busby, et al v. Bonner, et al Assigned to: Judge Sheryl H. Lipman Referred to: Magistrate Judge Annie T. Christoff Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 05/20/2020 Jury Demand: None Nature of Suit: 555 Prisoner Petitions (Prison Condition) Jurisdiction: Federal Question

Plaintiff Favian Busby

represented by Jeffery P Robinson ACLU 125 Broad Street Ste 17th Floor New York, NY 10004 917-361-9329 Email: jrobinson@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua B. Spickler JUST CITY 902 South Cooper Memphis, TN 38104 901-206-2226 Email: josh@justcity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amreeta Mathai AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE New York 125 Broad St. New York New York, NY 10004 212-549-2500 Email: amathai@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Andrea Woods

ACLU CRIMINAL LAW REFORM PORJECT ACLU CRIMINAL LAW REFORM PROJECT 125 Broad Street 18th Floor New York, NY 10004 212-549-2528 Email: awoods@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Edward Robinson , Jr PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 212-373-3000 Email: erobinson@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Silberstein-Loeb PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Email: jsilbersteinloeb@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Spickler JUST CITY 240 Madison Avenue Suite 104 Memphis, TN 38103 901-216-2024 Email: josh@justcity.org ATTORNEY TO BE NOTICED
Maria Morris AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE National Prison Project

915 15th St. NW Ste 7th Floor Washington, DC 20005 202-548-6607 Email: mmorris@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Meredith Borner PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 212-373-3000 Email: mborner@paulweiss.com ATTORNEY TO BE NOTICED
Stella Marie Yarbrough AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE P.O. Box 120160 Nashville, TN 37212 602-908-1987 Email: syarbrough@aclu-tn.org ATTORNEY TO BE NOTICED
Thomas Hauser Castelli AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TENNESSEE 210 25th Avenue N. Suite 1000 P.O. Box 120160 Nashville, TN 37212 615-320-7142 X303 Email: tcastelli@aclu-tn.org ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE 39 Drumm Street San Francisco San Francisco, CA 94111 415-343-0769 Email: zbrennan-krohn@aclu.org

Plaintiff Michael Edgington

PRO HAC VICE ATTORNEY TO BE NOTICED
Brice Moffatt Timmons DONATI LAW, PLLC 1545 Union Ave. Memphis, TN 38104 901-278-1004 Fax: 901-278-3111 Email: brice@donatilaw.com ATTORNEY TO BE NOTICED
represented by Jeffery P Robinson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua B. Spickler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amreeta Mathai (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andrea Woods (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Edward Robinson , Jr (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Silberstein-Loeb (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Spickler (See above for address)

V. Defendant Floyd Bonner, Jr.

ATTORNEY TO BE NOTICED
Maria Morris (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Meredith Borner (See above for address) ATTORNEY TO BE NOTICED
Stella Marie Yarbrough (See above for address) ATTORNEY TO BE NOTICED
Thomas Hauser Castelli (See above for address) ATTORNEY TO BE NOTICED
Zoe Brennan-Krohn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Brice Moffatt Timmons (See above for address) ATTORNEY TO BE NOTICED
represented by 2241 AUSA - Memphis U.S. ATTORNEY'S OFFICE Memphis 167 N. Main St. Suite 800 Memphis, TN 38103 Email: usatnw.2241@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Austin Stokes Pentecost, Glenn, Mauldin & York, PLLC 162 Murray Guard Drive

Suite B Jackson, TN 38305 731-668-5995 Fax: 731-668-7163 Email: astokes@pgmfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James I. Pentecost PENTECOST, GLENN & MAULDIN, PLLC 162 Murray Guard Drive Suite B Jackson, TN 38305 731-668-5995 Fax: 731-668-7163 Email: jpentecost@pgmfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Daniel Tilly PENTECOST, GLENN & MAULDIN, PLLC 162 Murray Guard Drive Suite B Jackson, TN 38305 731-668-5995 Fax: 731-668-7163 Email: ntilly@pgmfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bridgett L. Stigger Shelby County Attorney's Office 160 N. Main St. Suite 950 Memphis, TN 38103 901-222-2100 Fax: 901-222-2105 Email: bridgett.stigger@shelbycountytn.gov ATTORNEY TO BE NOTICED
Marlinee Iverson SHELBY COUNTY ATTORNEY'S OFFICE

Defendant Shelby County Sheriff's Office
Amicus Amici Curiae of Prison Rights Organizations

160 N. Main Ste 950 Memphis, TN 38103 901-222-2130 Fax: 901-222-2105 Email: Marlinee.Iverson@shelbycountytn.gov ATTORNEY TO BE NOTICED
represented by 2241 AUSA - Memphis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Austin Stokes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James I. Pentecost (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan Daniel Tilly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bridgett L. Stigger (See above for address) ATTORNEY TO BE NOTICED
Marlinee Iverson (See above for address) ATTORNEY TO BE NOTICED
represented by Janet Goode 917 S. Cooper Street Memphis, TN 38104 901-308-7511 Fax: 901-641-3972

Amicus State of Tennessee

Email: janet@janetgoodelaw.com ATTORNEY TO BE NOTICED
represented by John H. Bledsoe TENNESSEE ATTORNEY GENERAL'S OFFICE P.O. Box 20207 Nashville, TN 37202 615-741-4351 Email: john.bledsoe@ag.tn.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/20/2020
05/20/2020
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#

Docket Text

First PETITION for Writ of Habeas Corpus (Filing fee $ 5 receipt

1

number ATNWDC-3352115), filed by Favian Busby, Michael

Edginton. (Attachments: # 1 Civil Cover Sheet Civil cover Sheet, # 2 Summons Summons Issued to Shelby County Sheriff's

Office, # 3 Summons Summons Issued to Floyd Bonner, Jr.)(Timmons, Brice) (Entered: 05/20/2020)

2 First MOTION for Temporary Restraining Order Proposed Order Submitted by Favian Busby, Michael Edginton. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Timmons, Brice) (Entered: 05/20/2020)

MOTION to Certify Class by All Plaintiffs. (Attachments:

3

# 1 Affidavit Declaration of Thomas Castelli)(Timmons, Brice)

(Entered: 05/20/2020)

4 MOTION to Expedite TRO & Preliminary Injunction by All Plaintiffs. (Timmons, Brice) (Entered: 05/20/2020)
5 NOTICE by Favian Busby, Michael Edginton re 2 First MOTION for Temporary Restraining Order Proposed Order Submitted (Attachments: # 1 Affidavit Second Declaration of Josh Spickler in Support of Petitioners-Plaintiffs Motion for A Temporary Restraining Order)(Timmons, Brice) (Entered: 05/20/2020)

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05/21/2020

6 Judge Sheryl H. Lipman and Judge Unassigned 7 added. (jae) (Entered: 05/21/2020)
7 NOTICE OF CASE TRACKING ASSIGNMENT PURSUANT TO LOCAL RULE 16.2: Pursuant to Local Rule 16.2, this case has been assigned to the Standard track. http://www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf (jae) (Entered: 05/21/2020)
8 MOTION for Leave to Appear Pro Hac Vice (Filing fee $ 150 receipt number ATNWDC-3352418) by Favian Busby, Michael Edgington. (Attachments: # 1 Certificate of Good Standing from US District Court of Colorado, # 2 Certificate of Good StandingNY State Judicial First Department)(Mathai, Amreeta) (Entered: 05/21/2020)
9 Summons Issued as to Shelby County Sheriff's Office. The filer has been notified electronically that the summons has been issued, and the new docket entry reflects this. Upon notification of the new docket entry, the filer is to print the issued summons in order to effect service. (jae) (Entered: 05/21/2020)
10 Summons Issued as to Floyd Bonner, Jr.. The filer has been notified electronically that the summons has been issued, and the new docket entry reflects this. Upon notification of the new docket entry, the filer is to print the issued summons in order to effect service. (jae) (Entered: 05/21/2020)
11 ORDER granting 8 Motion for Leave to Appear Pro Hac Vice. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**] Signed by Judge Sheryl H. Lipman on 5/21/20. (Lipman, Sheryl) (Entered: 05/21/2020)
12 ORDER GRANTING PLAINTIFFS' MOTION FOR EXPEDITED CONSIDERATION 4 . Signed by Judge Sheryl H. Lipman on 05/21/2020. (shl) (Entered: 05/21/2020)
13 MOTION for Leave to Appear Pro Hac Vice proposed order submitted (Filing fee $ 150 receipt number ATNWDC-3352649) by Favian Busby, Michael Edgington. (Attachments: # 1 Certificate of Good Standing - EDNY, # 2 Certificate of Good Standing - New York State First Judicial Department)(SilbersteinLoeb, Jonathan) (Entered: 05/21/2020)
14 ORDER granting 13 Motion for Leave to Appear Pro Hac Vice. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**] Signed

05/21/2020 05/21/2020
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by Judge Sheryl H. Lipman on 5/21/20. (Lipman, Sheryl) (Entered: 05/21/2020)
15 AMENDED ORDER GRANTING PLAINTIFFS' MOTION FOR EXPEDITED CONSIDERATION. Signed by Judge Sheryl H. Lipman on 05/21/2020. (shl) (Entered: 05/21/2020)
16 NOTICE OF HEARING ON MOTION: (TEXT ONLY NO IMAGE ASSOCIATED WITH THIS ENTRY): The parties are hereby notified that a Hearing on the First Motion for Temporary Restraining Order 2 has been set for Wednesday, May 27, 2020 at 1:30 PM via Skype Video before Judge Sheryl H. Lipman. If there are any exhibits to be submitted at this hearing, please file them on ECF by close of business on Tuesday, May 26, 2020. The Court will send, via email, to each attorney, an invitation for the conference. All parties shall be prepared to present their witnesses at the hearing via Skype Video by forwarding the invite to the witness. Parties shall consult the Skype for Business webpage for instructions on downloading the proper extensions for their computer. (smm) (Entered: 05/21/2020)
17 MOTION for Leave to Appear Pro Hac Vice by Andrea Woods (Filing fee $ 150 receipt number ATNWDC-3353163) by Favian Busby, Michael Edgington. (Attachments: # 1 Certificate of Good Standing- New York State Second Judicial Department, # 2 Certificate of Good Standing- U.S. District Court of Western Washington)(Woods, Andrea) (Entered: 05/21/2020)
18 ORDER granting 17 Motion for Leave to Appear Pro Hac Vice. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**] Signed by Judge Sheryl H. Lipman on 5/22/20. (Lipman, Sheryl) (Entered: 05/22/2020)
19 NOTICE by Favian Busby, Michael Edgington re 2 First MOTION for Temporary Restraining Order Proposed Order Submitted Notice of Supplemental Authority (Attachments: # 1 Supplement Cameron v. Bouchard)(Timmons, Brice) (Entered: 05/24/2020)
20 NOTICE of Appearance by James I. Pentecost on behalf of Floyd Bonner, Jr., Shelby County Sheriff's Office (Pentecost, James) (Entered: 05/26/2020)
21 NOTICE of Appearance by Nathan Daniel Tilly on behalf of Floyd Bonner, Jr., Shelby County Sheriff's Office (Tilly, Nathan) (Entered: 05/26/2020)

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22 NOTICE of Appearance by J. Austin Stokes on behalf of Floyd Bonner, Jr., Shelby County Sheriff's Office (Stokes, J.) (Entered: 05/26/2020)
23 NOTICE of Appearance by Marlinee Iverson on behalf of All Defendants (Iverson, Marlinee) (Entered: 05/26/2020)
24 NOTICE of Appearance by Bridgett L. Stigger on behalf of Floyd Bonner, Jr., Shelby County Sheriff's Office (Stigger, Bridgett) (Entered: 05/26/2020)
25 MOTION to Dismiss by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Attachments: # 1 Memorandum in Support)(Tilly, Nathan) (Entered: 05/26/2020)
26 RESPONSE in Opposition re 3 MOTION to Certify Class filed by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Stokes, J.) (Entered: 05/26/2020)
27 RESPONSE in Opposition re 2 First MOTION for Temporary Restraining Order Proposed Order Submitted filed by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Attachments: # 1 Declaration of Kirk Fields, # 2 Declaration of Amy Weirich, # 3 Declaration of Judge Campbell, # 4 Declaration of Judge Craft, # 5 Declaration of Dr. Bruce Randolph, # 6 Declaration of Dr. Donna Randolph)(Tilly, Nathan) (Entered: 05/26/2020)
28 MOTION for Leave to Appear Pro Hac Vice proposed order submitted (Filing fee $ 150 receipt number ATNWDC-3354505) by All Plaintiffs. (Attachments: # 1 Certificate of Good Standing Supreme Court of California, # 2 Certificate of Good Standing Northern District of California)(Brennan-Krohn, Zoe) (Entered: 05/26/2020)
29 ORDER granting 28 Motion for Leave to Appear Pro Hac Vice. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**] Signed by Judge Sheryl H. Lipman on 5/26/20. (Lipman, Sheryl) (Entered: 05/26/2020)
30 ATTACHMENT Plaintiffs' Exhibit List to 2 First MOTION for Temporary Restraining Order Proposed Order Submitted by Favian Busby, Michael Edgington.. (Woods, Andrea) (Entered: 05/26/2020)
31 NOTICE by Floyd Bonner, Jr., Shelby County Sheriff's Office Respondents' Exhibit List (Stokes, J.) (Entered: 05/26/2020)

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32 NOTICE of Appearance by Stella Marie Yarbrough on behalf of All Plaintiffs (Yarbrough, Stella) (Entered: 05/27/2020)
33 NOTICE of Appearance by Thomas Hauser Castelli on behalf of All Plaintiffs (Castelli, Thomas) (Entered: 05/27/2020)
34 Minute Entry for proceedings held before Judge Sheryl H. Lipman: A hearing on the First Motion for Temporary Restraining Order 2 was held via Skype Video on 5/27/2020. Jonathan Silberstein-Loeb, Amreeta Mathai, Andrea Woods, Brice M. Timmons, Zoe Brennan-Krohn, Joshua Spickler and Stella M. Yarbrough appeared for the plaintiff(s). J. Austin Stokes, James I. Pentecost, Nathan D. Tilly, Bridgett L. Stigger and Marlinee Iverson appeared for the defendant(s). Plaintiff's proof/sworn witnesses: Dr. Joe Goldenson, M.D. Plaintiff to respond to Defendant's Motion to Dismiss 25 by midnight on Friday, May 29, 2020. Defendant to file their reply to the response by noon on Thursday, June 4, 2020. The court will enter a written order upon ruling. (Court Reporter: Candace Covey) (smm) (Entered: 05/27/2020)
35 RESPONSE in Opposition re 25 MOTION to Dismiss filed by All Plaintiffs. (Attachments: # 1 Affidavit Declaration of Jonathan Loeb-Silverstein, # 2 Exhibit March 13 COVID-19 Order, # 3 Exhibit March 25 COVID-19 Order, # 4 Exhibit April 24 COVID-19 Order, # 5 Exhibit March 27 Letter from Hon. John W. Campbell)(Timmons, Brice) (Entered: 05/29/2020)
36 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/27/20 before Judge Sheryl H. Lipman. Court Reporter Candace Covey, Telephone number 901-495-1216.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to

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06/12/2020 06/12/2020 06/12/2020

Request Redaction due 6/8/2020. Redaction Request due 6/22/2020. Release of Transcript Restriction set for 8/31/2020. (Covey, Candace) (Entered: 06/01/2020)

37 REPLY to Response to Motion re 35 Response in Opposition to Motion, to Dismiss filed by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Tilly, Nathan) (Entered: 06/04/2020)

ORDER DENYING DEFENDANTS' MOTION TO DISMISS

38

AND GRANTING IN PART AND DENYING IN PART

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 3

25 . Signed by Judge Sheryl H. Lipman on 06/10/2020. (shl) (Entered: 06/10/2020)

39 MOTION for Leave to File the List of Class and Subclass Members under Seal (proposed order submitted) by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Pentecost, James) (Entered: 06/12/2020)

40 MOTION to Amend/Correct 38 Order on Motion to Certify Class, Order on Motion to Dismiss proposed order submitted by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Stokes, J.) (Entered: 06/12/2020)

41 Sealed Document Preliminary Class List. (Stokes, J.) (Entered: 06/12/2020)

42 ORDER GRANTING DEFENDANTS' MOTION 39 FOR LEAVE TO FILE LIST OF CLASS AND SUBCLASS MEMBERS UNDER SEAL AND DEFENDANTS' MOTION 40 TO EXTEND THE DEADLINE FOR FILING THE LIST OF CLASS AND SUBCLASS MEMBERS. Signed by Judge Sheryl H. Lipman on 6/12/2020. (shl) (Entered: 06/12/2020)

43 Sealed Document Class List. (Tilly, Nathan) (Entered: 06/12/2020)

44 Sealed Document Subclass List. (Tilly, Nathan) (Entered: 06/12/2020)

45 ORDER ADDRESSING MOTION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Sheryl H. Lipman on 6/12/2020. (shl) (Entered: 06/12/2020)

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06/18/2020

46 NOTICE of Hearing on First Motion for Temporary Restraining Order 2 : The Court will hold a hearing on June 30, 2020 at 9:00 a.m. in Courtroom #1 - Memphis to hear from the Independent Inspector on his or her findings as well as any other proof the Parties wish to offer.(smm) (Entered: 06/15/2020)
47 First MOTION to Continue Hearing, proposed order submitted by All Defendants. (Attachments: # 1 Affidavit James I. Pentecost, # 2 Affidavit Nathan D. Tilly)(Pentecost, James) (Entered: 06/15/2020)
48 NOTICE by Favian Busby, Michael Edgington of Proposed Inspectors and Scope (Attachments: # 1 Exhibit Venters CV, # 2 Exhibit Brinkley-Rubinstein CV)(Woods, Andrea) (Entered: 06/16/2020)
49 NOTICE by Floyd Bonner, Jr., Shelby County Sheriff's Office re 45 Order of Proposed Independent Inspectors (Attachments: # 1 Exhibit Proposed Inspector Letter, # 2 Exhibit Bedard CV, # 3 Exhibit Brady Resume)(Stokes, J.) (Entered: 06/16/2020)
50 AMENDED COMPLAINT against All Defendants All Defendants., filed by All Plaintiffs.(Timmons, Brice) (Entered: 06/16/2020)
51 AFFIDAVIT re 2 First MOTION for Temporary Restraining Order Proposed Order Submitted Decl. W. Dozier for Joseph Nelson by Favian Busby, Michael Edgington. (Timmons, Brice) (Entered: 06/16/2020)
52 AFFIDAVIT re 2 First MOTION for Temporary Restraining Order Proposed Order Submitted Decl. J. Spickler for Russell Leaks by Favian Busby, Michael Edgington. (Timmons, Brice) (Entered: 06/16/2020)
53 NOTICE OF SETTING (TEXT ONLY NO IMAGE ASSOCIATED WITH THIS ENTRY): The parties are hereby notified that a Status Conference has been set for Thursday, June 18, 2020 at 1:00 PM via Skype Video before Judge Sheryl H. Lipman. The Court will send, via email, to each attorney, an invitation for the conference. Parties shall consult the Skype for Business webpage for instructions on downloading the proper extensions for their computer. (smm) (Entered: 06/17/2020)
54 Minute Entry for proceedings held before Judge Sheryl H. Lipman: Status Conference was held via Skype Video on 6/18/2020. Jonathan Silberstein-Loeb, Andrea Woods, Brice M.

06/18/2020
06/18/2020 06/19/2020

Timmons, Zoe Brennan-Krohn and Joshua Spickler appeared for the plaintiff(s). J. Austin Stokes, James I. Pentecost, Nathan D. Tilly, Bridgett L. Stigger and Marlinee Iverson appeared for the defendant(s). The prospective investigators were discussed and the court ruled that the fees for the investigator would be split 50/50 between them parties. Defendant's motion to continue 47 was granted. The Court will hold a hearing on Wednesday, July 1, 2020 at 1:30 PM (CST) via Skype to hear from the Independent Inspector on his or her findings as well as any other proof the Parties wish to offer.(Court Reporter: Kristi Heasley) (smm) (Entered: 06/18/2020)
55 SETTING LETTER - (TEXT ONLY - NO IMAGE ASSOCIATED WITH THIS ENTRY): Hearing on First Motion for Temporary Restraining Order 2 : The Court will hold a hearing on Wednesday, July 1, 2020 at 1:30 PM (CST) to hear from the Independent Inspector on his or her findings as well as any other proof the Parties wish to offer.
The proceeding will be done via Skype for Business video conference. The Court will email the parties an invitation for the video conference prior to the proceeding.
Counsel should submit any exhibits to be offered to the Judge's ECF mailbox prior to the proceeding.
The public may also access the video proceeding. If the public and/or media wish to attend in the video proceeding, please click on the following link to request access information: https://www.tnwd.uscourts.gov/videohearings The access information will be delivered via email to the email address from which the request originated.
Parties shall consult the Skype for Business webpage for instructions on downloading the proper extensions for their computer.
(smm) (Entered: 06/18/2020)
56 INSPECTION ORDER. Signed by Judge Sheryl H. Lipman on 06/18/2020. (shl) (Entered: 06/18/2020)
57 MOTION for Discovery with Incorporated Memorandum of Law by All Plaintiffs. (Attachments: # 1 Exhibit Proposed Interrogatories, # 2 Exhibit Proposed Requests for Production, # 3 Exhibit Proposed Deposition Notice for K Fields, # 4 Exhibit

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Proposed Deposition Notice for B Randolph, # 5 Exhibit Proposed Deposition Notice for D Randolph, # 6 Exhibit Notice of lnspection)(Timmons, Brice) (Entered: 06/19/2020)
58 COURTESY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 57 MOTION for Discovery with Incorporated Memorandum of Law filed by Favian Busby, Michael Edgington has been filed. For future reference, please note Filer failed to include a certificate of consultation. Document may be filed as an attachment to 57 . Please refer to the ECF User Manual and ECF Policies and Procedures. Filer is not required to resubmit document. (jae) (Entered: 06/19/2020)
59 CERTIFICATE of Counsel re 57 MOTION for Discovery with Incorporated Memorandum of Law Certificate of Consultation by Brice Moffatt Timmons on behalf of All Plaintiffs (Timmons, Brice) (Entered: 06/19/2020)
60 ORDER ADDRESSING PLAINTIFFS' MOTION FOR EXPEDITED DISCOVERY. Signed by Judge Sheryl H. Lipman on 6/19/2020. (shl) (Entered: 06/19/2020)
61 ORDER SETTING EXPEDITED BRIEFING SCHEDULE ON MOTION 57 FOR EXPEDITED DISCOVERY. Signed by Judge Sheryl H. Lipman on 6/19/2020. (shl) (Entered: 06/19/2020)
62 CERTIFICATE of Counsel re 60 Order, 57 MOTION for Discovery with Incorporated Memorandum of Law, 58 Courtesy Notice,, Amended Certificate of Consultation by Brice Moffatt Timmons on behalf of All Plaintiffs (Timmons, Brice) (Entered: 06/22/2020)
63 Notice of Correction to 57 MOTION for Discovery with Incorporated Memorandum of Law Exhibit E - Notice to Take Deposition of Donna Randolph. (Attachments: # 1 Exhibit Notice to Take Deposition of Donna Randolph)(Timmons, Brice) (Entered: 06/22/2020)
64 RESPONSE in Opposition re 57 MOTION for Discovery with Incorporated Memorandum of Law filed by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Tilly, Nathan) (Entered: 06/22/2020)
65 NOTICE OF SETTING - (TEXT ONLY - NO IMAGE ASSOCIATED WITH THIS ENTRY): The parties are hereby notified that a Status Conference, to discuss the pending discovery

06/23/2020

motion 57 has been set for Tuesday, June 23, 2020 at 11:00 AM (CST) before Judge Lipman.
The proceeding will be done via Skype for Business video conference. The Court will email the parties an invitation for the video conference prior to the proceeding.
Counsel should submit any exhibits to be offered to the Judge's ECF mailbox prior to the proceeding.
The public may also access the video proceeding. If the public and/or media wish to attend in the video proceeding, please click on the following link to request access information: https://www.tnwd.uscourts.gov/videohearings The access information will be delivered via email to the email address from which the request originated.
Parties shall consult the Skype for Business webpage for instructions on downloading the proper extensions for their computer.
(smm) Modified on 6/22/2020 (smm). (Entered: 06/22/2020)
66 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on June 18, 2020, Status Conference before Judge Sheryl H. Lipman. Court Reporter Kristi Heasley, Telephone number 731-421-9237.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 6/29/2020. Redaction Request due 7/14/2020. Release of Transcript Restriction set for 9/21/2020. (Heasley, Kristi) (Entered: 06/23/2020)

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06/24/2020 06/24/2020

67 Minute Entry for proceedings held before Judge Sheryl H. Lipman: A Status Conference, to discuss the pending discovery motion 57 was held via Skype Video on 6/23/2020. Jonathan Silberstein-Loeb, Amreeta Mathai, Andrea Woods, Brice M. Timmons, Zoe Brennan-Krohn, and Stella M. Yarbrough appeared for the plaintiff(s). J. Austin Stokes, James I. Pentecost, Nathan D. Tilly, Bridgett L. Stigger and Marlinee Iverson appeared for the defendant(s). Defendants shall respond to the interrogatories and requests for production by Friday, June 26, 2020 and shall respond to all remaining requests by Monday, June 29, 2020. Written Order to be entered. (Court Reporter: Candace Covey) (smm) (Entered: 06/23/2020)
68 MOTION for Leave to Appear Pro Hac Vice Proposed Order Submitted (Filing fee $ 150 receipt number ATNWDC-3374125) by All Plaintiffs. (Attachments: # 1 State of New York Certificate of Good Standing, # 2 Eastern District of California Certificate of Good Standing, # 3 Proposed Order)(Morris, Maria) (Entered: 06/23/2020)
69 ORDER GRANTING IN PART AND LIMITING IN PART PLAINTIFFS' MOTION 57 FOR EXPEDITED DISCOVERY. Signed by Judge Sheryl H. Lipman on 6/23/2020. (shl) (Entered: 06/23/2020)
70 DEFICIENCY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 68 MOTION for Leave to Appear Pro Hac Vice Proposed Order Submitted (Filing fee $ 150 receipt number ATNWDC-3374125) filed by Favian Busby, Michael Edgington has been filed. However, the following deficiency has been found: One of your certificates is more than six months old (Sept 2019) and it is preferred that a more current certificate be obtained. Also, proposed orders are not to be published on the docket, but only emailed to chambers. This motion will be termed pending re-submission. Please refer to the ECF User Manual and ECF Policies and Procedures. The filer has one business day to correct the deficiency. (jae) (Entered: 06/24/2020)
71 Corrected MOTION for Leave to Appear Pro Hac Vice Proposed Order Submitted (Fee paid as part of previous filing) by All Plaintiffs. (Attachments: # 1 State of New York Certificate of Good Standing, # 2 Eastern District of California Certificate of Good Standing)(Morris, Maria) (Entered: 06/24/2020)
72 ORDER granting 71 Motion for Leave to Appear Pro Hac Vice. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**] Signed

06/26/2020
06/26/2020 06/29/2020 06/30/2020 06/30/2020 06/30/2020 07/01/2020

by Judge Sheryl H. Lipman on 6/24/20. (Lipman, Sheryl) (Entered: 06/24/2020)
73 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/23/20 before Judge Sheryl H. Lipman. Court Reporter Candace Covey, Telephone number 901-495-1216.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 7/1/2020. Redaction Request due 7/17/2020. Release of Transcript Restriction set for 9/24/2020. (Covey, Candace) (Entered: 06/26/2020)
74 Joint MOTION for Protective Order by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Attachments: # 1 Agreed Protective Order)(Stokes, J.) (Entered: 06/26/2020)
75 ORDER GRANTING JOINT MOTION 74 FOR ENTRY OF A PROTECTIVE ORDER. Signed by Judge Sheryl H. Lipman on 6/29/2020. (shl) (Entered: 06/29/2020)
INSPECTION REPORT. (Lipman, Sheryl) (Entered: 06/30/2020) 76
77 NOTICE by Favian Busby, Michael Edgington PetitionersPlaintiffs' Notice of Supplemental Authority (Attachments: # 1 Exhibit Exhibit A)(Timmons, Brice) (Entered: 06/30/2020)
78 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by All Defendants. (Attachments: # 1 Memorandum in support of motion to dismiss, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Tilly, Nathan) (Entered: 06/30/2020)
79 NOTICE of Hearing on Motion: A Hearing on First Motion for Temporary Restraining Order 2 has been set for Friday, July 10,

07/01/2020 07/01/2020 07/01/2020
07/01/2020 07/05/2020

2020 at 9:30 AM before Judge Sheryl H. Lipman.. The Court will send, via email, to each attorney, an invitation for the conference. Parties shall consult the Skype for Business webpage for instructions on downloading the proper extensions for their computer. (smm) (Entered: 07/01/2020)
80 INSPECTION REPORT. (Only changes are corrected typos and grammatical errors.) (shl) (Entered: 07/01/2020)
81 NOTICE of Appearance by Joshua Spickler on behalf of All Plaintiffs (Spickler, Joshua) (Entered: 07/01/2020)
82 Minute Entry for proceedings held before Judge Sheryl H. Lipman: A hearing to discuss the Inspector's findings was held via skype video on 7/1/2020. Joshua Spickler, Amreeta Mathai, Andrea Woods, Jonathan Silberstein-Loeb, Brice M. Timmons, Zoe Brennan-Krohn, and Stella M. Yarbrough appeared for the plaintiff(s). J. Austin Stokes, James I. Pentecost, Nathan D. Tilly, Bridgett L. Stigger and Marlinee Iverson appeared for the defendant(s). Sworn witnesses: Mike Brady, Director of Sabot Consulting. Exhibit 1 marked and admitted. Petitioner's response to Defendant's Motion to Dismiss 78 is due by July 15, 2020. Findings of Facts and Conclusions of Law from both parties due by July 15, 2020. A Hearing on the First Motion for Temporary Restraining Order 2 set for Friday, July 10, 2020 at 9:30 AM via Skype Video before Judge Sheryl H. Lipman. (Court Reporter: Catherine Phillips) (smm) (Entered: 07/01/2020)
83 EXHIBIT & WITNESS LIST. (smm) (Entered: 07/01/2020)
84 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings before Judge Sheryl H. Lipman. Court Reporter Catherine J. Phillips, Telephone number 901-495-1535.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.

07/07/2020 07/07/2020 07/08/2020 07/08/2020
07/08/2020 07/08/2020 07/09/2020

Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 7/10/2020. Redaction Request due 7/27/2020. Release of Transcript Restriction set for 10/5/2020. (cjp) (Entered: 07/05/2020)
85 Amicus Curiae APPEARANCE entered by Janet Goode on behalf of Amici Curiae of Prison Rights Organizations. (Attachments: # 1 Memorandum)(Goode, Janet) (Entered: 07/07/2020)
86 MOTION for Leave to Appear Pro Hac Vice Proposed Order Submitted (Filing fee $ 150 receipt number ATNWDC-3383251) by Favian Busby, Michael Edgington. (Attachments: # 1 Certificate of Good Standing - NY, # 2 Certificate of Good Standing - SDNY)(Robinson, Edward) (Entered: 07/07/2020)
87 MOTION for Writ of Habeas Corpus ad testificandum Unopposed Writ by All Plaintiffs. (Woods, Andrea) (Entered: 07/08/2020)
88 DEFICIENCY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 86 MOTION for Leave to Appear Pro Hac Vice Proposed Order Submitted (Filing fee $ 150 receipt number ATNWDC-3383251) filed by Favian Busby, Michael Edgington has been filed. However, the following deficiency has been found: the certificate of good standing (SDNY) is more than 30 days old. Please refer to the ECF User Manual and ECF Policies and Procedures. The filer has one business day to correct the deficiency. (agj) (Entered: 07/08/2020)
89 MOTION for Leave to Appear Pro Hac Vice Proposed Order Submitted (Filing fee $ 150 receipt number ATNWDC-3384133) by Favian Busby, Michael Edgington. (Attachments: # 1 Certificate of Good Standing - NY, # 2 Certificate of Good Standing - EDNY)(Borner, Meredith) (Entered: 07/08/2020)
90 ORDER granting 89 Motion for Leave to Appear Pro Hac Vice. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**] Signed by Judge Sheryl H. Lipman on 7/8/20. (Lipman, Sheryl) (Entered: 07/08/2020)
91 RESPONSE to Motion re 87 MOTION for Writ of Habeas Corpus ad testificandum Unopposed Writ filed by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Tilly, Nathan) (Entered: 07/09/2020)

07/09/2020 07/09/2020 07/09/2020 07/09/2020 07/09/2020 07/09/2020 07/09/2020 07/09/2020 07/09/2020

92 MOTION for Leave to Appear Pro Hac Vice Proposed Order Submitted (Fee paid as part of previous filing) by Favian Busby, Michael Edgington. (Attachments: # 1 Certificate of Good Standing - NY, # 2 Certificate of Good Standing EDNY)(Robinson, Edward) (Entered: 07/09/2020)
93 ORDER granting 92 Motion for Leave to Appear Pro Hac Vice. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**] Signed by Judge Sheryl H. Lipman on 7/9/20. (Lipman, Sheryl) (Entered: 07/09/2020)
94 MOTION for Leave to File Reply Proposed Order Submitted by Favian Busby, Michael Edgington. (Attachments: # 1 Exhibit Proposed Reply Brief in Support of Writ)(Woods, Andrea) (Entered: 07/09/2020)
95 MOTION for Leave to Appear Pro Hac Vice (Filing fee $ 150 receipt number ATNWDC-3384598) by Favian Busby, Michael Edgington. (Attachments: # 1 Cert of Good Standing, # 2 Cert of Good Standing, # 3 Proposed Order)(Robinson, Jeffery) (Entered: 07/09/2020)
96 ORDER granting 95 Motion for Leave to Appear Pro Hac Vice. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**] Signed by Judge Sheryl H. Lipman on 7/9/20. (Lipman, Sheryl) (Entered: 07/09/2020)
97 Joint MOTION for Leave to File Partially Redacted Class and Subclass Lists (proposed order submitted) by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Stokes, J.) (Entered: 07/09/2020)
98 NOTICE by Floyd Bonner, Jr., Shelby County Sheriff's Office re 27 Response in Opposition to Motion, Declaration of Bruce Randolph, M.D. M.P.H (Attachments: # 1 Declaration of Bruce Randolph, M.D. M.P.H)(Stokes, J.) (Entered: 07/09/2020)
99 NOTICE by Floyd Bonner, Jr., Shelby County Sheriff's Office re 27 Response in Opposition to Motion, of Filing Deposition of Donna Randolph, M.D. (Attachments: # 1 Deposition of Donna Randolph, M.D.)(Stokes, J.) (Entered: 07/09/2020)
100 NOTICE by Floyd Bonner, Jr., Shelby County Sheriff's Office re 27 Response in Opposition to Motion, of Filing Declaration of Mischelle Best (Attachments: # 1 Declaration of Mischelle Best)(Stokes, J.) (Entered: 07/09/2020)

07/09/2020 07/09/2020
07/09/2020 07/09/2020 07/10/2020 07/10/2020

101 Exhibit List by Floyd Bonner, Jr., Shelby County Sheriff's Office.. (Attachments: # 1 Exhibit A - Photos of Tunnel, # 2 Exhibit B Population Chart, # 3 Exhibit C - Inmate Classification Policy, # 4 Exhibit D - Accomodations of Inmates with Disabilities Policy, # 5 Exhibit E - Inmates Medical Rights Policy, # 6 Exhibit F - Special Segregation Policy, # 7 Exhibit G - Bates SCSO#000137-000140)(Tilly, Nathan) (Entered: 07/09/2020)
102 Plaintiffs' Unopposed Petition for Writ for Habeas Corpus Ad Testifacandum (ECF No. 87 ) is GRANTED IN PART. Custody of the Witnesses will be turned over to the United States Marshals within the Shelby County Jail facility, and the witnesses will testify from the video conferencing room within that facility. No Shelby County Jail personnel will be present during the testimony. After the testimony has concluded, custody will be returned to the Sheriff. This process will protect the health of the witnesses by eliminating any need to be transported to another facility while also protecting against the testimony being overheard by jail personnel. [**TEXT ORDER ONLY--NO IMAGE ATTACHED.**]. Signed by Judge Sheryl H. Lipman on 7/9/20. (Lipman, Sheryl) (Entered: 07/09/2020)
103 Exhibit List Plaintiffs' Exhibit List by Favian Busby, Michael Edgington.. (Attachments: # 1 Exhibit Expert Report of Dr. Homer Venters, # 2 Exhibit Defendants' Response to Interrogatories, # 3 Exhibit Wellpath Guidelines and Procedures)(Woods, Andrea) (Entered: 07/09/2020)
104 NOTICE by Floyd Bonner, Jr., Shelby County Sheriff's Office re 78 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Further Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Tilly, Nathan) (Entered: 07/09/2020)
105 ORDER GRANTING JOINT MOTION 97 FOR LEAVE TO FILE PARTIALLY REDACTED CLASS AND SUBCLASS LISTS. Signed by Judge Sheryl H. Lipman on 7/10/2020. (shl) (Entered: 07/10/2020)
106 Minute Entry for proceedings held before Judge Sheryl H. Lipman: Skype Video Motion Hearing (DAY 1) held on 7/10/2020 re: 2 Motion for Temporary Restraining Order. Jeffery P. Robinson, Joshua B. Spickler, Amreeta Mathai, Andrea Woods,

07/11/2020 07/11/2020
07/13/2020

Jonathan Silberstein-Loeb, Maria Morris, Stella Marie Yarbrough, Zoe Brennan-Krohn and Brice Moffatt Timmons appeared for the Plaintiffs. J. Austin Stokes, James I. Pentecost, Nathan Daniel Tilly, Bridgett L. Stigger and Marlinee Iverson appeared for the Defendants. Preliminary matters addressed: The Court allowed 85 the Amicus brief. Responses to each others Finding of Fact and Conclusions of Law as well as Defendant's reply to Plaintiff's response to Defendant's Motion to Dismiss due by 7/20/2020. Plaintiffs' proof/sworn witnesses re: Motion for TRO Russell Leaks: Exh. A marked as ID only; Robert Harold Pigram; and Dr. Homer Venters: Exh. 1. Motion Hearing will resume on Monday, 7/13/2020 at 9:30 AM before Judge Sheryl H. Lipman via Skype. (Court Reporter: Candace Covey) (jpw) (Entered: 07/10/2020)
107 Notice of Correction to 103 Exhibit List, Corrected Venters Report. (Attachments: # 1 Exhibit Corrected Venters Report, # 2 Exhibit Redline of Corrected Venters Report)(Woods, Andrea) (Entered: 07/11/2020)
108 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 07/10/20 before Judge Sheryl H. Lipman. Court Reporter Candace Covey, Telephone number 901-495-1216.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 7/16/2020. Redaction Request due 8/3/2020. Release of Transcript Restriction set for 10/9/2020. (Covey, Candace) (Entered: 07/11/2020)
109 Minute Entry for proceedings held before Judge Sheryl H. Lipman: Skype Video Motion Hearing (DAY 2) held on 7/13/2020 re: 2 Motion for Temporary Restraining Order. Jeffery P. Robinson, Joshua B. Spickler, Amreeta Mathai, Andrea Woods,

07/13/2020 07/13/2020
07/15/2020 07/15/2020 07/15/2020

Jonathan Silberstein-Loeb, Maria Morris, Stella Marie Yarbrough, Zoe Brennan-Krohn, Michael G. McLaren and Brice Moffatt Timmons appeared for the Plaintiffs. J. Austin Stokes, James I. Pentecost, Nathan Daniel Tilly, Bridgett L. Stigger and Marlinee Iverson appeared for the Defendants. Defendants' proof/sworn witnesses: Chief Jailer Kirk Fields: Exhs. 2-8; Amy Weirich; and Judge John W. Campbell. End of proof. Closing arguments heard. Motion taken under advisement. Order to be entered. (Court Reporter: Candace Covey) (jpw) (Entered: 07/13/2020)
110 Exhibit List as to Motion for TRO held on 7/10/2020 and 7/13/2020. (jpw) (Entered: 07/13/2020)
111 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 07-13-20 before Judge Sheryl H. Lipman. Court Reporter Candace Covey, Telephone number 901-495-1216.
Notice is hereby given that an official transcript of a proceeding has been filed by the court reporter in this matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript, and twenty-one (21) calendar days to file a Request for Redaction. Redaction is the responsibility of the attorneys and pro se litigants who attended the hearing to which the transcription applies. Each party is responsible for reviewing and requesting redaction of testimony of witnesses that were called for the party and for that party's own statements.
Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal.. Notice of Intent to Request Redaction due 7/20/2020. Redaction Request due 8/3/2020. Release of Transcript Restriction set for 10/13/2020. (Covey, Candace) (Entered: 07/13/2020)
112 Proposed Findings of Fact by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Stokes, J.) (Entered: 07/15/2020)
113 RESPONSE in Opposition re 78 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by All Plaintiffs. (Woods, Andrea) (Entered: 07/15/2020)
114 Proposed Findings of Fact by Favian Busby, Michael Edgington. (Attachments: # 1 Exhibit Ex. A Kirk Fields Deposition, # 2 Exhibit Ex. B Dr. Donna Randolph Deposition, # 3 Exhibit Ex. C Dr. Bruce Randolph Deposition, # 4 Exhibit Ex. D Quarantine

and Isolation Emails, # 5 Exhibit Ex. E Daily Population March through June)(Woods, Andrea) (Entered: 07/15/2020)

07/17/2020

115 MOTION for Leave to File Amicus Brief by State of Tennessee. (Attachments: # 1 Exhibit Attachment to Motion for Leave to File Amicus Brief, # 2 Exhibit Amicus Brief, # 3 Exhibit Attachments to Amicus Brief)(Bledsoe, John) (Entered: 07/17/2020)

07/17/2020

116 NOTICE by Floyd Bonner, Jr., Shelby County Sheriff's Office re 105 Order on Motion for Leave to File Redacted Class and Subclass Lists (Attachments: # 1 Subclass List)(Stokes, J.) (Entered: 07/17/2020)

07/17/2020

117 ORDER GRANTING MOTION 115 FOR LEAVE TO FILE AMICUS BRIEF BY THE STATE OF TENNESSEE. Signed by Judge Sheryl H. Lipman on 6/17/2020. (shl) (Entered: 07/17/2020)

07/20/2020

118 NOTICE by State of Tennessee Amicus Brief of the State of Tennessee (Attachments: # 1 Exhibit TCCA Cases)(Bledsoe, John) (Entered: 07/20/2020)

07/20/2020

119 REPLY to Response to Motion re 113 Response in Opposition to Motion to Dismiss filed by All Defendants. (Tilly, Nathan) (Entered: 07/20/2020)

07/20/2020 120

NOTICE by Floyd Bonner, Jr., Shelby County Sheriff's Office re 114 Proposed Findings of Fact, Defendants' Response to Plaintiffs' Findings of Fact & Conclusions of Law (Stokes, J.) (Entered: 07/20/2020)

07/20/2020

121 RESPONSE in Support re 2 First MOTION for Temporary Restraining Order Proposed Order Submitted Response to Defendants' Proposed Findings of Fact and Conclusions of Law filed by Favian Busby, Michael Edgington. (Woods, Andrea) (Entered: 07/20/2020)

07/24/2020

122 ORDER DENYING DEFENDANTS' SECOND MOTION 78 TO DISMISS. Signed by Judge Sheryl H. Lipman on 7/24/2020. (shl) (Entered: 07/24/2020)

08/04/2020

123 NOTICE by Favian Busby, Michael Edgington of Supplemental Authority (Attachments: # 1 Exhibit Malam Order Establishing Bail Process)(Woods, Andrea) (Entered: 08/04/2020)

08/07/2020

124 ORDER DENYING PLAINTIFFS' MOTION 2 FOR PRELIMINARY INJUNCTION. Signed by Judge Sheryl H. Lipman on 8/7/2020. (shl) (Entered: 08/07/2020)

08/10/2020
08/14/2020 08/14/2020

125 SETTING LETTER: (TEXT ONLY - NO IMAGE ASSOCIATED WITH THIS ENTRY): A Status Conference has been set for Thursday, August 13, 2020 at 2:00 PM in Courtroom 1 - Memphis before Judge Sheryl H. Lipman.
The proceeding will be done via Skype for Business video conference. The Court will email the parties an invitation for the video conference prior to the proceeding.
Counsel should submit any exhibits to be offered to the Judge's ECF mailbox prior to the proceeding.
The public may also access the video proceeding. If the public and/or media wish to attend in the video proceeding, please click on the following link to request access information: https://www.tnwd.uscourts.gov/videohearings The access information will be delivered via email to the email address from which the request originated.
Parties shall consult the Skype for Business webpage for instructions on downloading the proper extensions for their computer.
Please email Sandra McClain at sandra_mcclain@tnwd.uscourts.gov for any questions. (smm) (Entered: 08/10/2020)
126 Minute Entry for proceedings held before Judge Sheryl H. Lipman: A Status Conference was held via Skype Video on 8/14/2020. Joshua B. Spickler, Amreeta Mathai, Andrea Woods, Jonathan Silberstein-Loeb, Maria Morris, Stella Marie Yarbrough, Zoe Brennan-Krohn, and Brice Moffatt Timmons appeared for the Plaintiffs. J. Austin Stokes, James I. Pentecost, Nathan Daniel Tilly, Bridgett L. Stigger and Marlinee Iverson appeared for the Defendants. The court discussed the status of the case with the parties and set a Scheduling Conference for Monday, August 24, 2020 at 10:00 AM (CST) in Courtroom 1 - Memphis before Judge Sheryl H. Lipman. If the parties submit a joint proposed scheduling order to the court prior to the hearing, the scheduling conference will be cancelled. (Court Reporter: Candace Covey) (smm) (Entered: 08/14/2020)
127 SETTING LETTER: A Scheduling Conference has been set for Monday, August 24, 2020 at 10:00 am in Courtroom 1 - Memphis before Judge Sheryl H. Lipman. If the parties submit an agreed

08/18/2020 08/24/2020

upon joint proposed scheduling order to the court prior to the hearing, the scheduling conference will be cancelled.
The proceeding will be done via Skype for Business video conference. The Court will email the parties an invitation for the video conference prior to the proceeding.
Counsel should submit any exhibits to be offered to the Judge's ECF mailbox prior to the proceeding.
The public may also access the video proceeding. If the public and/or media wish to attend in the video proceeding, please click on the following link to request access information: https://www.tnwd.uscourts.gov/videohearings The access information will be delivered via email to the email address from which the request originated.
Parties shall consult the Skype for Business webpage for instructions on downloading the proper extensions for their computer.
Please email Sandra McClain at sandra_mcclain@tnwd.uscourts.gov for any questions.(smm) (Entered: 08/14/2020)
128 Pursuant to Admin. Order 2020-31 referral judge reassigned to Magistrate Judge Annie T. Christoff.(cdi) (Entered: 08/18/2020)
129 TRANSCRIPT RELEASE NOTICE:
By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.
Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days.

08/24/2020
08/24/2020 08/24/2020 09/14/2020

If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. (re DE# 36 ; release date 8/31/2020) (tlh) (Entered: 08/24/2020)
130 Minute Entry for proceedings held before Judge Sheryl H. Lipman: Scheduling Conference was held via Skype Video on 08/24/2020. Andrea Woods, Jonathan Silberstein-Loeb, Joshua B. Spickler, Andrea Woods, Maria Morris, Edward Robinson, Jr., Brice M. Timmons and Zoe Brennan-Krohn appeared for the plaintiff(s). James I. Pentecost, J. Austin Stokes, Bridgett L. Stigger, and Marlinee Iverson appeared for the defendant(s). The court discussed the dates and deadlines with the parties. Non-Jury Trial set for Monday, May 24, 2021 at 9:30 AM in Courtroom 1 Memphis before Judge Sheryl H. Lipman. Trial is estimated to last 5 days. Joint Proposed Pretrial Order due by Friday, May 7, 2021. Pretrial Conference set for Friday, May 14, 2021 at 10:00 AM in Courtroom 1 - Memphis before Judge Sheryl H. Lipman. Scheduling Order to be entered. (Court Reporter: Candace Covey)(smm) (Entered: 08/24/2020)
131 NOTICE SETTING NON-JURY TRIAL WITH PRETRIAL PROCEDURES: Non-Jury Trial set for Monday, May 24, 2021 at 9:30 AM in Courtroom 1 - Memphis before Judge Sheryl H. Lipman. Trial is estimated to last 5 days. Joint Proposed Pretrial Order due by Friday, May 7, 2021. Pretrial Conference set for Friday, May 14, 2021 at 10:00 AM in Courtroom 1 - Memphis before Judge Sheryl H. Lipman. (smm) (Entered: 08/24/2020)
132 SCHEDULING ORDER. Signed by Judge Sheryl H. Lipman on 8/24/20. (Lipman, Sheryl) (Entered: 08/24/2020)
133 TRANSCRIPT RELEASE NOTICE:
By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal

09/14/2020
09/15/2020 09/15/2020

case files, home addresses should reveal only the city and state of residence.
Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #66: Release Date 9/21/2020. (cas) (Entered: 09/14/2020)
134 TRANSCRIPT RELEASE NOTICE:
By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.
Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #73: Release Date 9/24/2020. (cas) (Entered: 09/14/2020)
135 First MOTION to Amend/Correct 50 Amended Complaint Proposed Order Submitted by Favian Busby. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11)(Timmons, Brice) (Entered: 09/15/2020)
136 First MOTION to Amend/Correct 38 Order on Motion to Certify Class, Order on Motion to Dismiss Proposed Order

09/15/2020 09/28/2020
09/28/2020

Submitted by Favian Busby. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Timmons, Brice) (Entered: 09/15/2020)
137 NOTICE by Favian Busby re 135 First MOTION to Amend/Correct 50 Amended Complaint Proposed Order Submitted Amended Exhibit A (ECF 135-1) 2nd Amended Petition, et al. (Timmons, Brice) (Entered: 09/15/2020)
138 TRANSCRIPT RELEASE NOTICE:
By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.
Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #84: Release Date 10/5/2020. (cas) (Entered: 09/28/2020)
139 TRANSCRIPT RELEASE NOTICE:
By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal

09/29/2020 09/29/2020 10/05/2020

case files, home addresses should reveal only the city and state of residence.
Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. Document #108: Release Date 10/9/2020. (cas) (Entered: 09/28/2020)
140 RESPONSE in Opposition re 135 First MOTION to Amend/Correct 50 Amended Complaint Proposed Order Submitted filed by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Tilly, Nathan) (Entered: 09/29/2020)
141 RESPONSE in Opposition re 136 First MOTION to
Amend/Correct 38 Order on Motion to Certify Class, Order on Motion to Dismiss Proposed Order Submitted filed by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Stokes, J.) (Entered: 09/29/2020)
142 TRANSCRIPT RELEASE NOTICE:
By Administrative Order 2008-35 the United States District Court for the Western District of Tennessee implemented a policy regarding remote access to electronic transcripts. Pursuant to that policy, as well as Civil Rule 5.2 and Criminal Rule 49.1, each party's attorney is required to review a transcript for information that should be redacted pursuant to the Judicial Conference's privacy policy which requires that Social Security numbers be redacted to show only the last four digits; birth dates should contain only the year of birth; individuals known to be minors should be referred to with initials; and financial account numbers should be redacted to the last four digits. Additionally, in criminal case files, home addresses should reveal only the city and state of residence.
Our records indicate that the 90-day restriction on public access to an electronic transcript(s) in this matter will lapse within 10 days. If a redaction request is required but has not been filed, please do so immediately. Please feel free to contact our office for further guidance on this issue. (re DE# 111 ; release date 10/13/2020) (tlh) (Entered: 10/05/2020)

10/06/2020 11/11/2020 11/12/2020 11/23/2020 11/24/2020 12/15/2020 12/15/2020 12/15/2020 12/15/2020 12/15/2020 12/15/2020 12/15/2020 12/15/2020

143 MOTION for Leave to File Reply Proposed Order Submitted by Favian Busby, Michael Edgington. (Attachments: # 1 Reply in Support of Motions)(Borner, Meredith) (Entered: 10/06/2020)
144 First MOTION to Amend/Correct 132 Scheduling Order Proposed Order Submitted by Favian Busby, Michael Edgington. (Woods, Andrea) (Entered: 11/11/2020)
145 ORDER granting 144 Joint Motion to Amend Scheduling Order. Signed by Judge Sheryl H. Lipman on 11/12/2020. (shl) (Entered: 11/12/2020)
146 Joint MOTION to Amend/Correct 132 Scheduling Order ADR Deadline (proposed order submitted) by Floyd Bonner, Jr., Shelby County Sheriff's Office. (Stokes, J.) (Entered: 11/23/2020)
147 ORDER granting 146 Joint Motion to Amend ADR Deadline. Signed by Judge Sheryl H. Lipman on 11/24/2020. (shl) (Entered: 11/24/2020)
148 NOTICE to Take Deposition of Alisa Styles by Favian Busby, Michael Edgington.(Timmons, Brice) (Entered: 12/15/2020)
149 NOTICE to Take Deposition of Debra Fessenden by Favian Busby, Michael Edgington.(Timmons, Brice) (Entered: 12/15/2020)
150 NOTICE to Take Deposition of Eric Davis by Favian Busby, Michael Edgington.(Timmons, Brice) (Entered: 12/15/2020)
151 NOTICE to Take Deposition of Dr. Judy Martin by Favian Busby, Michael Edgington.(Timmons, Brice) (Entered: 12/15/2020)
152 NOTICE to Take Deposition of Kirk Fields by Favian Busby, Michael Edgington.(Timmons, Brice) (Entered: 12/15/2020)
153 NOTICE to Take Deposition of Mischelle Best by Favian Busby, Michael Edgington.(Timmons, Brice) (Entered: 12/15/2020)
154 NOTICE to Take Deposition of Shelby County Sheriff's Office by Favian Busby, Michael Edgington. (Attachments: # 1 Exhibit Exhibit A)(Timmons, Brice) (Entered: 12/15/2020)
155 NOTICE to Take Deposition of Tiffany Ward by Favian Busby, Michael Edgington.(Timmons, Brice) (Entered: 12/15/2020)

12/16/2020 12/17/2020 12/22/2020 12/22/2020 12/28/2020 01/22/2021
01/28/2021
01/28/2021 01/28/2021

156 Joint MOTION to Amend/Correct 147 Order on Motion to Amend/Correct ADR Deadline (proposed order submitted) by All Plaintiffs. (Woods, Andrea) (Entered: 12/16/2020)
157 MEDIATION CERTIFICATION (Golwen, John) (Entered: 12/17/2020)
158 ORDER GRANTING JOINT MOTION TO AMEND ADR DEADLINE. Signed by Judge Sheryl H. Lipman on 12/22/2020. (shl) (Entered: 12/22/2020)
159 MEDIATION CERTIFICATION (Golwen, John) (Entered: 12/22/2020)
160 NOTICE of Settlement by Favian Busby, Michael Edgington (Woods, Andrea) (Entered: 12/28/2020)
161 Joint MOTION to Approve Consent Judgment Proposed Order Submitted by All Plaintiffs. (Attachments: # 1 Exhibit Proposed Preliminary Approval Order, # 2 Exhibit Proposed Consent Decree, # 3 Exhibit Settlement Agreement, # 4 Exhibit Proposed Plain Language Notice Form, # 5 Exhibit Proposed Detailed Notice Form)(Woods, Andrea) (Entered: 01/22/2021)
162 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PERMISSION TO POST CLASS NOTICE AS MODIFIED, AND SCHEDULING A FINAL APPROVAL HEARING. Signed by Judge Sheryl H. Lipman on 01/28/2021. (shl) (Entered: 01/28/2021)
163 ORDER DENYING MOTIONS 94 and 143 AS MOOT. [**TEXT ONLY ORDER--NO IMAGE ATTACHED.**] Signed by Judge Sheryl H. Lipman on 01/28/2021. (shl) (Entered: 01/28/2021)
164 SETTING LETTER: A Final Approval Hearing has been set for Friday, March 5, 2021 at 9:30 AM via Microsoft Teams Video Conference before Judge Sheryl H. Lipman.
The proceeding will be done via Microsoft Teams video conference. The Court will email the parties an invitation for the video conference prior to the proceeding.
Counsel should submit any exhibits to be offered to the Judge's ECF mailbox prior to the proceeding.

The public may also access the video proceeding. If the public and/or media wish to attend in the video proceeding, please click on the following link to request access information: https://www.tnwd.uscourts.gov/videohearings The access information will be delivered via email to the email address from which the request originated.
Parties should consult the instructions for Joining a Meeting in Teams or Joining a Meeting Without a Teams Account.
Please email Sandra McClain at sandra_mcclain@tnwd.uscourts.gov for any questions. (smm) (Entered: 01/28/2021)

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2:20-cv-02359SHL-atc
2.10

 
 Case 2:20-cv-02359 Document 1 Filed 05/20/20 Page 1 of 26 PageID 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. We are in the midst of the most significant global pandemic in generations.
COVID-19 is a highly contagious and deadly respiratory disease caused by a novel coronavirus
(SARS-CoV-2). The death rate of COVID-19 is estimated to be at least 2.3 percent, which is several times more than the common flu that kills thousands a year.1 The World Health Organization estimates that one in five people who contract the disease requires hospitalization.2
2. This action seeks urgent habeas and injunctive relief to protect medically vulnerable people and people with disabilities detained at Shelby County Jail3 (the “Jail”) who are at high risk
of severe injury or death from COVID-19. Favian Busby and Michael Edgington (the “Named
Plaintiffs”) seek to represent a class of all current and future medically vulnerable (as defined
below) pretrial detainees held at the Jail who, according to the Centers for Disease Control and
Prevention (the “CDC”), are at high risk of severe infection or death from COVID-19 (the
“Class”). Named Plaintiffs also seek to represent a subclass of current and future pretrial detainees
who are medically vulnerable and at high risk of severe injury or death from COVID-19 due to
disabilities protected under the Americans with Disabilities Act (“ADA”) and Section 504 of the
Rehabilitation Act (the “Subclass”).
1 The University of Tennessee Health Science Center estimates the fatality rate may be as high as 3.4 percent and notes that the novel coronavirus and COVID-19 are “100s of times worse than influenza.” Expert Responses, University of Tennessee Health Science Center, https://uthsc.edu/coronavirus/expert-responses.php (last visited May 19, 2020). As of May 17, 2020, there were 4,651,119 confirmed cases globally, with 312,119 deaths and 1,700,354 recoveries. Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering at Johns Hopkins University, Johns Hopkins University of Medicine, https://cutt.ly/StEyn2U; see also Coronavirus disease 2019 (COVID-19), UpToDate, https://cutt.ly/GtJYSkj (as of May 15, 2020, estimated overall fatality rate of 2.3 percent globally).
2 Q&A on Coronaviruses (COVID-19), “Should I Worry About COVID-19?,” World Health Organization, https://cutt.ly/YtEyrxl (last visited May 19, 2020).
3 For the purposes of this motion, “Shelby County Jail” or the “Jail” refers to the detention facility located at 201 Poplar Ave., Memphis, TN 38103.
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3.

COVID-19 has already spread throughout the Jail, infecting hundreds of people,

yet Defendants continue to detain the members of the Class and Subclass (collectively, the

“Classes”) despite the fact that they are likely to suffer severe infection or death if they contract

COVID-19 and despite the Petitioners-Plaintiffs’ (“Plaintiffs”) high risk of contracting the disease

by virtue of their housing at the Jail. Accordingly, Plaintiffs seek emergency relief from this Court

provisionally certifying the Class and Subclass and compelling Defendants to (a) release4

immediately Favian Busby and Michael Edgington; (b) promptly identify COVID vulnerable

individuals held at the Jail who are members of the Class; and (c) promptly release members of

the Class from detention.

JURISDICTION AND VENUE

4. Plaintiffs bring this putative class action pursuant to 28 U.S.C. § 2241 and for relief

from both detention that violates their Fourteenth Amendment rights under the U.S. Constitution

and pursuant to 42 U.S.C. § 12131 et seq. and 29 U.S.C. § 794 for relief from disability

discrimination.

5. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331

(federal question jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction) and Article I, Section 9,

clause 2 of the U.S. Constitution (the Suspension Clause).

4 The term “release,” as used throughout this Petition, refers to the discharge of detained individuals from the physical confines of the Shelby County Jail, not necessarily release from all forms of custody. Release options may include, but are not limited to: supervised release (including through the use of GPS or other forms of location monitoring), halfway house residential placement, transfer to a hospital or other facility, or diversion to alternative community and treatment programs. Indeed, Shelby County already maintains a Pretrial Services Department “offering alternatives to incarceration at every stage of the criminal justice system.” See Shelby Cty. Tenn., Pretrial Services, available at https://www.shelbycountytn.gov/250/Justice-Initiatives (last visited May 20, 2020).
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6. Venue lies in the U.S. District Court for the Western District of Tennessee, the judicial district in which Plaintiffs are currently in custody. Venue is proper in the Western District of Tennessee under 28 U.S.C. § 1391, as venue is proper in any district in which a defendant resides.
PARTIES 7. Michael Edgington is a pretrial detainee at Shelby County Jail. He is 60 years old, putting him at high risk of serious illness or death if he contracts COVID-19. 8. Favian Busby is a pretrial detainee at Shelby County Jail. He has diabetes and takes insulin. Additionally, he has developed hypertension as a result of his diabetes. These conditions put him at high risk of serious illness or death if he contracts COVID-19. 9. Respondent-Defendant Floyd Bonner, Jr. is the Sheriff of Shelby County, Tennessee and may be served with process at 201 Poplar Avenue, 9th Floor, Memphis, Tennessee 38103. Defendant Bonner is named in this action in his official capacity as the Sheriff of Shelby County. 10. Respondent-Defendant Shelby County Sheriff’s Department is a Tennessee governmental department which, by virtue of its custody of Plaintiffs, is a party defendant to this matter. Defendant Shelby County Sheriff’s Department may be served with process by serving Sheriff Floyd Bonner, Jr.
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FACTS A. Plaintiffs and the Class Members are at High Risk of Severe Injury or Death from
COVID-19. 11. COVID-19 is an extremely infectious and deadly disease that is transmitted from person to person. The University of Tennessee Health Science Center indicates COVID-19 may be hundreds of times more fatal than influenza.5 12. On March 12, 2020, Governor Bill Lee declared a state of emergency in Tennessee in response to COVID-19. The Tennessee Department of Health notes that as of May 19, 2020, 18,378 Tennesseans have been infected with COVID-19, with 1,498 hospitalizations and 305 deaths. The highest number of deaths to date have occurred in Shelby County, which has the second highest number of cases. 13. As of May 20, 2020, at least 4,761,559 people worldwide have tested positive for the virus, and 317,559 people have died.6 In the United States, at least 1,504,830 people have contracted the virus, and at least 90,340 people have died from it.7 Early data suggests COVID19’s mortality rate in the U.S. is 1.3 percent, and as high as 3.6 percent in some counties.8 14. COVID-19 can cause grave injury to the lungs and heart, causing myocarditis, or inflammation of the heart muscle. COVID-19 can also result in permanent injury to the kidneys.
5 University of Tennessee Health Science Center, supra note 1. 6 Coronavirus disease (COVID-19) pandemic, World Health Organization
https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited May 20, 2020). 7 Cases in the U.S., Centers for Disease Control and Prevention https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 20, 2020). 8 Anirban Basu, Estimating The Infection Fatality Rate Among Symptomatic COVID-19 Cases In The United States, Health Affairs (May 7, 2020) https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00455.
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15. Patients who experience severe infections from COVID-19 require supportive care,
including recourse to scarce medical equipment and specialized care providers, who are able to
monitor and implement the care these individuals require. This level of support can exceed local
health-care resources.
16. Patients who survive severe COVID-19 infections often require extensive
rehabilitation to mitigate neurologic damage and the loss of respiratory capacity. Many who suffer
from severe infections will likely experience lifelong limitations and disabilities.
17. Age is a significant risk factor for complications and death. The mortality rate is at
least 1-3 percent for those over 55, and less than 1 percent for those under 55.9 Certain underlying
medical conditions and disabilities increase the risk of complications or death from COVID-19
regardless of age.10 The University of Tennessee Health Science Center notes that medically
9 Severe Outcomes Among Patients With COVID-19, Centers for Disease Control and Prevention (Mar. 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm.
10 Known conditions associated with a heightened risk of mortality and complications from COVID-19 include, but are not limited to: blood disorders, such as sickle cell disease or the use of blood thinners; chronic kidney disease; chronic liver disease, including cirrhosis and chronic hepatitis; cancer or cancer treatments; organ or bone marrow transplant; the use of immunosuppressant medications; HIV or AIDS; diabetes; inherited metabolic disorders and mitochondrial disorders; heart disease, including coronary artery disease, congenital heart disease, and heart failure; lung disease, including asthma and COPD (chronic bronchitis or emphysema); neurological and neurologic development conditions such as cerebral palsy, stroke, muscular dystrophy, or spinal cord injury; severe obesity (which is defined as having a BMI of 40 or higher); intellectual or developmental disability that may inhibit a person’s ability to understand or act on prevention measures or communicate symptoms, and any other condition or treatment that weakens immune response. See Harvard Medical School, If you are at higher risk: How to reduce risk of infection and what to do if you get sick, Harvard Health Publishing (updated May 6, 2020), https://www.health.harvard.edu/diseases-andconditions/if-you-are-at-higher-risk; see also High-Risk Conditions, Centers For Disease Control And Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlyingconditions.html (last visited May 16, 2020); University of Tennessee Health Science Center, supra note 1 (“The elderly, persons with chronic respiratory or cardiac diseases, pregnant women, and immunocompromised persons are at high risk for poor outcomes from COVID19.”).
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vulnerable persons—those who are likely to suffer worse outcomes if they were to contract COVID-19—may well need to “stay at home as much as possible” because “the only current advice is to avoid others who might be sick.”11
18. According to the CDC, African Americans are at increased risk for the kinds of medical conditions and disabilities that increase the risk of serious illness or death from COVID19. The rate of diabetes is 60 percent higher in African Americans than in Caucasian Americans;12 the rate of hypertension is 40 percent higher.13 Recent analysis of CDC data shows that the COVID-19 mortality rate among African Americans is 2.6 times that of white Americans.14 On any given day, the population of the Jail is more than 86 percent African American.15 Both the Named Plaintiffs are African American.
B. Plaintiffs and the Class Members are Likely to Contract COVID-19 Unless They Are Released. 19. Experts agree that COVID-19 is primarily spread through respiratory droplets that
are inhaled by people nearby. Asymptomatic carriers of COVID-19 can also transmit it; public health officials estimate that as many as half of all transmitted cases pass from an infected person
11 University of Tennessee Health Science Center, supra note 1. 12 U.S. Department of Health and Human Services, Office of Minority Health, Diabetes and
African Americans (accessed May 18, 2020), https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=18. 13 U.S. Department of Health and Human Services, Office of Minority Health, Heart Disease and African Americans (accessed May 18, 2020), https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=19. 14 APM Research Lab Staff, Covid-19 Deaths by Races and Ethnicity in the U.S., APM Research Lab (May 12, 2020), https://www.apmresearchlab.org/covid/deaths-by-race. 15 MacArthur Foundation, Safety + Justice Challenge, “Shelby County, TN,” http://www.safetyandjusticechallenge.org/challenge-site/shelby-county/ (last visited May 20, 2020)
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with few or no symptoms.16 Experts at the University of Tennessee Health Science Center stress that people infected with COVID-19 may be infectious for upwards of 2–3 weeks, though any symptoms they experience last for far less time.17
20. There is no vaccine or cure for COVID-19. The only known way in which to mitigate the risk of contracting COVID-19 is to maintain at least six feet of distance from other people, and to practice vigilant hygiene, including frequent hand-washing, wearing face masks and gloves, and frequently sanitizing high-touch surfaces.18 Experts at the University of Tennessee Health Science Center note in particular that social distancing and rigorous hygiene are the “best prevention” and “better than even an N95 mask.”19
21. Accordingly, Governor Lee has required all Tennesseans who leave their homes to adhere to social distancing measures recommended by the CDC. Similarly, the Shelby County Health Department has advised all businesses to require that their employees and customers wear face masks and keep six feet from one another.20
22. Because it is impossible to practice social distancing in prisons and jails, and because these facilities are not sanitized on a daily basis and hygiene is generally lacking, prisons
16 Nathan W. Furukawa, et al., Evidence supporting transmission of severe acute respiratory syndrome coronavirus 2 while presymptomatic or asymptomatic, Emerg Infect Dis. (July 2020 online report) (accessed May 14, 2020), https://doi.org/10.3201/eid2607.201595.
17 University of Tennessee Health Science Center, supra note 1. 18 Id. (“The only current advice is to avoid others who might be sick and wash your hands
frequently and before touching your face,” and “The best way to prevent infection is not to go near someone who is sick with the disease.... If you are in areas with active disease outbreaks, then the best measures are to stay at least 6 feet away from anyone with symptoms, avoid close contact such as shaking hands, and practice frequent hand hygiene.”). 19 Id. 20 Lee Harris, Bruce Randolph and Alisa Haushalter, Formal Issuance of Health Directive No. 3, Shelby County Health Department (May 4, 2020), http://www.shelbytnhealth.com/CivicAlerts.aspx?AID=73.
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and jails across the country have become epicenters for COVID-19,21 including in Tennessee. In
addition to causing significant harm to those incarcerated, rampant outbreaks of COVID-19 in jails
become the direct cause of additional infections, hospitalizations, and deaths among jail staff and the surrounding community in which a jail sits.22
23. Across the country, governments and jail staff have recognized the threat that
COVID-19 poses to incarcerated people and the surrounding community. Jail administrators in
numerous states, including Alabama, California, Colorado, Ohio, and New Jersey, have concluded that widespread jail release is a necessary and appropriate public health intervention.23
24. Courts have intervened across the country to release COVID-vulnerable detainees
who are at high risk of severe infection or death from the disease. See, e.g., Wilson v. Williams,
No. 4:20-cv-00794, 2020 WL 1940882 (N.D. Ohio, Apr. 22, 2020) (ordering removal of all
medically vulnerable prisoners from a federal prison with a COVID-19 outbreak); Martinez-
Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350 (D. Conn. May 12, 2020)
(ordering identification of medically vulnerable detainees, their sentencing information, their
21 See, e.g., Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html; Sonia Moghe, Inside New York's notorious Rikers Island jails, 'the epicenter of the epicenter' of the coronavirus pandemic, CNN (May 16, 2020), https://www.cnn.com/2020/05/16/us/rikerscoronavirus/index.html; Katie Park et al., Tracking the Spread of Coronavirus in Prisons, The Marshall Project (Apr. 24, 2020), https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-inprisons; Lauren-Brooke Eisen, COVID-19 Continues its Toll on Jails and Prisons, Brennan Center (May 4, 2020) (interview with Dr. Homer Venters, former Chief Medical Officer of New York City Correctional Health System).
22 Eric Lofgren, et al., The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19, MEDRXIV (May 4, 2020), https://www.medrxiv.org/content/10.1101/2020.04.08.20058842v2.
23 Prison Policy Initiative, Responses to the COVID-19 pandemic (last updated May 19, 2020), https://www.prisonpolicy.org/virus/virusresponse.html#releases.
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consideration for compassionate release or home confinement, implementation of a process to make full and speedy use of home confinement, and requiring elimination of certain barriers to consideration for release or transfer).24 This includes decisions providing for the release of all medically vulnerable prisoners (or at least those not presenting special concerns of flight or dangerousness).25
25. Across Tennessee, positive tests in correctional facilities continue to rise.26 As reported on April 17, 2020, 23 pretrial detainees at the Jail were tested; five were positive for COVID-19.27 The Jail tested 266 pretrial detainees and employees on or about April 25th, and as reported on April 29th, seventy-two percent tested positive. 28 In data released on May 15, 151 pretrial detainees and 66 jail staff tested positive for COVID-19; publicly-available data does not yet show how many were tested in arriving at these numbers.29 The true numbers in the Jail are
24 See also Malam v. Adducci, No. 5:20-cv-10829, ECF. 22, 29 (E.D. Mich. Apr. 5, 2020, Apr. 9, 2020) (ordering release of two detainees in Michigan at high risk for serious illness due to their age and underlying health conditions); Cameron v. Bouchard, No. 20-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020).
25 Many courts have also ordered compassionate release or release based on time served in light of the dangers of COVID-19. See, e.g., United States v. Amarrah, No. 17-20464, 2020 WL 2220008 (E.D. Mich. May 7, 2020); United States v. Hansen, No. 17 CR 50062, 2020 WL 2219068 (N.D. Ill. May 7, 2020).
26 A State-by-State Look at Coronavirus in Prisons, The Marshall Project (last updated May 8, 2020) https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.
27 Yolanda Jones, Five Inmates Test Positive for COVID at Shelby County Jail as Bonner Takes Safety Precautions, DAILY MEMPHIAN (Apr. 17, 2020) https://dailymemphian.com/article/13074/sherifffloyd-bonner-five-inmates-positive-coronavirus-shelby-county-jail.
28 Yolanda Jones, More Than 70% Of Inmates Tested At 201 Poplar Are Positive For COVID-19, DAILY MEMPHIAN (Apr. 29, 2020) https://dailymemphian.com/article/13488/201-poplar-covidtesting-70-percent-positive.
29 Yolanda Jones, West Tennessee Prisons, Shelby County Jail Hit Hard by Coronavirus, Daily Memphian (May 18, 2020), https://dailymemphian.com/article/14121/tennessee-departmentof-correction-shelby-county-jail-covid-19-testing-positive.
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undoubtedly higher, as the Jail has not administered universal testing. To date, one Shelby County Jail employee has died from COVID-19.30
26. Dr. Joe Goldenson, a physician with over 33 years of experience in correctional health care, has explained that conditions at jails prohibit social distancing and “exacerbate the spread of infectious diseases, particularly diseases like COVID-19.” Likewise, Dr. Virginia Fefferman has explained, “[t]he living conditions within the jail spread disease. Incarcerated people cannot practice social distancing due to the lack of space, overcrowding, or the requirement of constant supervision. Incarcerated people are moved in groups from jail to court or, where court proceedings are halted due to this pandemic, forced to remain in their cells or dorms in close proximity to each other. Incarcerated people often have limited access to products and equipment necessary to practice good personal hygiene, such as soap, or hand sanitizer or cleaning products.”
27. As a result, Dr. Goldenson believes that “medically vulnerable persons at Shelby County Jail are at grave risk of death or serious illness” and “must be released as soon as possible.” Likewise, Dr. Fefferman has cautioned that “[e]ach additional day the jail system continues under current operational standards will cost lives in both the incarcerated population and the broader community each jail serves.”
C. The Class Members Are Unsafe and Their Rights Are Being Violated. 28. At the Jail, the Named Plaintiffs live in “pods” with cells lining an open communal
area. Every cell has at least one person, and most have two people. 29. When more than one person is in a cell, it is impossible to maintain a six-foot
distance from one another. Detainees report spending up to 30 to 48 hours at a time in the same cell with another person. Class members sleep in bunk beds, with one bed three to four feet
30 Yolanda Jones, Sheriff’s Office Employee Dies From COVID-19, DAILY MEMPHIAN (Apr. 21, 2020) https://dailymemphian.com/article/13185/sheriffs-office-employee-dies-from-covid-19.
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another. Each cell also has an open toilet area and a sink that is shared by both cellmates. Showers are in the communal area of the pod and are shared by all members of the pod.
30. During mealtime, detainees are required to line up inches apart from each other to receive their meal trays from other detainees who distribute meals as part of their work duties. Detainees then sit four men to a table—sometimes squeezing in five or six men if there is not enough available seating—to eat their meal. It is not possible to socially distance in the communal area. People detained in the Jail were provided one mask on or around April 22, 2020. Most of those who received the masks have not been able to receive replacements. Detainees use the same metal utensils and cup for each meal and are responsible for maintaining their own utensils and cups. They do not have access to a dishwasher or bleach for cleaning their utensils.
31. Class members must also use, and reuse, the same “high-touch” items, such as telephones and kiosks, and the Jail does not provide disinfectant or other cleaning supplies to sanitize these items. The Jail gives Class members a clean change of clothes only once a week. Class members must purchase soap from commissary, and if they cannot afford commissary soap they must wait several days to get free soap. The soap available for free is small, and only lasts three or four days. Class members are only rarely able to clean their cells, relying on staff to offer cleaning supplies. Even when cleaning spray is available, Class members must use unwashed towels to wipe down surfaces. There is no hand sanitizer available to any Class members.
32. The Jail does not test for COVID-19 upon the intake of new arrestees. If someone displays symptoms of COVID-19, he is still booked into the Jail but is escorted to an isolation pod. Because the Jail relies on reported symptoms to decide whom to quarantine, there is no system for
12

Case 2:20-cv-02359 Document 1 Filed 05/20/20 Page 13 of 26 PageID 13
preventing spread of COVID-19 among asymptomatic people, even though many infected with COVID-19 may be asymptomatic while still capable of infecting others.31
33. On April 29, 2020, staff at the Jail pepper-sprayed detainees in medical isolation for COVID-19. This exacerbated the difficulty of breathing for many persons already experiencing symptoms including shortness of breath, nausea, vomiting, coughing up blood, fevers, and chills.
34. On May 19, 2020, staff at the Jail forced detainees who had been in quarantine for having contracted or been exposed to COVID-19 back into the general population. Those being moved from medical isolation were not retested for COVID-19 prior to being moved, nor were they screened for symptoms of COVID-19. Many detainees resisted the move because it put other people in the Jail at risk of increased exposure to the virus: as one person in quarantined housing put it, “All we are looking for is to be re-tested before we are re-classified and rehoused. . . [I feel] a moral obligation” not to pass the virus to anyone else.32 Jail staff pepper sprayed those individuals who refused to move out of quarantine.
D. Respondent-Defendants Have Discriminated against the Members of the Subclass in Violation of the ADA and the Rehabilitation Act. 35. Respondent-Defendants’ actions violate not only Class members’ constitutional
rights, but also the Subclass members’ rights under disability rights laws. The Jail has failed, and continues to fail, to make reasonable modifications to detention to ensure that people with disabilities have an equal opportunity to participate in the adjudication of their criminal cases and to access jail services. For example, the Jail has failed to make modifications to ensure that
31 See Furukawa, supra note 14. 32 Yolanda Jones, Inmates at 201 Poplar pepper-sprayed over move after COVID quarantine,
DAILY MEMPHIAN (May 19, 2020) https://dailymemphian.com/article/14169/covid-19-201poplar-anthony-buckner-shelby-county-sheriffs-office.
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Case 2:20-cv-02359 Document 1 Filed 05/20/20 Page 14 of 26 PageID 14
members of the Subclass can practice adequate social distancing, and has failed to implement a system for release as a modification to ensure Subclass members are alive to participate in the adjudication of their cases.
36. By continuing to detain Plaintiffs with disabilities, Defendants’ policies and practices violate the ADA and the Rehabilitation Act.
37. Plaintiff Favian Busby has been diagnosed with diabetes and hypertension, for which he takes medication daily. He also recently had surgery to implant a new joint between his femur and hip, from which he is still recovering. These conditions put Mr. Busby at high risk of severe infection or death from COVID-19.
38. Four men in Mr. Busby’s pod tested positive for COVID-19 on April 24. It is not possible for Mr. Busby to socially distance in his pod. To use a phone or obtain medication, Mr. Busby must wait in crowded lines. Staff do not socially distance and often do not wear masks, and Mr. Busby has not seen them wash their hands or use hand sanitizer.
39. He has also seen other people in the pod with COVID-19 symptoms who have avoided testing for fear of being put in isolation. Staff also do not always follow quarantine procedures. Mr. Busby has seen people go into quarantine, return to the pod, exhibit symptoms again, and yet not be sent back into quarantine.
CLASS ACTION ALLEGATIONS 40. Plaintiffs bring this action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedures on behalf of themselves and a class of similarly situated individuals consisting of all pretrial detainees in the custody of the Jail who are medically vulnerable (the “Class”). 41. The Class is defined as follows: all current and future persons held at the Jail in pretrial custody during the coronavirus pandemic who are aged 55 and older, as well as all current and future persons held at the Jail of any age who have: (a) lung disease, including asthma, chronic
14

Case 2:20-cv-02359 Document 1 Filed 05/20/20 Page 15 of 26 PageID 15
obstructive pulmonary disease (e.g., bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) hypertension; (f) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (g) blood disorders (including sickle cell disease); (h) inherited metabolic disorders; (i) history of stroke; (j) neurological or developmental disability; (k) cancer or cancer treatments; (l) a BMI of 40 or more; and/or (m) muscular dystrophy or spinal cord injury.
42. Favian Busby also seeks to represent a subclass, consisting of all current and future pretrial detainees in custody at the Jail who are medically vulnerable because of a disability as defined in the ADA (the “Subclass”). The Subclass includes people with all conditions listed in paragraph 42, except those who are medically vulnerable solely because of age or BMI.
43. This action has been brought and may properly be maintained as a class action under federal law. It satisfies the numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
44. Joinder is impracticable because (1) the Classes are numerous; (2) the Classes include future members, and (3) the Class members are incarcerated, rendering their ability to institute individual lawsuits limited, particularly in light of reduced legal visitation and court closures in Shelby County.
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45. Numerosity: On information and belief, there are at least 300 people in the proposed Class and Subclass. First, there are currently over 200 people over 55 years old detained at the Jail.33 People in jails have higher rates of chronic health conditions than people in the general population. According to the Bureau of Justice Statistics, it is estimated that 39.8 percent of people in jail have a chronic health condition.34 Virtually all of these people will be members of the Class and Subclass. Further, as the below chart illustrates, health conditions that make COVID-19 particularly dangerous are more prevalent in the incarcerated population than in the general public.35
46. Specific information regarding the size of the Class and the Subclass, as well as the identity of the members of each group, is in Defendants’ exclusive control.
33 See Shelby Cty. Sherriff’s Office, Who’s In Jail, available at http://www.shelbysheriff.org/injail.html (last visited May 18, 2020).
34 See Laura M. Maruschack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, p. 21, U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics (Feb. 2015), available at https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf.
35 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://cutt.ly/7tJXmlC. 16

Case 2:20-cv-02359 Document 1 Filed 05/20/20 Page 17 of 26 PageID 17
47. Commonality: Common questions of law and fact exist as to all members of the proposed Class and Subclass, including: (a) whether Defendants are detaining the members of the Class in violation of their constitutional rights; (b) whether Defendants’ policies and practices discriminate against the members of the Subclass in violation of the ADA and the Rehabilitation Act; and (c) whether Defendants are implementing policies and procedures to ensure social distancing, and to provide adequate PPE, or otherwise following CDC guidance to protect Class members.
48. Typicality: The claims of the Named Plaintiffs are typical of those of the Class as a whole, including because (a) each Named Plaintiff is currently in Defendants’ custody and (b) the Named Plaintiffs’ and all of the Class members’ claims arise from the same wrongful acts, omissions, policies, and practices of Defendants, and are based on the same legal theories.
49. Adequacy: The Named Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. The Named Plaintiffs have no interests adverse to the interests of the proposed Class. The Named Plaintiffs retained pro bono counsel with experience and success in the prosecution of civil rights litigation. Counsel for the Named Plaintiffs know of no conflicts among proposed Class members or between counsel and proposed Class members.
50. Defendants have acted on grounds generally applicable to all proposed Class members. This action seeks declaratory and injunctive relief. Plaintiffs therefore seek Class certification under Rule 23(b)(2).
51. In the alternative, the requirements of Rule 23(b)(1) are satisfied because prosecuting separate actions would create a risk of inconsistent or varying adjudications with
17

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respect to individual Class members that would establish incompatible standards for the party opposing the proposed Class.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.
Constitution 28 U.S.C. § 2241 The Class Against All Defendants 52. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 53. Under the Fourteenth Amendment, persons in pretrial custody cannot be punished as part of their detention. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Punishment is established if the jailer’s conduct is either not rationally related to a legitimate, non-punitive government purpose or excessive in relation to that purpose. 54. Under general circumstances, Defendants can hold pretrial detainees if, after making individualized findings based on the person’s flight risk and danger to the community, and evaluating less restrictive options than jail, it is clear that nothing short of detention will mitigate a credible risk of flight or danger. But and as a condition of holding persons in pretrial custody, the Jail must provide them with health care services and a safe environment, and cannot punish them. Here, Defendants have exposed the Named Plaintiffs and the Class members to high risk of severe infection or death from COVID-19. Continuing to detain the Named Plaintiffs and the Class members is punitive, not rationally related to a legitimate purpose, and/or excessive in relation to any legitimate purpose. 55. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Shelby County, have violated the rights of the Named Plaintiffs and the Class members under the Fourteenth Amendment.
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SECOND CLAIM FOR RELIEF Unconstitutional Confinement in Violation of the Fourteenth Amendment to the U.S. Constitution
28 U.S.C. § 2241 The Class Against All Defendants 56. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 57. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty” to provide adequate medical care for detained persons). 58. Corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody, including risks of future harm to their health and safety. See Helling v. McKinney, 509 U.S. 25, 33–34 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . [i]t 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”). 59. Under the Fourteenth Amendment, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail to at least the same degree of persons in custody subsequent to a conviction, if not to a higher degree. Deliberate indifference to the serious risk COVID-19 poses to members of the Class violates this right. 60. Named Plaintiffs and the members of the Class are at high risk of severe infection from COVID-19. The Jail is rife with confirmed cases of COVID-19. Named Plaintiffs and Class members, because of their medical conditions and COVID-vulnerability, cannot be safe in the dorm-style facilities in which they are housed at the Jail. The only way to ensure their safety and
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protect their constitutional rights is through release. Defendants are aware of the risk to the safety of the Named Plaintiffs and the Class members, but they have not taken steps to release them. Defendants are therefore deliberately indifferent to the safety of the Named Plaintiffs and the Class members.
61. Accordingly, Defendants have violated the rights of the Named Plaintiffs and the Class members under the Fourteenth Amendment.
THIRD CLAIM FOR RELIEF Discrimination on the Basis of Disability in Violation of Title II of the ADA
42 U.S.C. § 12131, et seq./ 28 U.S.C. § 2241 The Subclass Against All Defendants
62. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein.
63. Title II of the ADA requires that public entities refrain from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12132. The regulations implementing Title II of the ADA require that public entities avoid policies, practices, criteria, or methods of administration that have the effect of excluding or discriminating against persons with disabilities in the entity’s programs, services, or activities. 28 C.F.R. § 35.130(a), (b)((3), (8). Further, a public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
64. Members of the Subclass are individuals with disabilities for purposes of the ADA. 42 U.S.C. § 12102. They are “qualified” for the programs, services, and activities being challenged herein. 42 U.S.C. § 12131(2).
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65. Defendants are violating Title II of the ADA by failing to make the reasonable modifications necessary to ensure equal access to adjudication, jail services, and release for people with disabilities who face high risk of severe infection or death from COVID-19. Defendants are further violating the ADA by employing methods of administration (including a policy of nonrelease even in the face of the dangers of COVID-19) that tend to discriminate against people with disabilities.
FOURTH CLAIM FOR RELIEF Discrimination on the Basis of Disability in Violation
of Section 504 of the Rehabilitation Act 29 U.S.C. § 794/28 U.S.C. § 2241
The Subclass Against All Defendants 66. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 67. Section 504 of the Rehabilitation Act states that “no qualified individual with disability in the United States . . . shall, solely by reason of [] disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The regulations implementing Section 504 of the Rehabilitation Act require that entities receiving federal financial assistance avoid unnecessary policies, practices, criteria, or methods of administration that have the effect of discriminating against persons with disabilities. 28 C.F.R. § 41.51(b)(3)(i). 68. Defendants receive “Federal financial assistance” within the meaning of 28 U.S.C. § 794(a). 69. Favian Busby is an individual with disabilities for the purposes of the Rehabilitation Act, 42 U.S.C. § 12012, 29 U.S.C. § 705(20)(B). He is “qualified” for the programs, services, and activities being challenged herein.
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70. Defendants are violating Section 504 of the Rehabilitation Act by failing to make the reasonable modifications necessary to ensure equal access to adjudication, jail services, and release for people with disabilities who are at high risk of severe infection or death from COVID19. Defendants are further violating the Rehabilitation Act by employing methods of administration (including a policy of non-release even in the face of the dangers of COVID-19) that tend to discriminate against people with disabilities.
REQUEST FOR RELIEF 71. The Named Plaintiffs and Class members respectfully request that the Court enter an Order: 1. certifying this Petition as a Class Action; 2. granting a temporary restraining order and/or writ of habeas corpus requiring
Defendants to release immediately all Named Plaintiffs; 3. granting a temporary restraining order and/or writ of habeas corpus requiring
Defendants to produce promptly a list of all other Class and Subclass members detained at the Jail: 4. granting a temporary restraining order and/or writ of habeas corpus and/or order an enlargement of custody for all members of the Class and Subclass incarcerated solely due to their inability to afford a financial condition of release, solely due to an alleged technical violation of probation or parole, or whose release Defendants do not object to; 5. granting a temporary restraining order, preliminary and permanent injunction, and/or writ of habeas corpus imposing a process—to be determined by the Court— to consider the habeas corpus release and/or enlargement of custody of all
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remaining Class and Subclass members not released pursuant to Paragraph 4 within

two weeks, considering:

i.

the deprivation of the petitioner’s federal rights posed by the COVID-19

outbreak (including the disability discrimination for Subclass members and

the necessity of providing modifications including release);

ii.

any competent evidence that the individual poses a serious risk of flight or

danger to others;

iii.

whether, by clear and convincing evidence, any present risk of flight of

danger outweighs the threat to the petitioner’s health and safety posed by

his exposure to COVID-19 in the Jail, after considering alternative

conditions to manage the risk(s) presented;

6. granting a preliminary injunction, permanent injunction, and/or writ of habeas

corpus requiring continued reporting as to the future members of the Class and

Subclass, and requiring Defendants to divert Class and Subclass members from

incarceration at the Shelby County Jail, including but not limited to by exercising

their authority under T.C.A. 40-7-120;

7. providing that, if immediate relief is not granted on the basis of this Petition alone,

then expedited review of the Petition pursuant to 28 U.S.C. § 2243, including oral

argument, via telephonic or videoconference if necessary;

8.

declaring that the Jail’s policies violate the Fourteenth Amendment right against

cruel and unusual punishment with respect to the Class;

9. declaring that the Jail’s policies violate the Fourteenth Amendment right to be free

from punishment prior to conviction with respect to the Class;

23

Case 2:20-cv-02359 Document 1 Filed 05/20/20 Page 24 of 26 PageID 24 10. declaring that the Jail’s policies violate the ADA and Rehabilitation Act with respect to the Subclass; 11. awarding Named Plaintiffs’ attorney fees and costs under 42 U.S.C. sec. 1988 and other applicable law; and Any further relief this Court deems appropriate.
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Case 2:20-cv-02359 Document 1 Filed 05/20/20 Page 25 of 26 PageID 25

Dated: May 20, 2020
Respectfully submitted,
/s/ Brice M. Timmons
Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Andrea Woods* Amreeta S. Mathai* American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org
Zoe Brennan-Krohn* American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris* American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

25

Case 2:20-cv-02359 Document 1 Filed 05/20/20 Page 26 of 26 PageID 26
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Jonathan M. Silberstein-Loeb* David Kimball-Stanley* Adrienne Lee* Avery Medjuck* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com jsilberstein-loeb@paulweiss.com dkimball-stanley@paulweiss.com alee@paulweiss.com amedjuck@paulweiss.com
Attorneys for Plaintiffs * Application for admission pro hac vice forthcoming
26

 
 Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 1 of 32 PageID 33

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______

PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs hereby move this Court, pursuant to Fed. R. Civ. P. 651 and 28 U.S.C. §§ 2241, 2243, for a Temporary Restraining Order:
1. Granting Plaintiffs’ petition for a writ of habeas corpus and directing their immediate release;
2. Directing Defendants to produce, within 12 (twelve) hours of the entry of the Order, a list of all other Class and Subclass members, as defined in paragraphs 41 and 42 of Plaintiffs’ Complaint, detained at the Jail, including their location, charge, and bond status;

1 See Fed. R. Civ. P. 81(a)(4), explaining that the Federal Rules of Civil Procedure “apply to proceedings for habeas corpus . . . to the extent that the practice proceedings [are] not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases.” As documented in the Certificate of Service filed herewith, Plaintiffs’ counsel provided notice of the relief sought in this Motion to Defendants in accordance with Federal Rule of Civil Procedure 65 and Local Rule 65.1.

Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 2 of 32 PageID 34
3. Directing Defendants to, within twenty-four (24 hours) of the entry of the Order, release and/or enlarge the custody pending full adjudication of the habeas petition of all members of the Class and Subclass who are incarcerated solely due to their inability to afford a financial condition of release, or solely due to an alleged technical violation of probation or parole;
4. Directing Defendants to, within twenty-four (24) hours of the entry of the Order, provide a list to the Court and to Counsel for Plaintiffs noting the basis for any objections to the release of the remaining Class and Subclass members. Such objections must be limited to evidence of a credible risk of pretrial flight or danger to others;
5. Directing Defendants to, within forty-eight (48) hours, release and/or enlarge the custody of any Class and Subclass members whose release Defendants do not note an objection to;
6. With respect to any and all remaining Class and Subclass members to whose release Defendants object, directing the parties to meet and confer within one or two business day(s) of Defendants’ submission to Plaintiffs of the list of objections.
Plaintiffs further request that the Court conduct a hearing, to consider and rule upon the relief requested in Plaintiff’s motion, considering:
a. the deprivation of the petitioner’s federal rights posed by the COVID-19 outbreak (including the disability discrimination for Subclass members and the necessity of providing modifications including release);
b. any competent evidence that the individual poses a serious risk of flight or danger to others;
2

Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 3 of 32 PageID 35 c. whether, by clear and convincing evidence, any presented risk of flight of danger outweighs the threat to the petitioner’s health and safety posed by his exposure to COVID-19 in the Jail, after considering alternative conditions to manage the risk(s) presented. The grounds for this motion are set forth in the Brief in Support of Plaintiffs’ Motion for
Temporary Restraining Order, filed herewith, and the accompanying Declarations in support. Dated: May 20, 2020 Respectfully submitted, /s/ Brice M. Timmons
3

Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 4 of 32 PageID 36

Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Andrea Woods* Amreeta S. Mathai* American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org
Zoe Brennan-Krohn* American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris* American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

4

Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 5 of 32 PageID 37
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Jonathan M. Silberstein-Loeb* David Kimball-Stanley* Adrienne Lee* Avery Medjuck* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com jsilberstein-loeb@paulweiss.com dkimball-stanley@paulweiss.com alee@paulweiss.com amedjuck@paulweiss.com
Attorneys for Plaintiffs * Application for admission forthcoming
5

Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 6 of 32 PageID 38

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______

BRIEF IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 7 of 32 PageID 39
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 FACTS .............................................................................................................................................3 I. Plaintiffs and the Class Members Are at High Risk of Severe Illness or Death
from COVID-19...................................................................................................................3 II. Medically Vulnerable Detained Persons Face an Imminent Risk of Substantial
Bodily Harm.........................................................................................................................5 III. Immediate Release Is the Only Way to Protect the Medically Vulnerable. ........................8 ARGUMENT .................................................................................................................................11 IV. Plaintiffs Are Likely to Succeed on the Merits of Their Claims. ......................................11
A. Plaintiffs’ Continued Detention, and that of the Class Members, Violates Their Constitutional Rights....................................................................................11
B. Defendants are Violating the ADA and Section 504 of the Rehabilitation Act by Failing to Make Modifications for Disabled Subclass Members. ..............15
V. Plaintiffs’ Risk of Exposure to COVID-19 Constitutes Irreparable Harm. .......................18 VI. The Balance of Equities and the Public Interest Favor Plaintiffs. .....................................18 CONCLUSION ..............................................................................................................................19
i

Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 8 of 32 PageID 40

TABLE OF AUTHORITIES

CASES

Page(s)

Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004) ...................................................................................................16

Amick v. Ohio Dep’t of Rehab. & Corr., 521 F. App’x. 354, 361 (6th Cir.2013) ....................................................................................13

Bell v. Wolfish, 441 U.S. 520 (1979).................................................................................................................12

City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239 (1983).................................................................................................................12

Connection Distrib. Co. v. Reno., 154 F.3d 281 (6th Cir. 1998) ...................................................................................................18

Dominguez v. Corr. Med. Servs., 555 F.3d 543 (1993).................................................................................................................14

In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985) .................................................................................................11

Farmer v. Brennan, 511 U.S. 825 (1994).................................................................................................................14

Fraihat v. U.S. Immigration & Customs Enforcement, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020) .........................................................................17

Helling v. McKinney, 509 U.S. 25 (1993).............................................................................................................12, 14

Hostettler v. College of Wooster, 895 F.3d 844 (6th Cir. 2018) ...................................................................................................19

J.H. v. Williamson Cty., 951 F.3d 709 (6th Cir. 2020) ...................................................................................................12

Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) .............................................................................................................13

Malam v. Adducci, No. 5:20-cv-10829 (E.D. Mich. Apr. 9, 2020) ..................................................................10, 15

Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350 (D. Conn. May 12, 2020) ............................10

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Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 9 of 32 PageID 41
Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984).....................................................................................................18
Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585 (6th Cir. 2003) ...................................................................................................18
Nken v. Holder, 566 U.S. 418 (2009).................................................................................................................18
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ...................................................................................................18
Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566 (6th Cir. 2002) ...................................................................................................18
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).................................................................................................................16
Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015) .........................................................................................16
Rhinehart v. Scutt, 509 F. App’x 510 (6th Cir. 2018) ............................................................................................18
Richko v. Wayne Cty., 819 F.3d 907 (6th Cir. 2016) .............................................................................................13, 14
Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018) ...................................................................................................13
Rouster v. Cty. of Saginaw, 749 F.3d 437 (6th Cir. 2014) ...................................................................................................14
Tennessee v. Lane, 541 U.S. 509 (2004)...........................................................................................................16, 17
Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020) ....................................4
Stack v. Boyle, 342 U.S. 1 (1951).....................................................................................................................12
Turner v. Stumbo, 701 F.2d 567 (6th Cir. 1983) ...................................................................................................12
United States v. Amarrah, No. 17-20464, 2020 WL 2220008 (E.D. Mich. May 7, 2020) ................................................10
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Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 10 of 32 PageID 42
United States v. Hansen, No. 17 CR 50062, 2020 WL 2219068 (N.D. Ill. May 7, 2020)...............................................10
United States v. Howard, No. 4:15-CR-00018-BR, 2020 WL 2200855 (E.D.N.C. May 6, 2020)...................................10
United States v. Salerno, 481 U.S. 739 (1987).................................................................................................................12
Wilborn ex rel. Wilborn v. Martin, 965 F. Supp. 2d 834 (M.D. Tenn. 2013)..................................................................................18
Wilson v. Williams, No. 4:20-cv-00794-JG (N.D. Ohio Apr. 22, 2020)..............................................................6, 10
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................11
STATUTES 29 U.S.C. § 794..............................................................................................................................15 42 U.S.C. § 12101 et seq................................................................................................................15 42 U.S.C. § 12102(1)(A)................................................................................................................16 42 U.S.C. § 12102(2) .....................................................................................................................17 42 U.S.C. § 12131(B) ....................................................................................................................15 42 U.S.C. § 12132..........................................................................................................................15 OTHER AUTHORITIES 28 C.F.R. § 35.102(a).....................................................................................................................16 28 C.F.R. § 35.130(a).....................................................................................................................16 28 C.F.R. § 35.130(b) ....................................................................................................................16 28 C.F.R. § 35.130(b)(3)(i)-(ii)................................................................................................16, 17 28 C.F.R. § 35.130(b)(7)................................................................................................................16 28 C.F.R. Pt. 35, App. B ................................................................................................................17
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INTRODUCTION Plaintiffs are persons detained pretrial who, because of their age, underlying medical
conditions, or disabilities are at high risk of severe illness or death from COVID-19, yet they are
being held at the Shelby County Jail (the “Jail”) in the midst of the greatest public health crisis of
a century, in violation of their constitutional and federal statutory rights. Plaintiffs’ constitutional
rights are being violated because, owing to their vulnerability, they cannot be housed safely at the
Jail. They cannot be housed safely at the Jail because it is impossible to practice social distancing,
which is compounded by inadequate testing for COVID-19 that precludes any approximation of
who among the Jail population is infectious, and because it is impossible to practice vigilant hygiene within the Jail. The Court should order their immediate release.1 Likewise, the Court
should order the release of all persons who are currently being or will in the future be held in the
Jail’s custody during the COVID-19 outbreak in Tennessee who are medically vulnerable (the “Class”)2 and individuals who are medically vulnerable because of disabilities (the “Subclass”).3
1 The term “release” refers to the discharge of detained individuals from the physical confines of the Shelby County Jail, not necessarily release from all forms of custody. Release options may include, but are not limited to: supervised release (including through the use of GPS or other forms of location monitoring), halfway house residential placement, transfer to a hospital or other facility, or diversion to alternative community and treatment programs. Indeed, Shelby County already maintains a Pretrial Services Department “offering alternatives to incarceration at every stage of the criminal justice system.” See Pretrial Services, SHELBY CTY. TENN., https://www.shelbycountytn.gov/250/Justice-Initiatives (last visited May 19, 2020); see also Declaration of Bill Powell (“Powell Decl.”) at ¶ 11.
2 The Class is defined as follows: all current and future persons held at the Jail in pretrial custody during the COVID-19 pandemic who are 55 and older, as well as all current and future persons held at the Jail during the COVID-19 pandemic of any age who, by virtue of their underlying medical conditions, are at high risk of severe infection or death from COVID-19.
3 The Subclass consists of all current and future pretrial detainees in the Jail who are medically vulnerable because of a disability as defined in the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. This includes everyone in the Class except those who are medically vulnerable solely because of age or a Body Mass Index (BMI) over 40.
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COVID-19 presents an immediate threat to Plaintiffs and to the Class members they represent and they are likely to suffer irreparable harm absent injunctive relief. The disease has already infiltrated the Jail and infected a large number of people, and it continues to spread rapidly among the incarcerated population and staff. On April 17, there were only five confirmed cases of COVID-19 among detained persons at the Jail. As of May 20, 2020, 151 individuals housed at the Jail and 66 employees have tested positive for COVID-19. At least one Shelby County Sheriff’s Office employee who contracted the virus has died. The disease is spreading through the Jail exponentially. Without intervention, Defendants’ failures will allow COVID-19 to continue to wreak havoc not only on the health of people incarcerated at the Shelby County Jail, but also that of Jail staff and members of the broader community.
Plaintiffs’ release, and that of the Class members, with adequate public health and safety measures, is in Defendants’ interest and the interest of the public generally. The Jail is not separate from the broader community, and the Jail’s failure to manage the COVID-19 threat will cause additional, preventable deaths in the community at large. A rapid, continued outbreak in the Shelby County Jail will have severe consequences for the people detained at the Jail and would drain the Memphis area of limited resources to fight the pandemic.
For these reasons, and for the reasons explained further below, the Court should grant Plaintiffs’ Motion.
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FACTS
I. Plaintiffs and the Class Members Are at High Risk of Severe Illness or Death from COVID-19.
The CDC has provided a non-exhaustive list of factors, including age and medical
conditions, that put people at high risk of severe illness or death from COVID-19.4 Plaintiffs and
the Class they seek to represent are all people at high risk of severe illness or death if they contract
COVID-19. In addition, the Jail population is more than 86 percent African American,5 and,
according to the CDC, African Americans are both statistically more likely to have the medical
conditions that increase the risk of complications or death from COVID-196 and 2.6 times more
likely to die from COVID-19 than white Americans.7
4 See Coronavirus Disease 2019 (COVID-19) People Who Are at Higher Risk for Severe Illness, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019ncov/hcp/underlying-conditions.html (last visited May 19, 2020); Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019—United States, February 12-March 28, 2020, CTRS. FOR DISEASE CONTROL & PREVENTION (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2.htm. According to the CDC, people of any age who have certain underlying medical conditions, including lung disease, heart disease, chronic liver or kidney disease (including dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorder (including sickle cell disease), stroke, severe obesity (as defined as a body mass index of 40 or higher), and moderate to severe asthma, are at elevated risk. See id.; Coronavirus Disease 2019 (COVID-19) Groups At Higher Risk For Severe Illness, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higherrisk.html (last visited May 19, 2020).
5 Shelby County, TN, MACARTHUR FOUNDATION, SAFETY + JUSTICE CHALLENGE, http://www.safetyandjusticechallenge.org/challenge-site/shelby-county/ (last visited May 20, 2020).
6 The rate of diabetes is 60 percent higher in black Americans than in white Americans. See Diabetes and African Americans, U.S. DEP’T OF HEALTH & HUMAN SERVS. OFFICE OF MINORITY HEALTH https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=18 (last visited May 19, 2020). The rate of hypertension is also 40 percent higher. See Heart Disease and African Americans, U.S. DEP’T OF HEALTH & HUMAN SERVS. OFFICE OF MINORITY HEALTH https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=19 (last visited May 19, 2020).
7 The Color of Coronavirus: COVID-19 Deaths by Races and Ethnicity in the U.S., APM RESEARCH LAB (May 12, 2020), https://www.apmresearchlab.org/covid/deaths-by-race.
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The risk of serious illness or death from COVID-19 also increases with age. CDC data reveals that rates of hospitalization for COVID-19 are approximately three times higher among people age 50-64 than for younger people.8 Hospitalization is “a marker of ‘serious harm.’” Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020). And, deaths among people hospitalized with COVID-19 are three times higher for people age 50-64 (9.8 percent of people hospitalized with COVID-19 died) compared to those age 18-49 (3.4 percent of people hospitalized with COVID-19 died).9 Health experts agree that detained persons age 50 or older are more likely to suffer serious complications from COVID-19, particularly because incarcerated patients tend to age faster than non-incarcerated persons.10 See Declaration of Dr. Joe Goldenson, M.D. (“Goldenson Decl.”) at ¶ 10; Declaration of Dr. Marie Griffin, M.D. (“Griffin Decl.”) at ¶ 5.11
Plaintiff Favian Busby is an African-American man who has been diagnosed with diabetes, for which he receives injections of insulin based on his blood sugar level, and hypertension, for which he takes medication daily. See First Declaration of Josh Spickler

8 See Shikha Garg et al., Hospitalization Rates and Characteristics of Patients Hospitalized with

Laboratory-Confirmed Coronavirus Disease 2019—COVID—NET, 14, States, March 1-30,

2020, CTRS. FOR DISEASE CONTROL & PREVENTION (Apr. 17, 2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6915e3.htm. 9 See Jeremy Gould et al., Characteristics and Clinical Outcomes of Adult Patients Hospitalized

with COVID-19—Georgia, March 2020, CTRS. FOR DISEASE CONTROL & PREVENTION (Apr.

29,

2020,

Updated

May

8,

2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6918e1.htm.

10 Brie Williams et al., Aging in Correctional Custody: Setting a Policy Agenda for Older

Prisoner Health Care, AM. J. PUB. HEALTH (Aug. 2012),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3464842/ (“many estimate that prisoners’

physiological age averages 10 to 15 years older than their chronological age”). 11 See Gould, supra note 9. The CDC’s recognition that “people 65 years and older” as a discrete,

high-risk group is an appropriate point to begin the risk analysis, but does not foreclose a lower

age cutoff in light of research and the specific health factors in jail, as discussed in Dr. Nina

Fefferman’s Declaration. See Declaration of Dr. Nina Fefferman (“Fefferman Decl.”) at ¶ 11.

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(“Spickler-Busby Decl.”) at ¶ 9. Diabetes alone places Mr. Busby squarely within the CDC’s high-risk category. See Griffin Decl. at ¶ 14. Mr. Busby also recently had surgery to implant a new joint between his femur and hip, from which he is still recovering. Spickler-Busby Decl. at ¶ 11. Mr. Busby is a person with a disability under the ADA and the Rehabilitation Act.
Plaintiff Michael Edgington is 60 year-old African-American man who, because of his age, is also high risk. See Second Declaration of Josh Spickler (“Spickler-Edgington Decl.”) at ¶ 4. II. Medically Vulnerable Detained Persons Face an Imminent Risk of Substantial
Bodily Harm. The danger of COVID-19 to Plaintiffs, and other medically vulnerable and disabled individuals, is especially acute at the Shelby County Jail. COVID-19 is transmitted by air and touch through aerosol droplets created when an infected person coughs, sneezes, or talks.12 As a result, “congregate environments,” such as jails, are particularly dangerous due to the ease with which COVID-19 spreads.13 See Griffin Decl. at ¶ 12. Seven out of the top ten COVID-19 clusters in the United States are connected to jails and prisons.14 Social distancing, defined as keeping at least six feet of distance from other people when outside the home and avoiding group gatherings,

12 See Social Distancing, CTRS. FOR DISEASE CONTROL & PREVENTION

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (last

visited May 19, 2020). 13 The CDC has specifically noted that that “[c]orrectional and detention facilities face challenges

in controlling the spread of infectious diseases because of crowded, shared environments and

potential introductions by staff members and new intakes.” Megan Wallace et al., COVID-19

in Correctional and Detention Facilities—United States, February–April 2020, CTRS. FOR

DISEASE

CONTROL

&

PREVENTION

(May

15,

2020),

https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm. The CDC has similarly observed

that long-term care facilities and nursing homes pose a particular risk because of “their

congregate nature” and the residents served. Preparing for COVID-19 in Nursing Homes,

CTRS. FOR DISEASE CONTROL & PREVENTION, https://cutt.ly/7tEEITH (last visited May 19,

2020).

14 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES (May 19, 2020),

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.

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and vigilant hygiene, including frequent washing of hands with soap and water, are the only known measures for preventing the virus’s spread.15 See Goldenson Decl. at ¶ 14. The CDC refers to
social distancing as the “cornerstone” of any effective strategy to combat the spread of COVID19 in correctional and detention facilities.16
At the Shelby County Jail, the dorm-like structure of the facility makes social distancing
impossible. About 40-42 men, including Mr. Busby, are housed in H pod, which consists of 32
cells, many of which currently hold 2 people. See Spickler-Busby Decl. at ¶ 13; Declaration of
Stella Yarbrough (“Yarbrough Decl.”) at ¶ 4. In L pod, where Mr. Edgington is housed, there are
23 mostly 2-person cells holding around 30-33 men. Spickler-Edgington Decl. at ¶ 7. Detained
individuals who share a cell sleep in beds only three or four feet apart. See Yarbrough Decl. at ¶¶
5, 46. When two individuals are in a cell together, they cannot stay six feet apart. See Spickler-
Edgington Decl. at ¶ 6; Yarbrough Decl. at ¶¶ 5, 46. Jail staff come in and out of multiple pods
during their shifts. See Spickler-Busby Decl. at ¶ 24. Detained individuals must congregate in
communal areas in close contact with each other when eating, showering, washing their clothes,
receiving medication, working, and moving from one part of the Jail to another. See Spickler-
Busby Decl. at ¶¶ 12, 25; Spickler-Edgington Decl. at ¶¶ 8-12, 14. People in the Jail often eat at
15 See Social Distancing, supra note 12; How to Protect Yourself & Others, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html (last visited May 19, 2020). The University of Tennessee Health Science Center similarly notes that “the only current advice is to avoid others who might be sick.” Expert Responses, UNIV. OF TENN. HEALTH SCI. CTR., https://uthsc.edu/coronavirus/expertresponses.php (last visited May 19, 2020); see also Wilson v. Williams, No. 4:20-cv-00794JG, ECF No. 85 (N.D. Ohio May 19, 2020) (“Distancing has been, and continues to be, the institution’s best hope for sparing medically-vulnerable inmates from the serious medical consequences, and potential death, associated with COVID-19”).
16 See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (last visited May 19, 2020).
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small circular tables with four to six other people. See Spickler-Busby Decl. at ¶ 16; SpicklerEdgington Decl. at ¶ 8; Yarbrough Decl. at ¶ 21. Using the phone kiosk requires a person to stand shoulder to shoulder with others. See Spickler-Busby Decl. at ¶ 17.
Insufficient hygiene supplies, services, and facilities exacerbate the risk associated with the impossibility of practicing social distancing. Jail staff do not consistently use masks or gloves. See Spickler-Busby Decl. at ¶¶ 15, 24; Spickler-Edgington Decl. at ¶ 10; Yarbrough Decl. at ¶¶ 32, 57. Detainees are given one mask at a time, and must continue to reuse the single mask for weeks at time. See Spickler-Busby Decl. at ¶ 23; Yarbrough Decl. at ¶¶ 30, 56. Some individuals have gloves but most do not. See Yarbrough Decl. at ¶¶ 31, 56. Class members must also use, and reuse, the same “high-touch” items, such as telephones, sinks, dining tables, and showers. Not all of these items are wiped or disinfected between individual uses. See Spickler-Busby Decl. at ¶ 17; Yarbrough Decl. at ¶ 11. The Jail provides cleaning supplies for detained individuals to clean their own cells through a pod officer, but if a pod officer is not stationed in the pod, individuals are not provided with cleaning supplies and cannot clean their cells. See Yarbrough Decl. at ¶ 9. There is no hand sanitizer. See Spickler-Busby Decl. at ¶ 22; Declaration of Michael Working (“Working Decl.”) at ¶ 18; Yarbrough Decl. at ¶¶ 17, 53. The Jail does not provide adequate supplies of soap, and detained individuals frequently run out and often go for several days without a replenished supply. See Spickler-Busby Decl. at ¶ 20; Yarbrough Decl. at ¶¶ 16, 52. People in the facility must use the congregate and high-touch areas to access food or use the bathroom even when there is no soap and surfaces have not been disinfected.
Further, due to inadequate testing and screening, neither Defendants nor anyone living or working in the Jail knows the full extent of who has the virus and who is infectious. The Jail does not test people when they arrive, nor does it regularly test staff, and new arrestees are generally
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housed in shared quarters for days before moving to the general population without knowing whether they are carriers of COVID-19. See Declaration of Josie Holland (“Holland Decl.”) at ¶ 5; Working Decl. at ¶ 22. On or about April 25, 2020, the Jail tested approximately 260 detained individuals for COVID-19.17 Out of this number, 155 individuals were reported to have tested positive for the virus.18 Several people in Mr. Busby’s pod tested positive and were moved into isolation on the sixth floor. See Spickler-Busby Decl. at ¶ 14; Yarbrough Decl. at ¶ 36. Prior to those positive tests, Mr. Busby reports that the men were frequently in close proximity to other people in detention, they did not have masks, and they shared common surfaces with everyone else in H pod. See Spickler-Busby Decl. at ¶ 14. None of the individuals who tested positive at the end of April displayed symptoms. See Yarbrough Decl. at ¶ 37. Some individuals refused to report their COVID-19 symptoms or be tested because they did not want to be moved into isolation. See Spickler-Busby Decl. at ¶ 26; Yarbrough Decl. at ¶ 39. On May 15, 2020, new testing numbers were released showing 151 pretrial detainees and 66 staff had tested positive.19 The Jail does not provide universal testing for COVID-19, although individuals continue to exhibit symptoms. See Working Decl. at ¶ 23; Yarbrough Decl. at ¶¶ 42, 44. III. Immediate Release Is the Only Way to Protect the Medically Vulnerable.
Because testing and screening for COVID-19 at the Jail is wholly inadequate, making it impossible to know who is likely to be infectious, the only way medically vulnerable people can avoid serious illness and death from COVID-19 is to mitigate the likelihood of contracting the
17 Nearly 200 Detainees and Employees at 201 Poplar Test Positive for COVID-19, WMCACTIONNEWS5 (Apr. 29, 2020), https://www.wmcactionnews5.com/2020/04/29/nearlydetainees-employees-poplar-test-positive-covid-/.
18 Id. 19 Yolanda Jones, West Tennessee Prisons, Shelby County Jail Hit Hard by Coronavirus, DAILY
MEMPHIAN (May 18, 2020), https://dailymemphian.com/article/14121/tennessee-departmentof-correction-shelby-county-jail-covid-19-testing-positive.
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disease by practicing social distancing and vigilant hygiene. Because these measures are
impossible at the Jail, only the immediate release of Plaintiffs and other medically vulnerable
detained persons will protect them from contracting COVID-19 and vindicate their constitutional
and statutory rights.
Numerous public health experts have strongly cautioned that people booked into and held
in jails are likely to face serious, even grave, harm due to the outbreak of COVID-19.20 Because
of the severity of the threat posed by COVID-19, and its potential to spread rapidly throughout a
correctional setting, public health experts recommend the prompt release from custody of people
most vulnerable to COVID-19.21 Release protects people with the greatest vulnerability to
COVID-19 from infection, and allows for greater risk mitigation for people held or working in a
jail and the broader community in which it is situated.22 Release of the most vulnerable people
20 See, e.g., Velesaca v. Decker, 20-cv-1803 (S.D.N.Y.) at Doc. No. 42 (March 16, 2020) (Declaration of Dr. Jaimie Meyer); Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, THE GUARDIAN (Mar. 13, 2020), https://cutt.ly/itRSDNH; Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, CONN. MIRROR (March 11, 2020), https://cutt.ly/BtRSxCF; Craig McCarthy & Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ N.Y. POST (Mar. 19, 2020), https://cutt.ly/ptRSnVo; Oluwadamilola T. Oladeru et al., What COVID19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, HEALTH AFFAIRS (Mar. 10, 2020), https://cutt.ly/QtRSYNA; Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, MOTHER JONES (Mar. 12, 2020), https://cutt.ly/jtRSPnk; Anne C. Spaulding, Coronavirus COVID-19 and the Correctional Jail, EMORY CTR. FOR THE HEALTH OF INCARCERATED PERS. (Mar. 9, 2020), https://cutt.ly/MyYYVc0; Marc F. Stern, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” WASHINGTON ASSOC. OF SHERIFFS & POLICE CHIEFS (Mar. 5, 2020), https://cutt.ly/8yYYHny.
21 See Goldenson Decl., at ¶¶ 39, 40 (noting that release is the “only viable course of action” for protecting medically vulnerable individuals at the Jail, and will “reduce[] the burden on the healthcare infrastructure” of the Jail and the broader community); Laura Hawks et al., COVID19 in Prisons and Jails in the United States, JAMA INTERN MED. (Apr. 28, 2020), https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2765271.
22 Eric Lofgren et al., The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19 (May 4, 2020), https://www.medrxiv.org/content/10.1101/2020.04.08.20058842v2.full.pdf.
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from custody also reduces the burden on the region’s healthcare infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. See Fefferman Decl. at ¶ 9. This is because a continued outbreak in the Jail will directly cause additional, preventable deaths in the community at large. See Fefferman Decl. at ¶ 12.
To vindicate constitutional rights of detainees and to promote public health in the face of the COVID-19 pandemic, federal and state courts across the country have ordered the release of medically vulnerable individuals from confinement. See, e.g., Wilson v. Williams, No. 4:20-cv00794-JG, ECF No. 22 (N.D. Ohio Apr. 22, 2020) (ordering removal of all medically vulnerable prisoners from a federal prison with a COVID-19 outbreak),23 Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350 (D. Conn. May 12, 2020) (ordering, inter alia, identification of medically vulnerable detainees, and their consideration for compassionate release or home confinement, implementing a process to make full and speedy use of home confinement, and requiring elimination of certain barriers to consideration for release or transfer).24 This includes decisions providing for the release of all medically vulnerable prisoners (or at least those not presenting special concerns of flight or dangerousness).
23 See also Wilson v. Williams, No. 4:20-cv-00794-JG, ECF No. 85 (N.D. Ohio May 19, 2020) (order enforcing preliminary relief, noting inter alia that evaluating only a small handful of the 837 medically vulnerable prisoners at the Elkton federal facility for transfer to home confinement, compassionate release, or other transfer did not comply with the district court’s order).
24 See also Malam v. Adducci, No. 5:20-cv-10829, ECF No. 22, 29 (E.D. Mich. Apr. 5 2020, Apr. 9, 2020) (opinion and order) (ordering release of two detainees in Michigan at high risk for serious illness due to their age and underlying health conditions); United States v. Amarrah, No. 17-20464, 2020 WL 2220008 (E.D. Mich. May 7, 2020); United States v. Hansen, No. 17 CR 50062, 2020 WL 2219068 (N.D. Ill. May 7, 2020); United States v. Howard, No. 4:15CR-00018-BR, 2020 WL 2200855 (E.D.N.C. May 6, 2020).
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ARGUMENT Plaintiffs meet the legal requirements for the Court to grant them a temporary restraining order. As explained below, (1) they are likely to succeed on the merits of their claims; (2) they are likely to suffer irreparable harm in the absence of relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Where plaintiffs demonstrate “irreparable harm which decidedly outweighs any potential harm to the defendant,” the “degree of likelihood of success required” is less, and a plaintiff need only raise “serious questions going to the merits.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). IV. Plaintiffs Are Likely to Succeed on the Merits of Their Claims. Plaintiffs are likely to establish that Defendants violated—and continue to violate— Plaintiffs’ constitutional and statutory rights by condemning them, in spite of their high vulnerability to COVID-19 complications and death, to confined, close quarters, where it is impossible for them to practice social distancing and maintain good hygiene. So long as Plaintiffs remain in the Jail, Defendants cannot adequately mitigate the risk of serious injury or death faced by Plaintiffs as a result of COVID-19. Under even the strictest view of Plaintiffs’ burden, this risk demonstrates a high likelihood of success on the merits. Accordingly, Plaintiffs’ continued detention violates their constitutional and federal rights. A. Plaintiffs’ Continued Detention, and That of the Class Members, Violates Their
Constitutional Rights. Because Plaintiffs are individuals who have not been convicted of any crime, their continued detention in the midst of the COVID-19 pandemic violates their Due Process right to be free from punishment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a detained person may not be punished prior to an adjudication of guilt in accordance with
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due process of law.”). Punishment is established if the jailer’s conduct is either not rationally related to a legitimate, non-punitive government purpose or is excessive in relation to that purpose. Id. at 561; see also J.H. v. Williamson Cty., 951 F.3d 709, 717 (6th Cir. 2020) (applying Bell test to pre-trial detained person’s conditions of confinement claim); Turner v. Stumbo, 701 F.2d 567, 572-73 (6th Cir. 1983) (same).
The Supreme Court has recognized only two legitimate government interests in pretrial detention: to prevent a credible risk of flight, see Stack v. Boyle, 342 U.S. 1, 8 (1951), and to prevent a credible, serious risk to public safety, see United States v. Salerno, 481 U.S. 739, 745 (1987). Even if Plaintiffs’ and proposed Class members’ pretrial detention were otherwise justified as the least restrictive way to mitigate a credible risk of flight or danger in normal times— which Plaintiffs do not concede to be the case—their confinement in a facility that puts their lives in danger is excessive in light of the government’s original interest in detention.
By continuing to detain Plaintiffs in an environment that exposes them to an unreasonable risk to their future health, Defendants also run afoul of substantive Due Process protections, which are at least as expansive as the protections of the Eighth Amendment against cruel and unusual punishment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (holding that the Due Process Clause protects pretrial detained persons to at least the same extent the Eighth Amendment protects convicted prisoners); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (recognizing an Eighth Amendment deliberate indifference claim based on unwanted exposure to a future health risk). While the Eighth Amendment analysis of deliberate indifference claims traditionally involves both an objective and subjective component, the Supreme Court has strongly indicated that pretrial detained persons need only show that defendants’ conduct was objectively unreasonable. See Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) (recognizing that the
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Supreme Court’s holding in Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015), which held
that the appropriate standard for a pretrial detained person’s excessive force claim is “solely an
objective one,” signaled a “shift in Fourteenth Amendment deliberate indifference jurisprudence
[that] calls into serious doubt whether [the plaintiff] need even show that the individual defendant-
officials were subjectively aware of her serious medical conditions and nonetheless wantonly
disregarded them”). The objective component of a deliberate indifference claim is satisfied by
showing that “absent reasonable precautions, an inmate is exposed to a substantial risk of serious
harm.” Richko v. Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (quoting Amick v. Ohio Dep’t of
Rehab. & Corr., 521 F. App’x. 354, 361 (6th Cir. 2013)).
The magnitude of the risk of death or severe illness from COVID-19 to Plaintiffs and other
medically vulnerable detained persons is immense, and Defendants are aware of it. The disease
has spread to the Jail and there are hundreds of confirmed infections. In April, over 70 percent of those tested at the Shelby County Jail tested positive for COVID-19.25 It is likely that other individuals who are asymptomatic and untested are transmitting the disease unwittingly to others.26
See Goldenson Decl. at ¶¶ 13, 36. Additionally, there have been several reported outbreaks of COVID-19 in correctional facilities throughout Tennessee.27 And, as of May 15, 2020, at least
25 See Yolanda Jones, More Than 70% Of Inmates, Jailers At 201 Poplar Tested Positive For COVID-19, DAILY MEMPHIAN (Apr. 29, 2020), https://dailymemphian.com/article/13488/201poplar-covid-testing-70-percent-positive.
26 Nathan W. Furukawa et al., Evidence Supporting Transmission of Severe Acute Respiratory Syndrome Coronavirus 2 While Presymptomatic or Asymptomatic, EMERGING INFECTIOUS DISEASES (May 4, 2020), https://doi.org/10.3201/eid2607.201595 (estimating that as many as half of all transmissions occur through an infected person with little to no symptoms).
27 Samantha Max, Investigation: How The Coronavirus Ran Rampant Through A Tennessee Prison, WPLN NEWS, NASHVILLE PUBLIC RADIO (May 11, 2020), https://wpln.org/post/ investigation-how-the-coronavirus-ran-rampant-through-a-tennessee-prison/; A State-by-State Look at Coronavirus in Prisons, THE MARSHALL PROJECT (last updated May 15, 2020), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-inprisons.
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2,574 people incarcerated in Tennessee state prisons have tested positive for COVID-19.28 The law does not require that Plaintiffs and the Class members actually be exposed before their rights are violated. Potential exposure to a future harm is sufficient to state a constitutional claim and support a finding of irreparable injury. Helling, 509 U.S. at 33 (finding that “a remedy for unsafe conditions need not await a tragic event”).
Although not required to do so, Plaintiffs can also demonstrate that Defendants have been, and continue to be, subjectively indifferent to the risk that COVID-19 poses to medically vulnerable detained persons. The subjective component of deliberate indifference is satisfied by showing that “(1) the official being sued subjectively perceived facts from which to infer a substantial risk to the prisoner, (2) the official did in fact draw the inference, and (3) the official then disregarded that risk.” Richko, 819 F.3d at 915-16 (quoting Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)). “Because government officials do not readily admit the subjective component of this test, it may be demonstrated in the usual ways, including inference from circumstantial evidence. . . . ” Id. at 916 (quoting Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009)). Additionally, “a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer v. Brennan, 511 U.S. at 825, 842 (1994).
It is plain that Defendants are aware of the risk to Plaintiffs and other medically vulnerable detained persons at high risk of severe illness or death from COVID-19, and their failure to implement precautions specific to medically vulnerable detained persons or to release them constitutes a blatant disregard of that risk. Defendants know there is an extremely high rate of infection among the Jail population. Defendants are aware of the age, medical histories, and
28 See THE MARSHALL PROJECT, supra note 27.
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current medical conditions of persons in the Jail. Defendants also know that older individuals and people with certain medical conditions are at high risk of severe infection or death from COVID19. They know that social distancing is the only way to prevent the spread of COVID-19 to medically vulnerable individuals in the Jail and that this measure is not possible in the Jail. Because the necessary measures to safeguard Plaintiffs’ health, and that of similarly situated medically vulnerable detained persons, cannot be implemented in the Jail, release is the only reasonable response to the deadly COVID-19 pandemic.29 See Malam v. Adducci, No. 5:20-cv10829, ECF No. 68, at 46-51 (E.D. Mich. May 12, 2020).
B. Defendants Are Violating the ADA and Section 504 of the Rehabilitation Act by Failing to Make Modifications for Disabled Subclass Members.
Plaintiffs are also likely to prevail on their claim that Defendants have denied Mr. Busby and the Subclass members the benefits of the services, programs, and/or activities of the Shelby County Jail by reason of their disabilities in violation of the ADA and Section 504 of the Rehabilitation Act. 42 U.S.C. § 12101 et seq., 29 U.S.C. § 794. Plaintiffs in the Subclass are people with disabilities protected under the ADA and Rehabilitation Act in addition to their constitutional protections. 42 U.S.C. § 12132 states that:
no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. The Jail is a public entity under federal disability rights laws. 42 U.S.C. § 12131(B) (“public entity” includes “any department, agency, special purpose district, or other instrumentality of a State or States or local government”); see also Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). The ADA “demands more of public entities than simply refraining
29 On March 19, 2020, Defendants were also asked by the former director of Shelby County Pretrial Services to pursue all available options to release vulnerable people from the jail in light of the threat posed by COVID-19. See Powell Decl. at ¶ 6, Ex. A.
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from intentionally discriminating against disabled individuals.” Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 910 (6th Cir. 2004). Put another way, public entities have an affirmative duty to accommodate disabled individuals. Id. at 910. This requires public entities to take affirmative steps to ensure that people with disabilities can participate in all of the entity’s programs, benefits, and services on an equal and equally safe basis as people without disabilities. 28 C.F.R. §§ 35.102(a), 35.130(a), (b); Pierce v. District of Columbia, 128 F. Supp. 3d 250, 266, 269 (D.D.C. 2015). A failure to make accommodations or modifications necessary to ensure that people with disabilities can participate equally is a type of disability discrimination. 28 C.F.R. § 35.130(b)(7); Tennessee v. Lane, 541 U.S. 509, 511 (2004) (noting that Congress recognized “that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion” or discrimination). The ADA also prohibits public entities from “utiliz[ing] criteria or methods of administration . . . [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability” or “[t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii). By continuing to detain Plaintiffs with disabilities, Defendants’ policies and practices violate the ADA; they have failed in their duty to make modifications so Plaintiffs can benefit on an equal basis from the services, programs, or activities to which they are entitled.
Mr. Busby and the members of the Subclass are individuals with disabilities. The ADA defines disability as an impairment that substantially limits “major life activities.” 42 U.S.C. § 12102(1)(A).30 They are “qualified” to participate in the Jail’s programs, services, and activities.
30 “Major life activities” include “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder,
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This means that people in the Jail are entitled to equal access to adjudication of their criminal cases, as well as adequate medical care and basic life necessities during incarceration.
Mr. Busby and other medically vulnerable people with disabilities detained at the Jail are facing exclusion and denial of equal participation in the Jail’s programs, services, and activities, including the adjudication of their criminal cases, because of the Jail’s violation of disability rights laws. Subclass members cannot benefit equally from the Jail’s medical care, or provision of food and other basic necessities—or even benefit equally in the Jail’s system of ensuring that people survive in good health to the adjudication of their cases—because of the high risks they face from COVID-19 and the Jail’s failure to make modifications to mitigate those risks. See 28 C.F.R. Pt. 35, App. B (“[T]itle II applies to anything a public entity does.”); Fraihat v. U.S. Immigration & Customs Enf’t, No. EDCV 19-1546 JGB (SHKx), 2020 WL 1932570, at *26 (C.D. Cal. Apr. 20, 2020) (disabled people in ICE detention entitled to reasonable accommodations in order to participate in the “programmatic ‘benefit’” of the removal process). Subclass members cannot access these services or any others if they are severely ill, unconscious, or dead. Placing Plaintiffs and Subclass members at an extreme risk of severe illness, injury, or death has “the same practical effect of exclusion,” Lane, 541 U.S. at 531, and has the “effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(i)-(ii). Given the fast-moving, lifethreatening nature of the COVID-19 pandemic, and its effect on the Subclass, immediate release is the only reasonable modification that can bring Defendants into compliance with the ADA and Section 504.
neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 42 U.S.C. § 12102(2).
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V. Plaintiffs’ Risk of Exposure to COVID-19 Constitutes Irreparable Harm. Plaintiffs have experienced, and continue to experience, irreparable injury in the form of
being subjected to substantial and unreasonable risk of harm from COVID-19, in violation of their Fourteenth Amendment rights. “When constitutional rights are threatened or impaired, irreparable injury is presumed.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 578 (6th Cir. 2002) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)); see also Rhinehart v. Scutt, 509 F. App’x 510, 514 (6th Cir. 2018) (suggesting that allegations of “continuing violation of . . . Eighth Amendment rights” would trigger a finding of irreparable harm). Because Plaintiffs are likely to succeed on the merits of their constitutional claims, which themselves stem from exposure to an unacceptable risk of serious illness or death, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984). Even so, Plaintiffs can show an additional and obvious risk of irreparable harm in the form of serious illness or death should they contract COVID-19 and be forced to cope with infection while housed in the Jail. VI. The Balance of Equities and the Public Interest Favor Plaintiffs.
When the government opposes the issuance of a temporary restraining order, the final two factors—the balance of the equities and the public interest—merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). The public has an interest in preserving Plaintiffs’ constitutional rights and in protecting public health. See Neinast v. Bd. of Trs. of the Columbus Metro. Library, 346 F.3d 585, 594 (6th Cir. 2003) (recognizing public health and safety as legitimate government interests). The public interest is also “served by the enforcement of the ADA.” Wilborn ex rel. Wilborn v. Martin, 965 F. Supp. 2d 834, 848 (M.D. Tenn. 2013). The public interest thus requires that a TRO be granted in order to effectuate the ADA’s broad “remedial purposes.” Hostettler v. College of Wooster, 895 F.3d 844, 853 (6th Cir. 2018).
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Significantly, releasing vulnerable individuals will reduce the burden on the local community and health infrastructure and release is clearly in the public interest. See Goldenson Decl. at ¶ 40; Fefferman Decl. at ¶¶ 8-9. Releasing vulnerable individuals also reduces the degree to which the Jail serves as a vector for further infections among others living and working at the Jail and the communities they return home to.31 Plaintiffs’ release, subject to appropriate public health and safety precautions, will also promote Defendants’ interest in ensuring the safety of others held at the Jail, as well as the staff there, and the community at large. See Goldenson Decl. at ¶ 41. In structuring their relief request, Plaintiffs have accounted for the prospect of public safety concerns and suggested a process by which any credible public safety risks may be addressed prior to release.32
CONCLUSION For the foregoing reasons, the Court should grant Plaintiffs’ Motion. Dated: May 20, 2020 Respectfully submitted, /s/ Brice M. Timmons
31 See Lofgren, supra note 22; Powell Decl. ¶ 17. 32 As noted further in the Declaration of Bill Powell, there exist a number of alternatives to
incarceration to mitigate any public safety risk posed by the release of any individual class member. Powell Decl. ¶¶ 11, 16.
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Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Andrea Woods* Amreeta S. Mathai* American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org
Zoe Brennan-Krohn* American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris* American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

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Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 31 of 32 PageID 63
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Jonathan M. Silberstein-Loeb* David Kimball-Stanley* Adrienne Lee* Avery Medjuck* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com jsilberstein-loeb@paulweiss.com dkimball-stanley@paulweiss.com alee@paulweiss.com amedjuck@paulweiss.com
Attorneys for Plaintiffs * Application for admission forthcoming
21

Case 2:20-cv-02359 Document 2 Filed 05/20/20 Page 32 of 32 PageID 64 CERTIFICATE OF SERVICE
I, Brice M. Timmons, certify that on May 20, 2020, I caused a true and correct copy of the foregoing document to be filed electronically via the ECF system. I also caused a true and correct copy of the foregoing document to be served by hand on the Defendants.
Respectfully submitted, /s/ Brice M. Timmons
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
P etitioners-P laintiffs ,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______

DECLARATION OF DR. NINA H. FEFFERMAN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER

Case 2:20-cv-02359 Document 2-1 Filed 05/20/20 Page 2 of 31 PageID 66
I, Nina Fefferman, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746:
1. I am over the age of 18 and I am competent to make this declaration. 2. I am a full Professor at the University of Tennessee, Knoxville in both the Department of Ecology and Evolutionary Biology and the Department of Mathematics. I am also the Director of the Mathematical Modeling Consulting Center at the National Institute for Mathematical and Biological Synthesis, and the Associate Director of the University of Tennessee One Health Initiative. My research focuses on complex adaptive systems, with a focus on the interplay between individual behavior and infectious disease epidemiology. Complex adaptive systems are systems that have a large number of components that interact and adapt such that the system is more complicated than its various parts— for example, living organisms, economies, or cities. 3. I have worked for the past 16 years as a researcher of the epidemiology, ecology, and evolution of infectious disease, pandemic preparedness, national biosecurity, and infrastructure protection. I hold a Master’s degree in mathematics from Rutgers University and a PhD in Biology from Tufts University. 4. For over a decade, I was one of the primary researchers of the Command, Control, and Interoperability Center for Advanced Data Analytics, a U.S. Department of Homeland Security (“DHS”) Center of Excellence, where I ran a research group focusing on the mathematics of both biosecurity and cybersecurity. As part of my role in that center, I actively contributed models and policy recommendations to DHS and its affiliate agencies for how to manage and mitigate pandemic threats from H1N1 2009 flu, Ebola in West Africa, and Zika virus. I have also consulted for various additional state and federal
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Case 2:20-cv-02359 Document 2-1 Filed 05/20/20 Page 3 of 31 PageID 67
agencies and private companies, domestically and abroad, in the area of outbreak management since 2004.
5. My C.V., attached as Exhibit A, includes a full list of my honors, experience, and publications.
6. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
7. I have not previously testified as an expert at trial or by deposition. I. Opinion 8. As an expert in infectious disease dynamics, it is my opinion that individua ls who can safely and appropriately remain in the community should not be brought into the Shelby County Jail system at this time. Individuals who are already in those facilities should be evaluated for release. A careful evaluation of procedural and housing guidance should be created for those who remain in jail facilities until at least such time as the epidemic in the broader community has been contained to the extent that the public recommendations relax all measures of social distancing. 9. These steps could substantially reduce the number of COVID-19 infections in both the jail and the surrounding community, and reduce the risk that the Shelby County healthcare system becomes overwhelmed. II. Risk of COVID-19 Within Jails and Wider Community 10. The health of persons in jail and the health of the rest of the community are inherently linked. The two populations must interact, because jails constantly release people into the wider community, admit new people from the wider community, and rely on staff and vendors who regularly mix with the wider community. Further, many jails
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rely on local hospitals to treat incarcerated persons requiring advanced medical care, adding to the burden on the limited resources of local healthcare systems.
11. The existence of jail-driven disease dynamics result in worse health outcomes for the entire population. Cases of infection occurring within a jail cause additional cases of infection, hospitalization and deaths in the wider community.1 This is not surprising; it reflects the features of the jail population and the jail system itself. The conditions of incarceration degrade the health of incarcerated people, leaving them more vulnerable to infection and severe outcomes from infection.2 As an epidemiological result of decreasing individual robustness to disease, the vulnerability of the whole jail population increases.
12. Jails with disease prevalence higher than the general populations they serve will therefore act as sources of infection. Jails will continue to re-seed infection into the wider community, undermining the wider community’s efforts to contain or mitigate outbreaks, or even introduce disease into non-infected communities. This cannot be resolved by ceasing release of people from jail, because a substantial number of staff and vendors regularly pass between the jails and the wider community.
1 Eric Lofgren, Kristian Lum, Aaron Horowitz, Brooke Madubuonwu, Nina Fefferman, The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19, MEDRXIV 2020.04.08.20058842, doi: https://doi.org/10.1101/2020.04.08.20058842 15–16 (May 4, 2020) (submitted for review).
2 David C. McClelland, Alexander Charles, and Emilie Marks, The need for power, stress, immune function, and illness among maleprisoners, 91 J. OF ABNORMAL PSYCH. 61, 68 (1982); Elizabeth T. Jacobs, and Charles J. Mullany, Vitamin D deficiency and inadequacy in a correctional population, 31 NUTRITION 659, 661-662 (2015); Fiona G. Kouyoumdjian, et al., Do peoplewho experienceincarceration age more quickly? Exploratory analyses using retrospectivecohort data on mortality from Ontario, 12 PLOS ONE 1, 7 (2017); U.S. DEPARTMENT OF JUSTICE, SPECIAL REPORT, Medical Problems of State and Federal Prisoners and Jail Inmates 2011–12 1 (Revised Oct. 4, 2016), available at https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf.
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13. Outbreaks of disease in jails are exacerbated by both the continuous introduction of potential new sources of infection (for example, as a result of new admissions or by staff) and by the maintenance of higher rates of contact amongst susceptible incarcerated people, due to the density and structure of jail housing arrangements. These dynamics drive the resulting efficacy of any proposed interventions.
14. The living conditions within the jail spread disease. Incarcerated people cannot practice social distancing due to the lack of space, overcrowding, or the requirement of constant supervision. Incarcerated people are moved in groups from jail to court or, where court proceedings are halted due to this pandemic, forced to remain in their cells or dorms in close proximity to each other. Incarcerated people often have limited access to products and equipment necessary to practice good personal hygiene, such as soap, or hand sanitizer or cleaning products.
15. There are strategies that can help to slow the spread of disease and improve individual health outcomes for people incarcerated within the jail system. For example, increased physical/social distancing measures; decreased population density; improved facility sanitation, access to free personal hygienic care, such as warm water, soap, free hand sanitizer, and free cleaning products; increased time spent outside; better nutrition and increased access to free medical care.
16. However, these improvements are unlikely to occur quickly enough or significantly enough to improve the epidemiological risks of COVID-19 for people living within the jail system or the wider community.
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17. Further, it is becoming increasingly important to deter every single case of
COVID-19 infection possible, including infected incarcerated people, so that the capacity
of the local healthcare system in Shelby County, including ICU beds, does not become
overwhelmed.
18. Tennessee’s Safer at Home order expired on April 30, 2020 and many
counties, including Shelby County, have commenced phased reopening of businesses. 3
Shelby County commenced Phase 1 of its “Back to Business plan” on May 4, 2020, which
included reopening offices, restaurants, hair salons and gym facilities.4
19. As social distancing mandates are lifted, it is reasonable to assume that
within weeks the number of COVID-19 cases in the Shelby County community will
increase substantially and that the number of serious COVID-19 cases requiring
hospitalization will also increase. It is estimated that Shelby County currently has up to
480 ICU beds5 for a population of over 937,166 people.6 As of May 13, 2020, more than
70% of those ICU beds were occupied.7 An increase in COVID-19 cases could quickly
overwhelm the limited capacity of the local healthcare system, even if the county
implements some strategies to increase surge capacity. By preventing the infection of
3 TENNESSEE OFFICE OF T HE GOVERNOR, Gov. Lee Announces Safer at Home Order Will Expire April 30, Tennessee Begins Phased Reopening Next Week (Apr. 20, 2020), https://www.tn.gov/governor/news/2020/4/20/gov--lee-announces-safer-at-home-order-will-expire-april-30-tennessee-begins-phased-reopening-next-week.html.
4 City of Memphis Mayor Jim Strickland, Grid for Sector-Specific Phasing (accessed May 16, 2020), https://backtobusiness.memphistn.gov/phases/.
5 Corinne S Kennedy, Samuel Hardiman and Ray Padilla, How is reopening going? These 4 graphs show trends ShelbyCountyofficials are watching, COMMERCIAL APPEAL (May 12, 2020), https://www.commercialappeal.com/story/news/health/2020/05/12/shelby-county-reopening-depends-datatrends-heres-what-data-shows/3099716001/ .
6 2020 U.S. CENSUS, QuickFacts Shelby County, Tennessee, July 1, 2019 Estimate, https://www.census.gov/quickfacts/shelbycountytennessee.
7 Corinne S Kennedy, Samuel Hardiman and Ray Padilla, How is reopening going? These 4 graphs show trends ShelbyCountyofficials are watching, COMMERCIAL APPEAL (May 12, 2020), https://www.commercialappeal.com/story/news/health/2020/05/12/shelby-county-reopening-depends-datatrends-heres-what-data-shows/3099716001/.
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incarcerated people and especially those most vulnerable to serious illness, and therefore preventing the resulting infections that follow in the wider community, valuable resources, including ICU beds, can be preserved.
III. Conclusion and Re comme ndations 20. It is my professional judgment, based on the work I have done on mitiga tion and containment strategies for infectious disease in humans, including COVID-19 and other diseases (such as Zika virus, Tuberculousis, Clostridium difficile (C. diff.), and Pandemic flu), that reducing the population of Shelby County Jail by increasing rates of return home for individuals currently incarcerated in the jail system, and decreasing admissions into the jail system, will substantially reduce the number of COVID-19 infections in the jail and the community the jail serves. Successful implementation of these strategies will also clearly yield a reduction in the source of risk to incarcerated people’s families and the broader community. 21. Corrections officials can increase the rate of release from jails by evaluating release options or transfer to home confinement for those most vulnerable to serious illness or death if they contract COVID-19. This should be coupled with a decreased rate of intake, since only increasing release rates can increase infection risks for incarcerated people, as well as the staff who work at the jails and court systems, and the broader community. 22. Decreasing population density achieves tremendous benefits. It decreases the probabilities of disease transmission and supports better health for incarcerated people , which also helps to protect the health of jail staff and the community at large. Decreasing population both directly decreases disease exposure, interrupting transmission dynamics,
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and also facilitates many other interventions. By reducing transmission, it also preserves the precious resources of local healthcare systems.
23. It is my professional opinion that these steps are both necessary and urgent. Each additional day the jail system continues under current operational standards will cost lives in both the incarcerated population and the broader community each jail serves.
24. The health of people in jails and prisons, whether incarcerated or employed within, is inextricably linked with community health. It is essential to protect the health of individuals who are detained in and work in these facilities, for their sake and the sake of the wider community.
I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

Nina H. Fefferman, PhD Name
The University of Tennessee, Knoxville 569 Dabney Hall, 1416 Circle Dr. Knoxville, TN 37996 Phone: 865-974-2913 Fax: 865-974-3067 E-mail: nina.h.fefferman@gmail.com

May 19, 2020 Knoxville, TN Date

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Exhibit A

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Nina H. Fefferman
http://feffermanlab.org

Nationality: United States of America Telephone: 781 710 5025 e-mail: nina.h.fefferman@gmail.com

Departments: Ecology and Evolutionary Biology & Mathematics
Address: 447 Hesler Biology Building University of Tennessee
Knoxville, TN 37996

Education

2005 2001 1999

PhD in Mathematical Biology from the Department of Biology, Tufts University. Advisor: J. Michael Reed
MS in Mathematics from the Department of Mathematics, Rutgers University. Advisor: J. Beck
AB in Mathematics from Princeton University

Positions

202020182018 2016 - 2018 2015 - 2016 2012 - 2016 2011 - 2016 2008 - 2012 2007 - 2016 2005 - present 2005 - 2007 2005

Associate Director, UT One Health Initiative, University of Tennessee, Knoxville Director, Mathematical Modeling Consulting Center, University of Tennessee,
Knoxville Professor, Depts. of Mathematics & Ecology and Evolutionary Biology, University
of Tennessee, Knoxville Associate Professor, Depts. of Mathematics & Ecology and Evolutionary Biology,
University of Tennessee, Knoxville Program Director, Graduate Program in Ecology and Evolution, Rutgers University Associate Professor, Dept. of Ecology, Evolution, and Natural Resources, Rutgers
University Assistant/Associate Professor, School of Public Health, University of Medicine and
Dentistry of New Jersey Assistant Professor, Dept. of Ecology, Evolution, and Natural Resources, Rutgers
University Research Assistant/Associate Professor, The Center for Discrete Mathematics and
Theoretical Computer Science, Rutgers University Co-Director, Tufts University Initiative for the Forecasting and Modeling of
Infectious Disease (InForMID), Tufts University School of Medicine Visiting Research Associate, Center for Discrete Math and Theoretical Computer
Science (DIMACS), Rutgers University Short Term Visitor, School of Natural Sciences, Institute for Advanced Study

Honors/Awards

2019 2019
2017 2016 2015 2012

Invited Participant of the 11th.Triennial Invitational Choice Symposium Invited Performer/Participant, Stand Up Science – a public performance featuring stand-up comics and scientists discussing their work Invited Research Team Leader: AWM Women in Mathematical Biology Workshop Invited Speaker at the National Academy of Sciences Sackler Colloquium Coauthored an article chosen for the cover of Phil Trans Roy Soc B (issue 370.1665) Invited to Health Foo 2012

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2011
2010 2009 2007 -

Shared the Virginia Governor's Technology Award in the category of ‘Cross-Boundary Collaboration in Modeling & Simulation’ for our study ‘Strategic Default in the Context of a Social Network: An Epidemiological Approach’. Speaker at TEDx Midatlantic Rutgers University Packard Fellow Nominee Coauthored an article chosen for the cover of The Lancet Infectious Diseases (vol. 7) Invited to give 22 Keynote, Plenary, or Public Lectures (see Invited Talks for details), over
three continents

Media Coverage (interviews and coverage):
Television/Online Video Broadcasts: The Washington Post, 2020 BBC International, 2020 WBIR News, 2019 NJTV News, 2015 Discovery Channel “How Stuff Works” (Season 2: “Games Unboxed”), 2011 BBC World News Aug 21, 2007 CBS News Aug 22, 2007 Canada Television (CTV) Aug 21, 2007 AT&T Tech Channel Sept, 2007
Radio Broadcasts: NPR Marketplace, Mar 2020 NPR WUOT Knoxville, Mar 2017 PRI Studio 360, Sept 2016 New Tech City, WNYC, Oct 2014 PRI Studio 360, Sept 2014 PRI Studio 360, Jan 2013 BBC UK News, Aug 2007 National Public Radio Podcast “Science Friday”, Sept 2007 AM900 CHML, Sept 2007 National Public Radio “All Things Considered”, Oct 2005
Print/Online Media (2005-present): ABC News, ABS CBN News, ARS Technical, Canadian Press (via CBC), Cell, The Daily Mail (UK), The Daily Telegraph (Australia), The Economist, Forbes, Fox News, G1.com.br (Brazil), The Gist (Slate.com), O Globo (Brazil), Gazet Van Antwerpen (Belgium), La Jornada (Mexico), KevinMD, Knox News, Medical News Today, New Scientist, NU.nl (Netherlands), PC Gamer, Reuters, TIME, The Washington Post, Science News, Slate.com, the South African Star, Tech News World, Wired, Yahoo! Entertainment, You Made I and many more…

Research Support

Active 2020-2021

$198,932

2020-2022 $359,849

2017-2022 $138,964

NSF RAPID – DEB Coupled Social and Epidemiological Networks and COVID-19
DoD Minerva DECUR - The Topology of Interdependent Multi-Domain Behavioral Systems
NSF IOS - Melding Mathematical and Theoretical

PI PI UT-PI

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2017-2021
Completed 2018-2020
2016-2019 2018-2019 2016-2018 2016-2018 2015-2018 2015-2017
2016-2017 2017 2016-2017 2015-2017
2012-2016 2014-2016
2009-2016 2011-2014
2011-2012 2010-2012
2010-2011
2010 2009-2012 2009-2011 2009-2010
2008 2008 2008
2007 2007 2006 2003-2004 2003-2004 2003 2003

$2,498,876
$196,628
$99,938 $2,000 $50,000 $190,000 $292,804 $21,003
$75,000 $30,000 $100,000 $130,000
$1,228,053 $100,000
$275,000 $3,853,332
$22,500 $384,000
$99,944
$22,500 $299,886 $89,318 $10,000
$99,990 $5,000 $75,000
$22,500 $22,500 $5,000 $42,000 $1,500
$500 $1,500

Models of Stress NSF EEID – Co-evolutionary Epidemiology of Avian
Malaria

UT-PI

SESYNC/NIMBioS Modeling Risk Perception, Vectorborne Diseases, and Environmental Integrity
NSF EAGER – CISE – Distributed Anomaly Detection Haines Morris Grant – Internal UTK Competition US - Israel Binational Science Foundation (BSF) NSF RAPID – DEB – Modeling Zika Virus Control USFWS – White-Nose Syndrome Open Grant NSF RAPID – Information & Intelligent Systems –
Virtual Worlds and Experiential Learning US START Center – Leadership in Social Networks Syngenta – Workshop Grant – Math of Agribusiness National Academies Keck Futures Initiative NSF EAGER – DEB – Machine Learning for Co-
Evolutionary Systems Dept. of Homeland Security – CyberSecurity Dept. of Homeland Security – Next Generation
Communications and Interoperability Dept. of Homeland Security – BioSecurity NSF EASM – Ocean Sciences – SocioEconomic Systems
and Climate Change UCDPER – Emergency Preparedness Dept. of Homeland Security – Virtual Worlds and
Experiential Education Dept. of Homeland Security – Self-Organizing
Surveillance Systems Dept. of Homeland Security – BioSecurity NSF – DEB – ULTRA-Ex UCDPER – Emergency Preparedness USDA CSREES Multi-State Research Fund – Vector-
borne Disease Control NIH NAID SBIR – Epidemiological Surveillance Rutgers Climate and Environmental Change Initiative Rutgers Academic Excellence Fellowship, Climate and
Health Research Initiative Dept. of Homeland Security – BioSecurity Dept. of Homeland Security – BioSecurity Tufts Summer Scholars Award – Epidemiology NIH R01 Supplement - Epidemiology Tufts Institute of the Environment MASI Student Travel Award TIES Student Travel Award

PI
PI Co-PI Co-PI PI Co-PI PI
PI Co-I Co-PI Co-PI
PI Project PI
Project PI Co-PI
Co-PI Project PI
Project PI
Co-PI Co-PI PI Co-I
PI PI Co-I
PI PI PI Co-PI Co-I PI PI

Consultancies

2020

American Civil Liberties Union (ACLU)

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2020 2018 2017-present 2009-present 2011-2012 2006-2007 2004-2009 2004 2004

The State of Vermont, Department of Education Ogilvy Humane Society International US Centers for Disease Control Research Institute for Housing America Trust Fund New Jersey, Department of Corrections NIH U19 (Center PI: Gorski) T-cell Mediated Immunity National Defense University DARPA

Participation in Research Centers

Center NIMBioS (National Institute for Mathematical and Biological Synthesis)

Position Leadership Team

Description of Role Active participant in working group, organizer of multiple tutorials, mentor for summer research experience for undergraduates, and founding director of the Mathematical Modeling Consulting Center

InForMID (Tufts University Initiative for the Forecasting and Modeling of Infectious Diseases)

Center Co-Director

Researcher and Administrative lead in the area of mathematical modeling of infectious disease epidemiology

CCICADA (US Dept of Homeland Security Command, Control, and Interoperability Center for Advanced Data Analysis)

Project PI

Principle Investigator into data analysis relating to social behavior in virtual/technologically enable environments, bio-security, and bio-inspired algorithms in cyber-security

DIMACS (The Center for Discrete Mathematics and Theoretical Computer Science)

Member

Active participant in working groups, collaborations, and conferences (including acting as organizer for multiple workshops/conferences/tutorials) in all areas of mathematical macrobiology

START (US Dept of Homeland Security Center for the Study of Terrorism and Responses to Terrorism)

Project PI

Principle Investigator working on understanding social behavior and algorithms driving the emergence of extremism and leadership in

Publications (peer reviewed):
* = a student or post-doctoral researcher advised by Fefferman during the research effort reported
Journal Articles: Published or In Press
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68. Lemanski*, N., S. Schwab, D. Fonseca, and N.H. Fefferman. (In press) Coordination Among Neighbors Improves the Efficacy of the Zika Control Despite Economic Costs. PLoS Neglected Tropical Diseases.
67. Wilson, S., S. Sindi, H. Brooks, M. Hohn, C. Price, A. Radunskaya, N. Williams, and N.H. Fefferman. 2020. How Emergent Social Patterns in Allogrooming Combat Parasitic Infections. Frontiers in Ecology and Evolution. 8:54.
66. DeNegre*, A., Myers*, K., and N.H. Fefferman. 2020. Impact of Strain Competition on Bacterial Resistance in Immunocompromised Populations. Antibiotics. 9(3):114
65. Myers*, K., A. Redere*, and N.H. Fefferman. 2020. How Resource Limitations and Household Economics May Compromise Efforts to Safeguard Children During Outbreaks. BMC Public Health. 20(1):1-14.
64. Suarez*, G., O. Udiani*, B. Allan, C. Price, S. Ryan, E. Lofgren, A. Coman, C. Stone*, L. Gallos*, and N.H. Fefferman. 2020. A Generic Arboviral Model Framework for Exploring Tradeoffs Between Vector Control and Environmental Concern. Journal of Theoretical Biology. 490 (2020) 110161.
63. DeNegre*, A., Myers*, K., and N.H. Fefferman. 2020. Impact of Chemoprophylaxis Policy for AIDS-immunocompromised Patients on Emergence of Bacterial Resistance. PLoS One. 15(1): e0225861.
62. Gallos*, L., S. Havlin, G. Stanley, and N.H. Fefferman. 2019. Propinquity drives the emergence of network structure and density. Proceedings of the National Academy of Sciences. 116(41):20360-20365.
61. Stone*, C., S. Schwab*, D. Fonseca, and N.H. Fefferman. 2019. Contrasting the Value of Targeted vs. Area-Wide Mosquito Control Scenarios to Limit Arbovirus Transmission for Different Tropical Urban Population Centers. PLoS Neglected Tropical Diseases. 13.7: e0007479.
60. Myers*, K, A. DeNegre*, L.K. Gallos*, N. Lemanski*, A. Mayberry, A. Redere*, S. Schwab*, O. Stringham, & N.H. Fefferman. 2019. Dynamic Ad Hoc Social Networks in Improvised Intelligence / Counter-Intelligence Exercises: A Department of Homeland Security Red-Team Blue-Team Live-Action Roleplay. Journal of Homeland Security and Emergency Management. https://doi.org/10.1515/jhsem-2018-0027.
59. Suarez*, G.P., L.K. Gallos, and N.H. Fefferman. 2019. A Case Study in Tailoring a Bio-Inspired Cyber-Security Algorithm: designing anomaly detection for multilayer networks. Journal of Cyber Security and Mobility. 8(1):113-132.
58. DeNegre*, A., K. Myers*, M. Ndeffo, and N.H. Fefferman. 2019. Emergence of Antibiotic Resistance in Immunocompromised Host Populations. PLoS One 14 (2), e0212969.
57. Schwab*, S., C. Stone*, D. Fonseca, and N.H. Fefferman. 2019. (Meta)population Dynamics Determine Effective Spatial Distributions of Mosquito-Borne Disease Control. Ecological Applications 29(3): e01856.
56. Kebir*, A., N.H. Fefferman, and S.B. Miled. 2018. A general structured model of a hermaphrodite population. Journal of Theoretical Biology. 449:53-59.
55. Lemanski*, N.J. and N.H. Fefferman. 2018. Expanding the evolutionary theory of aging: honeybees as a test case for an optimal decision making model of senescence. American Naturalist. 191(6):756-766.
54. Schwab*, S., C. Stone*, D. Fonseca, and N.H. Fefferman. 2018. The importance of being urgent: the impact of surveillance target and scale on mosquito-borne disease control. Epidemics. 23:5563.
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53. Beckage, B., L. Gross, S. Metcalf, E. Carr, K. Lacasse, J. Winter, P. Howe, N. Fefferman, A. Zia, and T. Franck. 2018. Integrating human behavior and risk perception into a climate model. Nature Climate Change. 8:79–84.
52. Maslo, B., O. Stringham, A. Bevan, A. Brumbaugh, C. Sanders, M. Hall, and N.H. Fefferman. 2017. High Survival of Some Infected Bat Populations Veils a Persistent Extinction Risk from White-nose Syndrome. Ecosphere. 8(12):e02001.10.1002/ecs2.2001.
51. Stone*, C.M., S.R. Schwab*, D.M. Fonseca, N.H. Fefferman. 2017. Human movement, cooperation, and the effectiveness of coordinated vector control strategies. Journal of the Royal Society Interface. 14(133):20170336.
50. Lemanski*, N.J. and N.H. Fefferman. 2017. Coordination Between the Sexes Constrains the Optimization of Reproductive Timing in Honey Bee Colonies Nature Scientific Reports. 7:2740.
49. Egizi, A., N.H. Fefferman, and R. Jordan. 2017. Relative Risk of Infection with Ehrlichiosis Agents and Lyme Disease in an Area Where Both Vectors are Sympatric. Emerging Infectious Diseases. 23(6):939-945.
48. Greenbaum*, G. and N.H. Fefferman. 2017. Application of network methods for understanding evolutionary dynamics in discrete habitat. Molecular Ecology. DOI: 10.1111/mec.14059
47. Maslo, B., R. Valentin, K Leu, K Kerwin, A Bevan, G.C. Hamilton, N.H. Fefferman, and D.M. Fonseca. 2017. ChiroSurveillance: The Use of Native Bats to Detect Invasive Agricultural Pests. PLoS One. 12(3), e0173321.
46. Robinson*, O.J., O.P. Jensen, M.M. Provost, S. Huang, N.H. Fefferman, A. Kebir and J.L. Lockwood. 2017. Evaluating the vulnerability of sex-changing fish to harvest: A game-theoretic approach. ICES Journal of Marine Science. 74(3):652-659.
45. Gallos*, L., M. Korczynski*, and N.H. Fefferman. 2017. Anomaly Detection Through Information Sharing Under Different Topologies. EURASIP Journal on Information Security. 2017:5. DOI:10.1186/s13635-017-0056-5.
44. Maslo, B., S. Gignoux-Wolfsohn, and N.H. Fefferman. 2017. Success of Wildlife Disease Treatment Depends on Host Immune Response. Frontiers in Ecology and Evolution. 5(28).
43. Lofgren*, E., A. Egizi, and N.H. Fefferman. 2016. Patients as Patches: Ecology and Epidemiology in Healthcare Environments. Infection Control and Hospital Epidemiology. 37(12):1507-1512.
42. Korczynski*, M., A. Hamieh*, J. H. Huh, H. Holm, S. R. Rajagopalan, and N. H. Fefferman. 2016. Hive Oversight for Network Intrusion Early Warning Using DIAMoND: A Bee-Inspired Method for Fully Distributed Cyber Defense. IEEE Communications Magazine 54(6):60-67.
41. Gallos*, L. and N.H. Fefferman. 2015. Simple and efficient self-healing strategy for damaged complex networks. Physical Reviews E. 92(5):052806.
40. Kebir*, A., N.H. Fefferman, S. Ben Miled. 2015. Understanding hermaphrodite species through game theory. Journal of Mathematical Biology. 71(6-7):1505-1524.
39. Gallos*, L., and N.H. Fefferman. 2015. The Effect of Disease-Induced Mortality on Structural Network Properties. PLoS One. DOI: 10.1371/journal.pone.0136704
37. Burkhalter*, J.C., N.H. Fefferman, and J.L. Lockwood. 2015. The impact of personality on the success of prospecting behavior in changing landscapes. Current Zoology. 61:557-568.
36. Robinson*, O., J. Lockwood, O. Stringham*, and N.H. Fefferman. 2015. A Novel Tool for Making Policy Recommendations Based on PVA:Helping Theory Become Practice. Conservation Letters. 8(3):190-198.
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35. Fefferman, N.H. and E.N. Naumova. 2015. Dangers of vaccine refusal near the herd immunity threshold: a modelling study. Lancet Infectious Diseases. S1473-3099(15)70130-1
34. Maslo, B. and N.H. Fefferman. 2015. A Case Study of Bats and White-Nose Syndrome Demonstrating How to Model Population Viability with Evolutionary Effects. Conservation Biology. 29(4):1176-1185. DOI: 10.1111/cobi.12485.
33. Parham, P E. J. Waldock, G.K. Christophides, D. Hemming, F. Agusto, K. J. Evans, N.H. Fefferman, H. Gaff, A. Gumel, S. LaDeau, S. Lenhart, R.E. Mickens, E. Naumova, R. Ostfeld, P. Ready, M. Thomas, J. Velasco-Hernandez, E. Michael. 2015. Climate, Environmental, and Socioeconomic Change – Weighing up the Balance in Vector-Borne Disease Transmission. Philosophical Transactions of the Royal Society B. 370.1665 (2015): 20130551.
32. Egizi, A., N.H. Fefferman, and D. M. Fonseca. 2015. Evidence that implicit assumptions of “no evolution” of disease vectors in changing environments can be violated on a rapid timescale. Philosophical Transactions of the Royal Society B. 370.1665 (2015): 20140136.
31. Greening*, B., N. Pinter-Wollman, and N.H. Fefferman. 2015. Higher-Order Analysis of Information Sharing and Knowledge Capacity in Animal Social Groups Current Zoology. 61(1): 114–127.
30. Gallos*, L. and N.H. Fefferman. 2014. Revealing effective classifiers through network comparison. Europhysics Letters. 108(3): 38001.
29. Lofgren*, E.T., R.W. Moehring, D.J. Anderson, D.J. Weber, and N.H. Fefferman. 2014. A Mathematical Model to Evaluate the Routine Use of Fecal Microbiota Transplantation to Prevent Incident and Recurrent Clostridium difficile Infection. Infection Control and Hospital Epidemiology. 35(1):18-27.
28. Greening*, B. and N.H. Fefferman. 2014. Evolutionary Significance of the Role of Family Units in a Broader Social System. Nature Scientific Reports. 4: 3608
27. Seiler, M.J., Collins, A.J., and N.H. Fefferman. 2013. Strategic Mortgage Default in the Context of a Social Network: An Epidemiological Approach. Journal of Real Estate Research 35(4).
26. Robinson*, O.J., N.H. Fefferman, and J.L. Lockwood. 2013. How to effectively manage invasive predators to protect their native prey. Biological Conservation 165: 146-153.
25. Fefferman, N.H., and L.M. Romero. 2013. Can physiological stress alter population persistence? A model with conservation implications. Conservation Physiology. 1(1): cot012. doi: 10.1093/conphys/cot012
24. Moorthy, M., D. Castronovo, A. Abraham, S. Bhattacharyya, S. Gradus, J. Gorski, Y.N. Naumov, N.H. Fefferman, and E.N. Naumova. 2012. Deviations in influenza seasonality: odd coincidence or obscure consequence? Clinical Microbiology and Infection. 18(10):955-962.
23. Hock*, K. and N.H. Fefferman. 2012. Social organization patterns can lower disease risk without associated disease avoidance or immunity. Ecological Complexity. 12:34–42.
22. Hock*, K. and N.H. Fefferman. 2011. Violating Social Norms when Choosing Friends: How Rule-Breakers Affect Social Networks. PLoS One. 2011; 6(10): e26652
21. Hock*, K. and N.H. Fefferman. 2011. Extending the role of social networks to study social organization and interaction structure of animal groups. Annales Zoologici Fennici. 48(6):365-370.
20. Kafai, Y.B. and N.H. Fefferman. 2010. Virtual Epidemics as Learning Laboratories in Virtual Worlds. Journal of Virtual Worlds Research. 3(2):2-15.
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19. Hock*, K., K.L. Ng, and N.H. Fefferman. 2010. Systems approach to studying animal sociality: individual position versus group organization in dynamic social network models. PLoS One. 5(12): e15789.
18. Fefferman, N.H. and E.N. Naumova. 2010. Innovation in Observation: A Vision for Early Outbreak Detection. Emerging Health Threats. 3:e6. doi: 10.3134/ehtj.10.006
17. Lofgren*, E.T., J.B. Wenger, N.H. Fefferman, D. Bina, S Gradus, S. Bhattacharyya, Y.N. Naumov, J. Gorski, E.N. Naumova. 2010. Disproportional Effects in Populations of Concern for Pandemic Influenza: Insights from Seasonal Epidemics in Wisconsin, 1967-2004. Influenza and Other Respiratory Diseases. 4:205-212.
16. Phan, L., N.H. Fefferman, D. Hui, and D. Brugge. 2010. Impact of Street Crime on Boston Chinatown. Local Environment. 15(5):481-491.
15. Reed, J.M., N.H. Fefferman, and R.C. Averil-Murray. 2009. Vital Rate Sensitivity Analysis and Management Implications for Desert Tortoise. Biological Conservation. 14(12): 2813-3222.
14. Wilson-Rich, N., Spivak, M., Fefferman, N.H., Starks, P.T. 2009. Genetic, Individual, and Group Facilitation of Disease Resistance in Insect Societies. Annual Reviews of Entomology. 54:405-23.
13. Fefferman. N.H. 2008. Biological Experimentation in silico. Annales Zoologici Fennici, 45: 367368.
12. Lofgren*, E., M. Senese*, J. Rogers* and N.H. Fefferman. 2008. Pandemic Preparedness Strategies for School Systems: Is Closure Really the Only Way? Annales Zoologici Fennici, 45: 449-458.
11. Fefferman, N.H. and K.L. Ng*. 2007. How Disease Models on Static Graphs Fail to Approximate Epidemics in Shifting Social Networks. Physical Review E. 76:031919. (This article was selected for reprinting by the Virtual Journal of Biological Physics Research 2007)
10. Lofgren*, E. and N.H. Fefferman. 2007. The Untapped Potential of Virtual Game Worlds to Shed Light on Real World Epidemics. The Lancet Infectious Diseases. 7:625–629. (article content was the cover of the journal)
9. Lofgren*, E., N.H. Fefferman, Y.N. Naumov, J. Gorski and E.N. Naumova. 2007. Influenza Seasonality: Underlying Causes and Modeling Theories. Journal of Virology, 81(11):5429-5436.
8. Lofgren*, E., N.H. Fefferman, M. Doshi and E.N. Naumova. 2007. Assessing Seasonal Variation in Multisource Surveillance Data: Annual Harmonic Regression. Lecture Notes in Computer Science. BioSurveillance 2007. eds D. Zeng et al. 4506:114-123.
7. Fefferman, N.H. and K.L Ng*. 2007. The role of individual choice in the evolution of social complexity. Annales Zoologici Fennici, 44:58-69.
6. Fefferman, N.H., J.F.A. Traniello, R.B. Rosengaus and D.V. Calleri. 2007. Disease Prevention and Resistance in Social Insects: Modeling the Survival Consequences of Immunity, Hygienic Behavior and Colony Organization. Behavioral Ecology and Sociobiology, 61:565-577.
5. Starks, P.T.B. and N.H. Fefferman. 2006. Polistes Nest Founding Behavior: a Model for the Selective Maintenance of Alternative Behavioral Phenotypes. Annales Zoologici Fennici, 43:456467.
4. Fefferman, N.H., and E.N. Naumova. 2006. Combinatorial Decomposition of an Outbreak Signature. Mathematical Biosciences, 202(2):269-287.
3. Fefferman, N.H. and J.M. Reed. 2006. A Vital Rate Sensitivity Analysis that is Valid for NonStable Age Distributions and for Short-Term Planning. The Journal of Wildlife Management, 70(3):649-656.
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2. Fefferman, N.H., and P.T.B. Starks. 2006. A Modeling Approach to Swarming in Honey Bees. Insectes Sociaux, 53(1):37-45.
1. Fefferman, N.H., E.A. O′Neil, and E.N. Naumova. 2005. Confidentiality vs Confidence: The aggravation of aggregation as a remedy in public health. Journal of Public Health Policy, 26(4):430-449.
Under Review: 10. Fefferman, N.H., E.T. Lofgren, N. Li, P. Blue, D.J. Weber, and A.A. Yakubu. Fear, Access, and
the Real-Time Estimation of Etiological Parameters for Outbreaks of Novel Pathogens. (Under Review) 9. Fefferman, N.H. and O. Udiani. Workforce Training, Deployment, Protection, and Management in the Wake of a Pandemic. (Under Review). 8. Lofgren, E. K. Lum, A. Horowitz, B. Madubuonwu, K. Myers, and N. H. Fefferman. The Epidemiological Implications of Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19. (Under Review). 7. Feinberg, F., A. Patania, B. McShane, B. Falk, D. Larremore, E. Feit, J. Helveston, M. Small, M. Braun, N. Fefferman, and E. Bruch. A Framework for Studying Choices in Networks. (Under Review) 6. Beckage, B., K. Lacasse, J.M. Winter, N.H. Fefferman, F.M. Hoffman, L.J. Gross, S.S. Metcalf, T. Franck, E. Carr, A. Zia, and A. Kinzig. The Earth has humans, so why don’t our climate models? (Under Review) 5. Udiani*, O., K. Lacasse, A. Zia, L. Gallos*, P. Zhong*, B. Beckage, E. Carr, T. Franck, L. Gross, F. Hoffman, P. Howe, A. Kinzig, S. Metcalf, J. Winter, and N.H. Fefferman. Recruitment and Mobilization for Social Movements: implications from network modeling. (Under Review) 4. Udiani*, O., and N.H. Fefferman. Could the Need for Rest Provide a Pathway for the Evolution of Division of Labor in Social Species? (Under Review) 3. Gignoux-Wolfsohn, S.A., Pinsky, M.L., Kerwin, K., Herzog, C., Hall, M., Bennett, A.B., Fefferman, N.H. and Maslo, B., Genomic signatures of evolutionary rescue in bats surviving white-nose syndrome. (Under Review) 2. Udiani*, O. and N.H. Fefferman. Has disease risk shaped the evolution of social complexity in insect societies? (Under Review) 1. Siewe*, N., B. Greening*, and N.H. Fefferman. The Potential Role of Asymptomatic Infection in Outbreaks of Emerging Pathogens (Under Review)
Book Chapters:
Published or In Press
10. Fefferman, N.H. When to Turn to Nature-Inspired Solutions for Cyber Systems. 2019. in NatureInspired Security and Resilience. eds. Eltoweissy, Elalfy, Fulp, and Mazurczyk. pp 29-50. The Institution of Engineering and Technology, London, UK.
9. Price, C.R. and N.H. Fefferman. 2019. A Preliminary Exploration of the Professional Support Networks the EDGE Program Creates. in A Celebration of the EDGE Program’s Impact on the Mathematics Community and Beyond (pp. 317-325). Springer, Cham.
8. Brooks. H.Z., M.E. Hohn, C. Price, A.E. Radunskaya, S.S. Sindi, N.D. Williams, S.N. Wilson, N.H. Fefferman. 2018. Mathematical Analysis of the Impact of Social Structure on Ectoparasite Load in Allogrooming Populations. in Understanding Complex Biological Systems with Mathematics eds. A. Radunskaya, R. Segal, B. Shtylla. Association for Women in Mathematics Series, vol 14. pp 47-61. Springer
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7. Williams, N.D., H.Z. Brooks, M.E. Hohn, C. R. Price, A.E. Radunskaya, S.S. Sindi, S.N. Wilson, and N. H. Fefferman. 2018. How Disease Risks Can Impact the Evolution of Social Behaviors and Emergent Population Organization. in Understanding Complex Biological Systems with Mathematics eds. A. Radunskaya, R. Segal, B. Shtylla. Association for Women in Mathematics Series, vol 14. pp 31-46. Springer
6. Korczynski*, M., A. Hamieh*, J.H. Huh, H. Holm, S. R. Rajagopalan, and N.H. Fefferman. 2017. DIAMoND: Distributed Intrusion/Anomaly Monitoring for Nonparametric Detection (invited extended version). in Security, Privacy and Reliability in Computer Communications and Networks. eds. K. Sha, A Striegel, and M Song. River Publishers Series in Communications. River Publishers.
5. Fefferman, N.H. and L.M. Fefferman. 2011. Mathematical Macrobiology: An Unexploited Opportunity in High School Education. in Biomath in the Schools. eds. M.B. Cozzens, and F.S. Roberts. DIMACS Series in Discrete Mathematics and Theoretical Computer Science. Vol 76. American Mathematical Society.
4. Jagai, J., N.H. Fefferman and E.N. Naumova. 2011. Waterborne Disease Surveillance. in Encyclopedia of Environmental Health. eds. J. Nriagu, S. Kcew, T. Kawamoto, J. Patz, and D. Rennie. Elsevier Science. 1st edition
3. Ji, S., W.A. Chaovalitwongse, N.H. Fefferman, W. Yoo, and J.E. Perez-Ortin. 2009. Mechanismbased Clustering of Genome-wide RNA Levels: Roles of Transcription and TranscriptDegradation Rates. in Clustering Challenges in Biological Networks. eds. S. Butenko, P.M. Pardalos, and W.A. Chaovalitwongse. World Scientific Publishing Company.
2. Fefferman, N.H. and J.F.A. Traniello. 2008. Social Insects as Models in Epidemiology: Establishing the Foundation for an Interdisciplinary Approach to Disease and Sociality. in Organization of Insect Societies: From Genome to Sociocomplexity eds J. Gadau and J. Fewell. Harvard University Press
1. MacLeod, N., N. Ortiz, N.H. Fefferman, W. Clyde, C. Schulter, and J. MacLean. 2000. Phenotypic Response of Foraminifera to episodes of global environmental change. in Biotic Response to Global Change. eds S.J. Culver and P. Rawson. Cambridge University Press
Edited Volumes:
1. Fefferman, N.H. (Ed.) (2008) Annales Zoologici Fennici 45(5)
Peer Reviewed Contributed Conference Papers:
8. Suarez*, G.P., L.K. Gallos, and N.H. Fefferman. 2018. A Case Study in Tailoring a Bio-Inspired Cyber-Security Algorithm: designing anomaly detection for multilayer networks. 2018 IEEE Security and Privacy Workshops (SPW). IEEE, 2018.
7. Fields, D. A., Kafai, Y. B., Giang, M. T., Fefferman, N., & Wong, J. 2017. Plagues and people: Mass community participation in a virtual epidemic within a tween online world. Proceedings of the 12th International Conference on the Foundations of Digital Games. DOI: 10.1145/3102071.3102108
6. Kafai, Y. B., Fields, D. A., Giang, M. T., Fefferman, N., Sun, J., Kunka, D., & Wong, J. 2017. Designing for massive engagement in a tween community: Participation, prevention, and philanthropy in a virtual epidemic. In Interaction Design & Children Conference. New York: ACM, 365-370. ISBN: 978-1-4503-4921-5
5. Fields, D. A., Kafai, Y. B., Giang, M. T., Fefferman, N., & Wong, J. 2017. The Dragon Swooping Cough: Mass community participation in a virtual epidemic within a tween online world. In B. Smith, M. Borge, E. Mercier & K. Y. Lim (Eds.) Proceedings of the 12th International Conference
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on Computer Supported Collaborative Learning, Volume 2 (pp. 865-866). Philadelphia, PA: International Society of the Learning Sciences. 4. Fields, D. A., Kafai, Y. B., Sun, J., Fefferman, N., Ellis, E., DeVane, B., Giang, M. T., & Wong, J. 2016. The great dragon swooping cough: Stories about learning designs in promoting participation and engagement with a virtual epidemic. In Barany, A., Slater, S., & C. Steinkuehler (Eds.), Proceedings of the Games + Learning + Society (GLS) 12.0 Conference (pp. 419-424). Pittsburgh, PA: ETC Press.
3. Verma, S., A. Hamieh*, J. H. Huh, H. Holm, S. R. Rajagopalan, M. Korczynski*, and N. H. Fefferman. 2016. Stopping Amplified DNS DDoS Attacks Through Query Rate Sharing Between DNS Resolvers, to appear in the International Conference on Availability, Reliability and Security (ARES). (Note: this is the proceeding of a conference, not a journal, but is equivalent to journal publication for the
field of computer science, however in keeping with the conventions of Biology, Fefferman is last author as PI on the sponsoring grant that funded the research.)
2. Korczynski*, M., A. Hamieh*, J.H. Huh, H. Holm, S. R. Rajagopalan, and N.H. Fefferman. 2015. DIAMoND: Distributed Intrusion/Anomaly Monitoring for Nonparametric Detection. CCCN 2015: 24th International Conference on Computer Communications and Networks, IEEE, 2015.
(Note: this is the proceeding of a conference, not a journal, but is equivalent to journal publication for the field of computer science, however in keeping with the conventions of Biology, Fefferman is last author as PI on the sponsoring grant that funded the research.)
1. Fefferman, N.H., J. Jagai, and E.N. Naumova. 2004. Two - Stage Wavelet Analysis Assessment of Dependencies in Time Series of Disease Incidence. Proceedings of the 2004 Conference of the International Environmetrics Society
Research Mentoring
(bold = current)
Undergraduate Researchers:
Shyretha Brown, Danika Chari, Kaige Chen, Ian Clark, Liz Davis, Anne Eaton, Taylor Eisenstein, Brandon Grandison, Derek Hansen, David Haycraft, John Huffman, Ana Kilgore, John Kim, Edward Lee, Somair Malik, Andrew McConvey, Jeffrey Mandell, Zain Paracha, Luke Postle, Lauren Prince, Asya Pritsker, Cathy Reis, Jeremiah Rogers, Bolanle Salaam, Nicole Scholtz, Margaret Senese, Joshua Smith, Andrew Sohn, Kim Stanek, Johanna Tam, Colleen Thiersch, Elena Tsvetkova, Barton Willage, Immanuel Williams, Nakeya Williams, Barry Walker, Hannah Yin, Yi Ming Yu, Yongqing Yuan, Stefanie Yuen, James Xue, Bobby Zandstra
Graduate Researchers:
(Committee Member, or Advisor for work on funded research projects – not primary dissertation advisor; * = special case)
Kevin Aagard, Emma Bell, Carissa Bleker, Curtis Burkhalter, Jordan Bush, Huilan Chang, Erick Chastain, Fnu Eric Ngang Che, Brittany Coppinger, Ashley Crump, Kathyrn Fair, Alison Golinski, Stephen Grady, Gili Greenbaum, Candice JeanLouis, Hwayoung Jung, Ariel Kruger, Di Li, Eric Lofgren*, Nicholas Lorusso, Adam Marszalek, Benjamin Mcclendon, Anthony Ogbuka, Paul Raff, Orin Robinson, Margaurete Romero, Rajat Roy, Liliana Salvador, Shelby Scott, Tinevimbo Shiri, Brittany Stephenson, Alex Thorn, Rafael Valentine, Alex Villiard, Orion Weldon
(primary research advisor to)
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Jessica Beck, Kelly Buch, Ashley DeNegre, Jeff DeSalu, Brad Greening, Natalie Lemanski, Agnesa Redere, Samantha Schwab, Anna Sisk (co-advised), Oliver Stringham, Karen Wylie
Post-Doctoral Researchers:
Dr. Erick Chastain, Dr. Lazaros Gallos, Dr. Manuel Garcia-Quisimondo, Dr. Ali Hamieh, Dr. Karlo Hock, Dr. Cindy Hui, Dr. Jing Jiao, Dr. Amira Kebir, Dr. Maciej Korczynski, Dr. Natalie Lemanski, Dr. Kellen Myers, Dr. Kah Loon Ng, Dr. Chris Stone, Dr. Nourridine Siewe (coadvised by Prof. S. Lenhart), Dr. Gonzalo Suarez, Dr. Oyita Udiani, Dr. Peng Zhong
Courses Developed and Taught (all courses developed from scratch)
• Advanced Mathematical Ecology II (MAT/EEB 682 – University of Tennessee, Knoxville) Spring 2017 and 2019
• Evolution, Disease, and Medicine (ENR110 – Rutgers University / EEB 310 – UT, Knoxville) Fall each year 2009 – 2014, Spring 2018 and 2020
• Conversational Bio-Mathematical Modeling (ENR 428 – Rutgers University/ EEB 475 – UT, Knoxville) Spring 2011 – 2014, 2020
• Problems in Ecology: Academic Pedagogy (ENR 601 – Rutgers University) Fall 2015 • (Co-Developed and Taught) Ethics & Professional Development in Ecology and Evolution (ENR
602 01 – Rutgers University) Spring 2013-2016 (exception – sabbatical Fall 2014-Spring 2015) • Introduction to Modeling Ecology, Evolution, and Epidemiology (ENR 604 – Rutgers
University) Spring each year 2010 – 2016 (exception – sabbatical Fall 2014-Spring 2015) • Introduction to Epidemiological Modeling (ENR 603 – Rutgers University) Fall each year 2009
– 2012 • Elements of Data Analysis and Epidemiology (CMPH 343 – Tufts University School of
Medicine) Spring 2006
Professional Memberships
Association for Women in Mathematics (AWM) Association for Women in Science (AWIS) Complex Systems Society (CSS) Institute of Electrical and Electronics Engineers (IEEE) International Union for the Study of Social Insects (IUSSI) Society for Industrial and Applied Mathematics (SIAM) Society for Mathematical Biology (SMB)
Invited Presentations
*upcoming
2020
Public Interview: “Nina Fefferman,” You Made it Weird podcast
Public Lecture: “The Role of Applied Math in Real-time Pandemic Response: How Basic Disease Models Work,” NIMBioS Webinar Series, Knoxville, TN
Public Interview: “Math + Virus + Us,” Here We Are podcast and YouTube video.
2019
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Public Lecture: “Vaccine Acceptance and Epidemic Risks,” Infinite Futures Event Series, Museum of Science and Industry, Chicago, IL.
“When to Turn to Biology for Inspiration in Systems Design,” DIMACS 30th Anniversary Conference, New Brunswick, NJ.
“Patients as patches: Ecological challenges from the epidemiology of healthcare environments,” ESA 2019, Louisville, KY.
“Math and Disease,” Possibilities in Postsecondary Education and Science (PIPES), UTK, Knoxville, TN.
Keynote Address: “Evolving Efficient Solutions: How simple natural systems solve the most complicated problems,” MBI Capstone Conference 2019, Columbus, OH (virtual)
Plenary Talk: “How AIDS prevalence impacts the emergence of antibiotic resistance in bacterial infections,” SIAM BAMM 2019, Richmond, VA.
Public Lecture: “Math and Disease,” Stand Up Science, Farragut, TN. “Biosurveillance and Homeland Security,” Princeton University, NJ. “Understanding Social Communication Systems with Homology Theory,” Complex Systems Seminar,
University of Michigan, Ann Arbor, MI. “Going Against the Grain,” Women Empowered in STEM (WeSTEM) 2019, Champaign, IL. “You’re Worth It: Job Negotiations,” Women Empowered in STEM (WeSTEM) 2019, Champaign, IL.
2018
“Math: A Critical, Treacherous Bridge Between Scientific Disciplines,” American Geophyiscal Union (AGU 2018), Washington DC.
“The Evolution of Social Complexity as Multi-Scale Feedback Control on Networks,” Systems Theory Lunch Colloquium, Harvard Medical School, Boston, MA.
“Saving Bats from Fungal Diseases with Linear Algebra,” Claremont Center for Mathematical Sciences Colloquium, Claremont, CA.
Plenary Talk: “Evolving Efficient Solutions: How simple natural systems solve the most complicated problems,” NIMBioS Undergraduate Research Conference 2018, Knoxville, TN.
Plenary Talk: “Linking Local Decisions with Global Outcomes in Networks: Case Studies in Behavior and Population Health” SIAM Life Sciences 2018, Minneapolis, MN.
“The mathematical biology of networks: from disease outbreaks to cyber-attacks,” TN Governor’s School, University of Tennessee, Knoxville, TN.
“Trans-disciplinary adventures in the mathematical biology of networks: from disease outbreaks to cyber attacks,” DIMACS REU, Rutgers University, Piscataway, NJ.
Public Webinar: “Social and Biological Networks: The Evolution of Social Systems,” US National Academies of Sciences, Engineering, and Medicine: Math Frontiers Webinar Series
2017
“Self-Diagnosing Networks,” Data Institute San Francisco Conference (DSCO17), San Francisco, CA. Keynote: “Evolving Efficient Solutions: How simple natural systems solve the most complicated
problems,” Workshop on Bio-Inspired Security, Trust Assurance, and Resilience (BioSTAR 2017), San Jose, CA. “Wildlife Disease Management Outcomes May Depend on the Mechanism of Host Immune Response,” Distinguished Lecture Series in Immunology and Infectious Diseases, Center for Emerging & Reemerging Infectious Diseases, School of Medicine, University of Washington, Pullman, WA.
2016
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“Evolving Healthy Populations,” International Symposium on Biomathematics and Ecology Education and Research 2016, Charlseton, SC.
“Individuals, Societies, and Climate: Modeling motivations to change,” Oak Ridge National Laboratory Workshop on Human Activity at Scale in Earth System Models, Oak Ridge, TN.
“Network Models in Epidemiology,” US-Canadian Institutes Epidemiology Summer School: Mathematical Modeling of Infectious Disease Spread, MBI, Columbus, OH.
“The Invasion Ecology of Diseases in a Human Environment,” Arthur M. Sackler Colloquia of the National Academy of Sciences, Coupled Human and Environmental Systems, Washington DC.
“Global Feedback Control on Centrality in Self-Organizing Systems”, Mathematical Biosciences Institute Workshop on the Control and Observability of Network Dynamics, MBI, Columbus, OH.
“Zika Control: More Complicated than Hoped?” Next Einstein Forum, Dakar, Senegal.
2015
“Linear Algebraic Tools in Conservation Ecology,” Simon A. Levin Mathematical, Computational and Modeling Sciences Center Seminar, Tempe, AZ.
“Applications of Homology Theory to Animal Communication Systems,” Mathematics and Statistics Colloquium, Arizona State Univ., Tempe, AZ.
“Trade-offs Between Collaboration and Infection Risk: Can ‘social distancing’ improve colony function?” Conference on Complex Systems 2015, Tempe, AZ.
“The Benefits of Ongoing Dynamics in Self-Organizing Social Systems,” Conference on Collective Dynamics and Evolving Networks, Bath, UK.
Plenary Talk: Exploiting the Complexity of Identity to Infiltrate Clandestine Groups – Lessons from a LARP, CyDentity Conference, CCICADA, New Brunswick, NJ.
“Incorporating Evolutionary Rescue into Population Viability Models,” Mathematics of Planet Earth: Workshop on Management of Natural Resources, Washington D.C.
“Distributed Detection Algorithms for Real-Time Maritime CyberSecurity,” Joint CCICADA & AMU Conference on Maritime CyberSecurity, New Brunswick, NJ.
“The Definition of Communication: One way biology and math people accidentally talk past each other and what we might be able to do to fix it,” Annual Meeting, Society for Integrative and Comparative Biology, West Palm Beach, FL.
2014
“BioInspired Anomaly Detection: Social Insects and Network Security,” Dept. of Homeland Security Science and Technology HSARPA CyberSecurity Division Research and Development Showcase and Technical Workshop, Washington D.C.
“n-TANGLE: a new method for comparing networks across scales” Workshop on Advances in Discrete Networks, Dept. of Mathematics, Univ. of Pittsburgh, Pittsburgh, PA.
Keynote Address: “Virtual Worlds Helping Public Health Preparedness,” New Jersey Health Care Quality Institute Annual Meeting, Trenton, NJ.
“A Mathematician’s Role in Fighting Ebola,” Saint Ann’s School, Brooklyn, NY. “Provable Boundaries on Disease Outbreaks in Self-Organizing Social Networks,” The Duke
University Mathematical Biology Colloquium, Durham, NC. Keynote Address: “Designing your own role: Women in STEM,” Tufts University Graduate Student
Luncheon for Women in Science, Medford, MA. “Division of Labor as an Adaptation to Combat Disease Risks?” The Seventh International Symposium
on Biomathematics and Ecology: Education and Research (BEER), Claremont, CA.
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“How dynamic networks affect disease transmission,” The BioCircuits Institute, UCSD, San Diego, CA.
“The Evolution of Social Complexity,” Plant Biology Dept. Seminar, Univ. of Vermont, Burlington, VT.
“Provable Boundaries on Disease Outbreaks in Self-Organizing Social Networks,” Math Dept. Seminar, Univ. of Tennessee at Knoxville, TN.
“Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” Math Dept. Junior Colloquium, Univ. of Tennessee at Knoxville, TN.
“The Life of a Mathematical Researcher,” Saint Ann’s School, Brooklyn, NY. “Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” Social Insect Research
Group Seminar, School of Life Sciences, Arizona State Univ., AZ. “N-tangle: A Network Comparison Method,” Workshop on Animal Social Networks, NIMBioS, TN 2013 “Evolutionary pressures, Infectious Diseases, and Self-Organizing Social Systems,” Evolutionary
Studies Seminar, Co-Sponsored by the Collective Dynamics of Complex Systems Research Group, the Undergraduate Math Club, Upsilon Pi Epsilon, and Pi Mu Epsilon, SUNY Binghamton, NY. “BioInspired Anomaly Detection,” DHS CyberSecurity PI Meeting, Arlington, VA. “Mathematics, Evolutionary Biology, Epidemiology, and National Security”, Saint Ann’s School, Brooklyn, NY. “Evolution of Reproductive Timing and Social Organization in Honey Bees,” Scientific Learning Forum at FMC, Ewing, NJ. “Crowd Sourcing WoW: A Case Study in Improving Pandemic Preparedness,” Annual George M. Sideris Biology Conference, LIU, Brooklyn, NY. 2012 Public Lecture: “Math, Complexity, and Social Groups: Using math to understand the nature of society,” Campus Life Enrichment Committee (CLEC) Lecture, Georgia Southern Univ., GA. “How and Why Static Approximations Can Fail to Give Adequate Insight into Processes on Dynamic Networks,” Math Dept. Colloquium, Georgia Southern Univ., GA. “Theoretical Worlds: An Exploration of Models and Model Systems,” Tufts Univ, Dept. of Civil and Environmental Engineering Seminar Series, Medford, MA. “Help, my avatar is sick!” Panel Talk, SXSW, Austin, TX. “WISE – Women, Ignore Silly Expectations!” 2012 WISE Conference, Texas A&M, TX. 2011 “The Evolution of Social Complexity,” CUNY Initiative for the Theoretical Sciences Workshop on A Unified Theory of Evolution, CUNY, NY. “Balancing Workforce Productivity Against Disease Risks for Environmental and Infectious Epidemics,” Math Dept. Seminar, Univ. of Ghana, Legon, Ghana. “Selective Pressures from Disease on Social Behavior in Hosts,” DIMACS/MBI US - African BioMathematics Initiative: Workshop on Genetics and Disease Control, Elmina, Ghana. Plenary Address: “The Future of Technology and Knowledge,” Next-Generation Communications Interoperability Workshop, Chicago, IL. “Virtual Worlds and Real Epidemics - Insights from WoW's Corrupted Blood Plague,” E-Virtuoses International Conference on Serious Games, Valenciennes, France.
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Plenary Address: “Disease Robustness and Evolutionary Selective Pressures on Social Organization in Eusocial Insects,” Mathematical Biosciences Institute Workshop on Insect Self-Organization and Swarming, Ohio State Univ., OH.
“Hakkar’s Corrupted Blood Plague: How an Outbreak in WoW is Helping Epidemiologists Create Better Disease Models,” Game Developer’s Conference 2011, San Francisco, CA
“Exploring the Role of Behavior in Infectious Disease Dynamics: Mathematical Insights from World of Warcraft and other Virtual Worlds,” DIMACS/CCICADA Student Workshop on Where the Mathematical and Computational Sciences Meet Society, Rutgers University, NJ
“Multi-Dimensional Data and the Influence of Human Behavior in Biosurveillance for Infectious Disease Outbreaks,” Global Biosurveillance Conference: Enabling Science and Technology – 2nd Meeting in the Biological Threat Non-Proliferation Conference Series, Santa Fe, NM
2010 “Distributed Algorithms for Collective Visualization of Data,” Visualanalytics Workshop 2010,
Imperial College London, UK “The Importance of Behavioral Dynamics on Disease Burden,” Southern African Wildlife College,
South Africa “The Impact of Stress on Populations,” DIMACS Advanced Study Institute on Conservation Biology,
Limpopo, South Africa “Social Behavior in Virtual Worlds,” Panel Discussant – InPlay 2010, Toronto, Canada “Self-Organizing Networks, Social Complexity, and Disease Dynamics,” Rensselaer Polytechnic
Institute, NY “Playing with Plague: Exploring Disease Dynamics from Within,” 2010 AAAS Annual Meeting, San
Diego, CA “Epidemiological Pressures on the Evolution of Social Complexity,” Mathematical Methods in Systems
Biology, Tel Aviv, Israel 2009 “Information Theoretic Tool for Biosurveillance,” CCICADA Kickoff Meeting, Rutgers Univ., NJ “Perspectives, Challenges, and Creativity in Understanding Behavioral Epidemiology,” Workshop on
Behavioral Epidemiology, Rutgers Univ., NJ “Evolutionary Implications of Epidemics on Social Behavior,” Evolutionary Genetics and Genomics at
Rutgers, Rutgers Univ., NJ Panel participant and Speaker on Popular Culture and Science, Sheffield Documentary Film Festival
'09, Sheffield, United Kingdom Keynote Address: “Epidemiological Insights from Virtual Worlds,” Life Science Dialogue
Heidelberg, - Inaugural Conference, Germany “Social Stability and Success: A new concept in self-organizing systems and preferential attachment,”
Office of Naval Research Workshop on Complex Systems, Institute for Pure and Applied Mathematics, Los Angeles, CA “The Impact of Household Capital Models on Targeted Epidemiological Control Strategies for Diseases with Age-Based Etiologies,” Makerere Univ., Kampala, Uganda Keynote Address: “Hakkar's Corrupted Blood Plague: How an Outbreak in World of Warcraft is Helping Epidemiologists Create Better Disease Models,” Games for Health – Virtual Worlds, Boston, MA “Network Representations and the Evolution of Social Complexity,” Frontiers in Applied and Computational Mathematics, New Jersey Institute of Technology, NJ
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“Mathematical Optimization, Evolutionary Sociobiology, and Eusocial Insects,” Conference on The Power of Analysis, Princeton Univ., NJ
“Mathematical Insights into Behavioral Epidemiology,” Univ. of Texas Health Science Center, Houston, TX
“Basics of Mathematical Modeling,” Mosquito Modeling Made Easy Day, Center for Vector Biology, Rutgers Univ., NJ
“Mathematical and Computational Methods in Epidemiology and BioSurveillance,” Jackson State University, MS
“Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” UNC, Chapel Hill, Applied Math, NC
“Network models in Epidemiology and Sociobiology: Introduction, Overview, and Recent Advances,” Mathematical Sciences, RPI, NY
2008 “Social Behavior and the Dynamics of Corrupted Blood,” Rice University/Games for Health, Houston,
TX “Possible Selective Mechanisms for the Evolution of Disease-defensive Social Organizations,” Ecology
and Evolution Seminar, Boston Univ., MA “Behavioral Epidemiology in Virtual Worlds: Exploiting the virtual experience,” Advanced
Technology Applications for Combat Casualty Care 08; Telemedicine and Advanced Technologies Research Center Medical Simulation & Training Technology “Recent Advances in the What, How and When of Network Models in Infectious Disease Epidemiology,” SIAM 2008, CA “World of Warcraft Corrupted Blood Disease: Epidemiological Observations and Findings,” Games for Health, Baltimore, MD “Computational Ecology: The Evolution of Sociality,” Frontiers in Applied and Computational Mathematics, New Jersey Institute of Technology, NJ Plenary Talk: “Self-organizing social behavior and disease-defensive organizational strategies in social species,” Complexity 2008, Univ. Illinois Urbana, IL “From the Individual to the Population: Modeling the many levels of evolutionary fitness in social species,” Dept. of Ecology and Evolution and Natural Resources, Rutgers Univ., NJ “Individual Decisions, Group Efficiency," ExxonMobil, Clinton, N.J. 2007 Public Lecture: “Virtual Games, Real Epidemics: Can We Learn Real-Life Lessons in BioDefense from Online Games?” Biosecurity, Biotechnology and Global Health Seminar Series, Program on Science and Global Security, Princeton Univ., NJ “Disease on Networks: Can Static Representations Capture the Full Complexity of a Dynamic Process?” NDSSL Seminar Series, Virginia Bioinformatics Institute, Virginia Tech, VA Public Lecture: “Real People, Virtual Worlds: Watching a Plague Unfold,” Institute for Mathematical Sciences, National Univ. of Singapore “The Continued Mystery of Regular, Old, Annual Flu,” Workshop on Mathematical models for the Study of the Infection Dynamics of Emergent and Re-emergent Diseases in Humans, Institute for Mathematical Sciences, National Univ. of Singapore “Epidemics and the Evolution of Social Complexity,” Program in Ecology and Evolution Seminar Series, Rutgers Univ., NJ “Playing Games at School: Parents, Public Schools, and Children's Health,” DIMACS Workshop on Game Theory in Epidemiology and Ecology, Rutgers Univ., NJ
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“Analyzing Entropy in Biosurveillance,” U.S. Dept. of Homeland Security research briefing, Washington D.C.
“Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connection Field Testers Workshop, Rutgers Univ., NJ
“Does Securing Infrastructure Against Workforce-Depletion Depend on Whether the Risk is Environmental or Infectious?” DIMACS Workshop on Mathematical Modeling of Infectious Diseases in Africa, Univ. of Stellenbosch, South Africa
“Social interaction and disease dynamics,” Workshop on Analysis of Time Series Data in Epidemiology, Tufts Univ. School of Medicine, Boston, MA
“The Behaviors of Individuals and Populations,” Working Group on Spatio-Temporal and Network Modeling of Diseases, ICMS, Edinburgh, Scotland
“The Evolution of Complexity in Already Social Groups,” Dept. of Ecology and Evolutionary Biology, Princeton Univ., NJ
“Disease as a Selective Pressure and the Evolution of Social Complexity,” Applied Biomathematics, Stony Brook, NY
“Vital Rate Sensitivity Analysis: A new method for population viability analysis - Two examples of its use,” Applied Biomathematics, Stony Brook, NY
“Disease as a Selective Pressure and the Evolution of Social Complexity,” Morin Lab, Dept. of Ecology, Evolution and Natural Resources, Rutgers Univ., NJ
2006 “The Role of Individual Choice in the Evolution of Social Complexity and its Implications Towards the
Emergence of Zoonotic Infections,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Preparing Societal Infrastructure Against Disease-Related Workforce Depletion,” DIMACS Workshop on Facing the Challenge of Infectious Diseases in Africa, University of the Witswatersrand, South Africa “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connect Institute for High School Teachers, Denver, CO “Societal Bio-defense - How Can we Accomplish Safety, Stability and Efficiency?” SIAM Annual Meeting, Boston, MA “When females should stop supporting lazy males: mathematics and honey bees?” DIMACS REU Seminar Series, Rutgers Univ., NJ “Selected Problems in Epidemiology.” DIMACS Tutorial on Data Mining and Epidemiology, NJ “How Would Termites Prepare for Pandemic Bird Flu and What Should We Learn From Them?” Joint Dept. of Entomology and Center for Infectious Disease Dynamics Seminar, Penn State Univ., PA “Different Scales of BioDefense - Can societies be both safe and efficient?” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ 2005 “Termites in the Nation′s Service,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Applications of Self-Organizing Systems to Epidemiology.” DIMACS Mixer Series, Rutgers Univ., NJ “Disease Signatures: A New Combinatorial Method for Epidemiology,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connect Institute for High School Teachers, Rutgers Univ., NJ
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“How Complex Systems Can Simplify a Complex Problem: What Epidemiologists Can Learn From Insects,” Institute for Advanced Study, Center for Systems Biology Seminar Series, NJ
2004
“Incorporating Behavior and Social Structure into Pathogen Defense Strategies. Conference on Innate Immunity for Biodefense,” National Defense University's Center for Technology and National Security Policy (CTNSP) & the Department of Defense, Washington D.C.
Keynote Address: “Social Insects, Immunocompetence and Epidemiology: A Model System for Systems Modelers,” Vanderbilt Medical School, Dept. of Microbiology and Immunology Annual Retreat, TN
“Disease and Immunocompetence in Group-Living Animals: Implications for Human Epidemiology,” DARPA/DSO Workshop on Endogenous Defense, VA
Contributed Presentations
2008. “An Interdisciplinary Framework for Defining and Distinguishing Security Desiderata for Personally Sensitive Information,” DIMACS/DyDAn Workshop on Internet Privacy: Facilitating Seamless Data Movement with Appropriate Controls
2006. “A Vital Rate Sensitivity Analysis (VRSA) for Non-stable Age Distributions and Short-term Planning,” North American Ornithological Conference
2004. “A Mathematical Analysis of Reproductive Fission,” North American Section of the International Union for the Study of Social Insects (with published abstract)
2004. “Two-stage Wavelet Analysis Assessment of Dependencies in Time Series of Disease Incidence,” The 2004 Conference of the International Environmetrics Society (with published abstract)
2004. “Mathematical Modeling of Behavior and Ecology in Social Insects: Social mechanisms of pathogen control in termite colonies,” Departmental Research Seminar, Tufts Univ.
2003. “Modeling Waterborne Infectious Outbreaks: When, where and how bad will they be?” The 2003 Conference of the International Environmetrics Society (with published abstract)
2003. “Modeling Disease Resistance through Social Interactions in Termites,” The 2nd Conference on the Mathematics and Algorithms of Social Insects (with published abstract)

Service (external to Home Institution)

Ongoing
2020 2019-2021 2019 2019 2018

Referee of papers for American Naturalist, Annales Zoologici Fennici, Behavioral Ecology and Sociobiology, Biological Conservation, BMC Evolutionary Biology, Bulletin for Mathematical Biology, Canadian Biosystems Engineering, Conservation Letters, IMA Journal of Applied Mathematics, Journal of Biological Dynamics, Journal of Infectious Diseases, Journal of Insect Science, Journal of Nonlinear Dynamics, Mathematical Biosciences, Journal of Medical Internet Research, Journal of the Royal Society Interface, Malaria Journal, Nature, Nature Scientific Reports, Parasites and Vecotrs, PeerJ, Phyiscal Reviews X, PLoS Computational Biology, PLoSOne, PloS Medicine, PNAS, Vaccine, Vector-Borne and Zoonotic Diseases
Deputy Editor PLOS Computational Biology
Director of Development, Enhancing Diversity in Graduate Education (EDGE) Foundation
Guest Editor PLOS Computational Biology
Co-Organizer SIAM Network Science Annual Meeting (NS 19)
NSF ad hoc proposal reviewer

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2018 2018
2017-cont.
2017
2017 2016
2016
2014 2013- 2016
2013 2013-2016 2013-2019
2012
2012
2011
2011
2011 2011
2010
2010
2010
2010 2010
2010
2009
2009 2009
2009 2008-2010 2008-2010

Burroughs Wellcome Fund grant proposal reviewer
Co-Organizer IEEE Symposium on Security and Privacy, entitled: 3rd Workshop on Bio-inspired Security, Trust, Assurance and Resilience (BioSTAR 2018)
Member of the Leadership Team of the National Institute for Mathematical and Biological Synthesis
Co-Organizer NIMBioS Workshop on Applying Optimization Techniques to Agricultural Problems
ARO grant proposal reviewer Co-Organizer MBI (the Mathematical Biosciences Institute at Ohio State) Workshop on
Generalized Network Structures and Dynamics Co-Organizer MBI (the Mathematical Biosciences Institute at Ohio State) Emphasis
Semester on Dynamics of Biologically Inspired Networks ARO grant proposal reviewer Member of Scientific Advisory Board for MBI (the Mathematical Biosciences Institute
at Ohio State) NIH grant proposal reviewer Co-Organizer NIMBioS Working Group on Climate Change and Vector-borne Diseases Invited Participant Joint NIMBioS-SESYNC Working Group on Human Risk
Perception and Climate Change Invited Grant Proposal Reviewer for the United States – Israel Binational Science
Foundation US Environmental Protection Agency FIFRA Scientific Advisory Panel (SAP) on
Pollinator Risk Assessment Framework Invited Participant - External Expert Review Panel for Bioscience Research and
Development at Los Alamos National Laboratory Program Committee Member, The Third International UKVAC Workshop on Visual
Analytics (VAW 2011) NSF grant proposal reviewer Co-Organizer DIMACS/MBI US - African BioMathematics Initiative: Advanced Study
Institute and Workshop on Genetics and Disease Control Organizer of the DIMACS Mini-Workshop on ‘Emergent Properties of Dynamic
Biological Networks’ Lecturer at DIMACS/MBI US - African BioMathematics Initiative: Workshop and
Advanced Study Institute on Conservation Biology Organizer of the DIMACS Mini-Workshop on ‘Game-theoretic Approaches to Medical
Prognosis’ NSF grant reviewer/panel participant Invited International Reviewer for Centre of Excellence Grants for the Australian
Research Council Co-Organizer of the DIMACS Workshop on Modeling and Mitigation of the Impacts of
Extreme Weather Events to Human Health Risks Co-Organizer DIMACS Workshop on Economic Epidemiology, Makerere Univ.,
Kampala, Uganda NSF grant reviewer/panel participant Co-Organizer/ Program Co-Chair Workshop on Economic Epidemiology, Makerere
Univ., Kampala, Uganda Co-Organizer Mosquito Modeling Made Easy Day at the N.J. Center for Vector Biology Member Chief Editorial Committee for the DIMACS Book Series Member Editorial Board of DIMACS Educational Modules Series

20

Case 2:20-cv-02359 Document 2-1 Filed 05/20/20 Page 30 of 31 PageID 94

2008 2008
2007
2006-2016 2004 2004 2003
2000-2002 1999

Invited organizer SIAM mini-symposium on Network Models of Infectious Disease Ran the Reconnect Program on Biosurveillance at DIMACS – a week long short course
for teaching faculty at liberal arts institutions on an advanced topic to expand their own and their students research opportunities Mentor to two teams of researchers for Department of Homeland Security funded Research Experience for those at Minority Serving Institutions Advisory/Editorial Board Member for the journal Annales Zoologici Fennici Subject Matter Expert on Innate Immunity and Biodefense, National Defense University Research Consultant, DARPA (via Strategic Analysis, INC.) Developed algorithm for Managing Endangered Species Habitat in Hawaii - MESHH software package (Reed, J.M., N.H. Fefferman, C.S. Elphick, and M. Silbernagle. 2004) Technical Editor (Cryptography) to MacMillan Press Invited Reviewer of AES submission to the National Institute of Standards and Technology, later published as The Twofish Encryption Algorithm, Schneier, et al, 1999, John Wiley & Sons Inc.

Service (internal to Home Institution)

2020 2019-cont. 2019
2019 2018 2018-cont. 2017-cont. 2017
2017 2016-2017
2016-2017
2016-cont.
2015-2016 2014
2010
2009-2010 2009 2009-2010 2008-2012 2008-2010 2008-2010 2007-2009

Advisor to the COVID-19 Re-Imagining Fall Task Force Head of Graduate Admissions, Program in Ecology and Evolutionary Biology Research Mentor for the NIMBioS Summer Research Experiences (SRE) for
Undergraduates Co-Organizer Tutorial on Networks at NIMBioS Serve on departmental Promotion and Tenure Committee for Prof. O’Meara Serve on Faculty Mentoring Committee for Prof. Kivlin Served as Departmental Coordinator for University Future Faculty Program Research Mentor for the NIMBioS Summer Research Experiences (SRE) for
Undergraduates Lecturer for Joint 2017 MBI-NIMBioS-CAMBAM Summer Graduate Program University of Tennessee, Knoxville Department of Ecology and Evolutionary Biology
Search Committee Member and Diversity Advocate (Ecosystem Ecology Search) University of Tennessee, Knoxville Department of Mathematics Search Committee
Member (Mathematical Biology Search) University of Tennessee, Knoxville Program in Ecology and Evolutionary Biology
Graduate Affairs Committee Member Rutgers University Biological Sciences Area Committee Member Rutgers University EENR Department Wildlife Biology Faculty Search Committee
Member Co-Mentor to a team of researchers for Department of Homeland Security funded
Research Experience for those at Minority Serving Institutions Organizer of the EENR seminar series Organizer of the DIMACS Workshop on Behavioral Epidemiology Member E&E Executive Committee Member of EENR Curriculum Committee Member Chief Editorial Committee for the DIMACS Book Series Member Editorial Board of DIMACS Educational Modules Series Member of the Rutgers University Advisory Board to the Office for the Promotion of
Women in Science, Engineering and Mathematics

21

Case 2:20-cv-02359 Document 2-1 Filed 05/20/20 Page 31 of 31 PageID 95 2006-2015 Research Advisor for Rutgers Univ. DIMACS REU 2005-2007 Co-organizer DIMACS seminar series Mathematical and Computational Epidemiology
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Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 1 of 20 PageID 96

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
P etitioners-P laintiffs ,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______

DECLARATION OF DR. JOE GOLDENSON IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 2 of 20 PageID 97
I, Joe Goldenson, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746:
1. I am over the age of 18 and I am competent to make this declaration. 2. I am a physician who has worked in health care for prisoners for 33 years. I worked for Jail Health Services of the San Francisco Department of Public Health for 28 years. I was the Director and Medical Director for 22 of those years. In that role, I provided clinical services, managed public health activities in the San Francisco County jail, and administered the correctional health enterprise, including its budget, human resources services, and medical, mental health, dental, and pharmacy services. 3. I served as a member of the Board of Directors of the National Commission on Correctional Health Care for eight years and was past President of the California chapter of the American Correctional Health Services Association. 4. I held an academic appointment as an Assistant Clinical Professor at the University of California, San Francisco, for 35 years. 5. I have worked extensively as a correctional health medical expert and court monitor. I have served as a medical expert for the United States District Court for the Northern District of California for 25 years. I am currently retained by that Court as a medical expert in Plata v. Newsom, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical care provided to inmate patients in the California Department of Correctional Rehabilitation. I have also served as a medical expert/monitor at Cook County Jail in Chicago and Los Angeles County Jail, at other jails in Washington, Texas, and Florida, and at prisons in Illinois, Ohio, and Wisconsin. 6. My resume is attached as Exhibit A.
2

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 3 of 20 PageID 98
I. COVID-19 7. COVID-19 is a disease that has reached pandemic status. As of May 19, 2020,
there are 4,731,458 confirmed cases of COVID-19 worldwide; COVID-19 has caused 316,169 deaths.1 Outbreaks have occurred within the United States in regions like New York, New Jersey, Louisiana, Michigan, and Illinois. As of May 19, 2020, there are 1,477,516 confirmed cases of COVID-19 and 89,272 COVID-19 related deaths within the United States.2
8. COVID-19 is a serious illness caused by SARS-CoV-2, a novel coronavirus (“the virus”). In severe cases, COVID-19 can require hospitalization and lead to respiratory failure and death. Symptoms may appear two to 14 days after exposure to the virus and may include fever, cough, and shortness of breath or difficulty breathing. While more than 80% of cases are mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
9. Patients who suffer from serious disease may progress to Acute Respiratory Distress Syndrome (ARDS), which is a type of respiratory failure. Many patients suffering from ARDS will require mechanical ventilation. ARDS has a 30 percent mortality rate overall, and a higher mortality rate in people with other medical conditions.
10. Certain populations are particularly vulnerable to severe cases of COVID-19. The case fatality rate and need for advanced medical intervention and support increase significant ly with advancing age in people aged over 50 and for people of any age with certain underlying medical conditions (the “medically vulnerable”). The Centers for Disease Control and Prevention (“CDC”) identified underlying medical conditions that may increase the risk of serious COVID-
1 WORLD HEALTH ORGANIZATION, Coronavirus disease (COVID-19) Situation Report – 116 14 (May 15, 2020), h ttp s://www.who.in t/d ocs/default-so urce/coro naviru se/situ ation -reports/20200515-co v id -19-s itrep 116.p d f?s fv rsn =8dd60956_ 2.
2 Id. at 7.
3

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 4 of 20 PageID 99
19 for individuals regardless of age, including: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, diabetes, metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and severe obesity.3
11. At this time, there is no vaccine to prevent COVID-19 and there is no known cure or anti-viral treatment available.
12. The virus that causes COVID-19 is highly infectious. It is transmitted from person to person via airborne droplets. The droplets are released by infected individuals when they cough, sneeze or talk and can infect other persons in close proximity (within approximately six feet). The infected droplets can survive in the air for up to three hours. The virus may also be transmitted when a person touches a surface or object that has the virus on it and then touches their own mouth, nose, or possibly eyes. Infected droplets can survive on surfaces for varying time periods. For example, studies suggest that the virus can survive for up to 24 hours on cardboard, and for two to three days on plastic or stainless steel.
13. A significant number of those who are infected with COVID-19 do not exhibit any symptoms. Similarly, some people may only experience mild symptoms. However, these asymptomatic and mildly symptomatic individuals can, and do, transmit the virus to others, which has further contributed to its rapid spread. Recognizing the high risk of transmission posed by asymptomatic individuals, the CDC recommended everyone in the United States wear cloth face coverings when in public settings where social distancing is difficult to maintain.4
3 CENT ERS FOR DISEASE CONT ROL AND PREVENT ION, People Who Are at Higher Risk for Severe Illness (May, 14 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
4 CENTERS FOR DISEASE CONTROL AND PREVENTION, Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant Community-Based Transmission (Last Updated Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html.
4

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 5 of 20 PageID 100
14. The only known ways to prevent the spread of COVID-19 are maintaining six feet of physical distance between individuals (“social distancing”), frequent and thorough handwashing, and frequent decontamination of surfaces. II. The Risks of COVID-19 in Detention Facilities
15. COVID-19 poses a very serious risk to detainees, staff, and other visitors to detention facilities such as prisons or jails. It is uncontroversial that detention facilities, including jails like Shelby County Jail, are associated with high transmission rates for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.
16. Living conditions in prisons and jails exacerbate the spread of infectious diseases, particularly diseases like COVID-19 that are transmitted by airborne droplets. In these facilities, large numbers of people are closely confined and are physically unable to practice social distancing, which the CDC has identified as a “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”5 Further, detainees often have limited access to hygiene and personal protective equipment such as soap, hand sanitizer, masks, and gloves.
17. People in jails and prisons typically sleep in close quarters, for example, a single room may contain multiple bunkbeds with limited ventilation. A single cell can house multiple people. Detainees are generally forced to share toilets, sinks, and showers without disinfection between use. Common areas are shared by large groups of people. The preparation and distribution of food is often centralized, sometimes using a single kitchen or cafeteria for an entire facility.
5 CENTERS FOR DISEASE CONTROL AND PREVENTION, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, (Last Updated May 7, 2020) https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html.
5

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 6 of 20 PageID 101
18. Additionally, the likelihood of exposure is heightened due to the constant “churn” (i.e., exit and entry) of both staff and detainees in jails, and population mixing of staff and detainees. Staff have regular direct physical contact with detainees, for example, when handcuffing or removing handcuffs from detainees who are entering or exiting the facility.
19. Outbreaks of COVID-19 have occurred in detention facilities in the United States, for example at the Lompok facility near Los Angeles, California,6 the Marion Correctional Facility in Ohio,7 the Bledsoe Prison in Pikeville, Tennessee8, and the Rikers Island detention facility in New York City9.
20. Jails and prisons generally lack the medical care infrastructure and resources required to cope with an outbreak of infectious disease. Some do not have onsite medical facilities at all. Medical facilities within jails and prisons are generally designed and resourced to administer medical care for the ordinary day to day needs of detainees. They are not designed or equipped to cope with an influx of cases of a highly infectious disease like COVID-19, especially in addition to the regular case load. Medical facilities within detention facilities are generally not designed or equipped to administer the resource-intensive advanced care required by patients with serious cases of COVID-19.
6 Tyler Hayden, Lompoc Prison Explodes with Active COVID-19 Cases, (May 13, 2020) https://www.independent.com/2020/05/13/lompoc-prison-explodes-with-active-covid-19-cases/ .
7 Josiah Bates, Ohio Began Mass Testing Incarcerated People for COVID-19. The Results Paint a Bleak Picture for the U.S. Prison System, TIME(Apr. 22, 2020), https://time.com/5825030/ohio-mass-testing-prisonscoronavirus-outbreaks/.
8 Bill Hutchinson, COVID-19 outbreak infecting over 500 prisoners may havecome from staff: Medical director, ABC NEWS (Apr. 28, 2020), https://abcnews.go.com/US/covid-19-outbreak-infecting-500-prisoners-staffmed ical/s to ry?id=70382322.
9 Miranda Bryant, Coronavirus spread at Rikers is a 'public health disaster', says jail's top doctor, THE GUARDIAN (Apr. 1, 2020), https://www.theguardian.com/us-news/2020/apr/01/rikers-island-jail-coronavirusp u b lic-h ealth-dis aster.
6

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 7 of 20 PageID 102
21. Jails and prisons often need to rely on external facilities such as hospitals and emergency departments to provide intensive medical care. This places additional strain on the resources of those facilities which may already be overwhelmed during a pandemic.
22. During an outbreak, jail staff also become infected and fall ill, and therefore cannot report to work. This can result in understaffing of crucial roles, such as medical staff, cleaning staff and security staff, placing further strain on the facility’s ability to cope with the outbreak.
23. Prison outbreaks can pose serious risks to communities beyond the prison. For example, the tuberculosis epidemic that broke out in New York City in the early 1990s began in jails and was spread to the community by jail employees who became infected and then returned home.10 The severe epidemic of tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of tuberculosis in multiple states in that region.11
24. Medically vulnerable people within jails and prisons are at even higher risk than other detainees. As described herein, compared to the general population, they are at a higher risk of death or severe illness from COVID-19. They also require ongoing medical care for their underlying medical conditions. However, medical units within detention facilities may not have the resources to administer adequate care during the course of a pandemic. Failure to provide those individuals with adequate medical care for chronic underlying health conditions will also result in increased risk of morbidity and mortality related to those underlying conditions. In turn, that results in increased risk of COVID-19 infection and increased risk of COVID-19-related morbidity and mortality if they do become infected.
10 LEE B. REICHMAN, EARL S. HERSHFIELD, TUBERCULOSIS: A COMPREHENSIVE INTERNATIONAL APPROACH 650– 652 (2d ed. 2000).
11 David Stuckler et al., Mass incarceration can explain population increases in TB and multidrug-resistant TB in European and central Asian countries, 105 Proc. Nat’l Acad. Sci. U S A., 13280, 13280 (2008).
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25. While jails and prisons should take all measures possible to reduce exposure to
infection in detention, given the rapid spread of COVID-19, it is now likely impossible to achieve
and sustain those measures quickly enough to mitigate the risk of transmission. It is therefore an
urgent priority to reduce the number of persons in detention as quickly as possible.
26. This is consistent with guidance from the World Health Organization, which
recommended that “enhanced consideration should be given to resorting to non-custodial measures
at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”12 Indeed, the pandemic has prompted the release of prisoners
around the world. In California, 3,500 inmates were granted early release. 13 France released 5,000 inmates.14 Many cities and counties across the US, including San Francisco15, Chicago 16,
Cleveland17 and New York18, are also releasing prisoners to reduce the risk of COVID-19.
12 WORLD HEALTH ORGANIZATION, Preparedness, prevention and control of COVID-19 in prisons and other places of detention Interim guidance4 (Mar. 15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID19-in -p ris o n s .pdf?ua=1.
13 Robert Burnson and Laurel Brubaker Calkins, California, Texas Plan WideReleaseof Inmates as Virus Spreads, BLOOMBERG NEWS (Mar. 31, 2020), https://www.bloomberg.com/news/articles/2020-03-31/californiato -releas e-up-to-3-500-in mates-in -respo nse-to-v irus.
14 BBC NEWS, Coronavirus: Low-risk prisoners set for early release (Apr. 4, 2020) https://www.bbc.com/news/uk-52165919.
15 Katie Canales, Nearlyhalf of San Francisco's inmate population has been released to avoid coronavirus outbreaks within jails, BUSINESS INSIDER (Apr. 6, 2020), https://www.businessinsider.com/san-franciscoin mates -jails -released-coron aviru s-2020-4.
16 Cheryl Corley, To Combat High Infection Rate, Chicago Jail Releases Hundreds, NPR (Apr. 11, 2020), https://www.npr.org/2020/04/11/832572950/to-combat-high-infection-rate-chicago-jail-releases-hundreds.
17 Scott Noll, Cuyahoga County Jail releases hundreds of low-level offenders to prepare for coronavirus pandemic, THE REBOUND (Mar. 20, 2020), https://www.news5cleveland.com/news/local-news/ohcu y ah oga/cuyahog a-coun ty-jail-releas es-h undreds-o f-lo w-level-o ffenders-to-p repare-fo r-coronaviru s-pandemic.
18 Mary Bassett et al., Andrew Cuomo, Stop a Coronavirus Disaster: Release People from Prison, N.Y. TIMES (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/opinion/nyc-prison-release-covid.html.
8

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 9 of 20 PageID 104
III. Medically Vulnerable Persons at Shelby County Jail Are at Grave Risk of Death or Serious Illness 27. I have reviewed the following materials regarding the conditions at Shelby County
Jail: the declarations of Josh Spickler; the declaration of Stella Yarbrough; the declaration of Josie Holland; the declaration of Ann Schiller; the declaration of Michael Working.
28. Based on my review of these materials, my experience working in public health in jails and prisons, and my review of the materials above, it is my opinion that medically vulnerable persons at Shelby County Jail are at grave risk of death or serious illness. To the extent possible, Respondent-Defendants must release all medically vulnerable people to prevent death and serious illness. The reasons for this conclusion are described below.
29. I understand that many detainees at Shelby County Jail are housed in “pods,” of around 30 to 40 people, comprised of cells which line a communal area. I understand that on April 17, 2020, 23 pretrial detainees at the Jail were tested; five were positive for COVID-19.19 On April 30 the Jail tested 266 pretrial detainees and employees. Seventy-two percent tested positive.20 The numbers in the Jail today are likely higher, as the Jail has neither administered universal testing nor any testing since April 30, 2020. To date, one Jail employee has died from COVID-19. 21
30. Many detainees at Shelby County Jail, including medically vulnerable detainees, are not able to practice social distancing. I understand that many cells are shared by two detainees,
19 Yolanda Jones, Five Inmates Test Positive for COVID at ShelbyCountyJail as Bonner Takes Safety Precautions, DAILY MEMPHIAN (Apr. 17, 2020) https://dailymemphian.com/article/13074/sheriff-floyd-bonnerfiv e-in mates -p ositiv e-coro nav irus-sh elb y-coun ty-jail.
20 Yolanda Jones, MoreThan 70%Of Inmates Tested At 201 Poplar Are Positive For COVID-19, DAILY MEMPHIAN (Apr. 29, 2020) https://dailymemphian.com/article/13488/201-poplar-covid-testing-70-percentp o s itiv e.
21 Yolanda Jones, Sheriff’s Office Employee Dies From COVID-19, DAILY MEMPHIAN (Apr. 21, 2020) https://dailymemphian.com/article/13185/sheriffs-office-employee-dies-from-covid-19.
9

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and that the cells are not large enough for cell mates to maintain a distance of six feet apart from each other. Those detainees share a toilet and sink.
31. Detainees also eat meals and share telephone and laundry facilities in the communa l area. I understand that communal areas are not large enough that detainees can practice social distancing. Detainees must queue in close proximity to each other to receive any medication they require, where it is impossible to maintain six-feet distance from eachother. Detainees must queue in close proximity to receive meals, and eat meals at small shared tables. Detainees who are attending court must wait in a holding cell with up to 30 or 40 other detainees, and can spend the entire day in the holding cell. Detainees cannot practice social distancing in any of those situations.
32. I understand that cells are not disinfected regularly. I understand that detainees are not provided with disinfectant or cleaning equipment and that if detainees wish to clean their cells they must submit a request to use cleaning solution spray, which is often not available. I understand that detainees share the use of touchscreen kiosks (used to place orders from the commissary) and telephones in the communal area that are not disinfected between individual uses. I understand that meals are communally prepared and delivered to the detainees by other detainees.
33. I understand that detainees are required to purchase soap from the commissary or, if they do not have funds, they can request small bars of soap at no cost that can take up to a week to arrive. Detainees do not have access to hand sanitizer or paper towels. I understand that, while masks were distributed, many detainees were given only one mask each, which is not cleaned or replaced regularly, if at all. I understand that not all detainees are required to wear masks in communal areas.
34. I understand that many staff do not wear masks and when they do wear the masks, they do not wear them adequately so that it covers their mouths at all times when in the presence
10

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 11 of 20 PageID 106
of detainees. Failure to do so places detainees at risk of infection by staff, who often move in close proximity to the people being detained. Staff do not always practicing social distancing from each other.
35. I understand that detainees can request medical attention by logging a sick call through the kiosk in the communal area for a fee. I understand that once the sick call has been logged it can take up to two days to be seen by medical staff. I understand that some detainees who have displayed COVID-19 symptoms have not been provided with any medical assistance.
36. I understand that people arrested and booked into the Shelby County Jail are not consistently screened for symptoms of COVID-19. Failure to screen and quarantine new arrivals places other prisoners at risk of infection from new arrivals who are infected, including those who are asymptomatic or presymptomatic. Under the conditions described herein, detainees cannot practice social distancing or good hygiene, nor can they frequently disinfect shared surfaces. The detainees at Shelby County Jail are unable to take basic steps to protect themselves from the virus. There is a high risk that detainees will become infected with COVID-19, which means that medically vulnerable detainees face a grave risk of death or serious illness.
37. I understand that some detainees who tested positive for COVID-19 were removed from their pods to designated quarantine areas, including isolation units. I also understand some detainees that have exhibited symptoms of COVID-19 but have not tested positive were also placed in quarantine, and were housed with detainees that have confirmed cases of COVID-19. This practice presents a grave risk that persons who are not infected with COVID-19 will become infected.
38. I understand that some quarantined detainees did not have access to fresh drinking water and had to drink water from the toilet tanks. I also understand that those detainees placed in
11

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isolation lost certain privileges (for example, access to a clothes washer and dryer, microwave, and television). The prospect of losing privileges tends to discourage detainees from seeking testing or reporting symptoms and seeking medical attention.
39. In my opinion, the only viable course of action is risk mitigation, and the best form of risk mitigation for medically vulnerable people is to release them from detention, given the heightened risks to their health and safety. I understand that there are 155 confirmed cases of COVID-19 at Shelby County Jail.22 While those detainees have been housed separately, it is likely that there are many unconfirmed cases living amongst the prison population.
40. Release of the most vulnerable people also reduces the burden on the limited health care infrastructure within Shelby County Jail, because the released detainees will not require treatment related to COVID-19 infection and will no longer require treatment for underlying conditions. Releasing medically vulnerable detainees also reduces the burden on nearby hospitals, which will otherwise need to treat these individuals when infected, freeing up those resources to treat other members of the public.
41. Releasing as many detainees as possible is important to protect the health of detainees, staff, health care workers at jails and other detention facilities, and the community as a whole.
42. To the extent possible, medically vulnerable detainees at Shelby County Jail must be released as soon as possible. Those detainees should be released to a place where they can maintain quarantine for at least 14 days and receive any necessary healthcare for underlying chronic conditions.
22 Yolanda Jones, More Than 70% Of Inmates Tested At 201 Poplar Are Positive For COVID-19, DAILY MEMPHIAN (Apr. 29, 2020) https://dailymemphian.com/article/13488/201-poplar-covid-testing-70-percentp o s itiv e.
12

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 13 of 20 PageID 108 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th day in May, 2020 in Alameda County, California. /s/ Joe Goldenson____ Joe Goldenson, M.D. 1406 CYPRESS STREET BERKELEY, CA 94703 (510) 557-1086 jgoldenson@gma il.com
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Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 14 of 20 PageID 109
Exhibit A

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 15 of 20 PageID 110
CURRICULUM VITAE
JOE GOLDENSON, MD 1406 CYPRESS STREET BERKELEY, CA 94703
(510) 557-1086 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 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 16 of 20 PageID 111

Consulting 6/16-8/19 4/02-Present
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
1/02-3/02
8/01-4/02 7/01-4/02 1/96-1/14 5/95-6/08
3/98-12/98

Consultant to Los Angeles Department of Health Services re: provision of health care services in the LA County Jail Federal Court Medical Expert, Plata v. Newsome, Class Action Lawsuit re: prisoner medical care in California State Prison System Medical expert for the Illinois Department of Corrections and the ACLU of Illinois Federal Court appointed Medical Monitor, U.S.A. v. Cook County, et al., United States District Court for the Northern District of Illinois, No. 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 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

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 17 of 20 PageID 112

2/98 6/94

Medical Expert, Department of Justice Investigation of Clark County Detention Center, Las Vegas, Nevada Surveyor, National Commission on Correctional Health Care, INS Detention Center, El Centro, CA

Work Related Committees

1/14 to present

Member, Editorial Advisory Board, Correctional Health Care

10/11 to 5/19

Report Member, Board of Directors of the National Commission on Correctional Health Care

5/07-10/12

Liaison to the CDC Advisory Council for the Elimination of

12/04-3/06

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 6/01-1/15

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

Consultant to Centers for Disease Control on the Prevention

9/97-6/02

and Control of Infections with Hepatitis Viruses in Correctional Settings (MMWR 2003; 52(No. RR-1)) Member, Executive Committee of Medical Practice Group, San

3/97-3/02

Francisco Department of Public Health American Correctional Health Services Association Liaison

3/96-6/12 2/00-12/00

with American Public Health Association Chairperson, Bay Area Corrections Committee (on tuberculosis) Medical Providers’ Subcommittee of the Office-based Opiate

12/98-12/00

Treatment Program, San Francisco Department of public Health Associate Chairperson, Corrections Sub-Committee, California

7/94-7/96

Tuberculosis Elimination Advisory Committee Advisory Committee for the Control And Elimination of Tuberculosis, San Francisco Department of Public Health

6/93-6/95

Managed Care Clinical Implementation Committee, San

2/92-2/96

Francisco Department of Public Health Tuberculosis Control Task Force, San Francisco Department of Public Health

3/90-7/97

San Francisco General Hospital Blood Borne Pathogen Committee

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 18 of 20 PageID 113

1/93-7/93

Medical Staff Bylaws Committee, San Francisco Department of Public Health

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 Ca ring for the Inma te Health Population: A Public Health Imperative, Correctional Health Care Leadership Institutes, July 2015 Correctiona l Medicine a nd Community Health, Society of Correctional Physicians Annual Meeting, October, 2014 Identifying Pulmona ry TB in Ja ils: A Roundta ble Discussion, National Commission on Correctional Health Care Annual Conference, October 31, 2006 A Community Hea lth 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

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 19 of 20 PageID 114
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 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. Correctional Health Care: Practice, Administration, and Law. Kingston, NJ: Civic Research Institute. 2017. 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.S 3–S 4 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

Case 2:20-cv-02359 Document 2-2 Filed 05/20/20 Page 20 of 20 PageID 115
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 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 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 1 of 42 PageID 116

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
P etitioners-P laintiffs ,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______

DECLARATION OF DR. MARIE GRIFFIN IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 2 of 42 PageID 117
I, Marie Griffin, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746:
1. I over the age of 18 and am competent to make this declaration. 2. I am a Professor of Medicine and Health Policy at Vanderbilt University in Nashville, Tennessee, where I am a specialist in epidemiology and internal medicine. I have been elected to the American Epidemiology Society and the American Association of Physicians. At the Vanderbilt University Medical Center, I currently direct the Master of Public Health program and do epidemiologic research. I obtained my medical degree from Georgetown University; my master’s degree in public health from Johns Hopkins University; and completed my medical residency at Emory University. I trained in epidemiology at the Centers for Disease Control and Prevention (“CDC”), Johns Hopkins University, and the Mayo Clinic. During my two-year epidemiology training at CDC, I served on the New Jersey State Health Department, so I am familiar with outbreak investigations and public health infrastructure. I am a member of the Vanderbilt University Public Health Advisory Task Force which is responsible for advising the University on its COVID-19 response. I am also a member of the University’s Department of Health Policy COVID-19 Advisory Panel, and in that role, I have helped prepare advisory memos for use by public health professionals and officials. Attached as Exhibit A is a copy of my curriculum vitae. 3. COVID-19 is an infection caused by SARS-COV-2, a novel zoonotic coronavirus. SARSCOV-2 originated in Wuhan, China in December 2019 and caused a viral outbreak.1 On March
1 WORLD HEALTH ORGANIZATION, WHO Timeline- COVID-19 (Apr. 27, 2020), https://www.who.int/newsroom/detail/27-04-2020-who-timeline---covid-19.
1

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 3 of 42 PageID 118
12, 2020, the World Health Organization declared that COVID-19 was a global pandemic.2 As of May 19, 2020, there are 4,731,458 confirmed cases of COVID-19 worldwide; COVID-19 has caused 316,169 deaths.3 Outbreaks have occurred within the United States in regions like New York, New Jersey, Louisiana, Michigan, and Illinois. As of May 19, 2020, there are 1,477,516 confirmed cases of COVID-19 and 89,272 COVID-19 related deaths within the United States.4
4. There is no vaccine for COVID-19 and no known cure. There is no known effective antiviral medication currently available to prevent or treat infection. The only way to reduce the risk of injury or death from COVID-19 is to prevent individuals from being infected with the virus in the first place. One known effective way to reduce the risk of infection is to practice “social distancing” (remaining physically separated, approximately six feet apart from other people), and good hygiene, including washing with soap and water and disinfecting commonly used surfaces. In addition, appropriate public health measures include isolating any person with confirmed or suspected COVID-19 and using quarantine for close contacts of suspected/confirmed cases and all persons with high-risk exposures.
5. COVID-19 can cause flu-like symptoms including fever, cough, and shortness of breath. The virus can cause severe illness requiring hospitalization, the need for mechanical ventilation, and death. Some groups of people are particularly vulnerable to severe illness as a result of COVID-19. People aged over 50 are at higher risk of severe illness, and those aged over 65 are at serious risk. The CDC lists the following conditions that people of any age at high risk for serious illness from COVID-19: chronic lung disease or moderate to severe asthma; serious heart
2 WORLD HEALTH ORGANIZATION, WHO Director-General’s opening remarks at the Mission briefing on COVID-19 (Mar. 12, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarksat-th e-mis s ion -briefin g-o n-covid -19---12-march -2020.
3 WORLD HEALTH ORGANIZATION, Coronavirus disease (COVID-19) Situation Report – 116 14 (May 15, 2020), h ttp s://www.who.in t/d ocs/default-so urce/coro naviru se/situ ation -reports/20200515-co v id -19-s itrep 116.p d f?s fv rsn =8dd60956_ 2.
4 Id. at 7.
2

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 4 of 42 PageID 119
conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; severe obesity (body mass index [BMI] of 40 or higher); diabetes; chronic kidney disease requiring dialysis; and liver disease. 5 Pregnancy in the era of COVID-19 also requires special consideration because of risks of transmission and potential needs for isolation and quarantine.
6. The case fatality rate associated with COVID-19 infection is much higher than that associated with seasonal influenza, and has been estimated to be about 10-fold higher. About 15% of those with COVID-19 illness are hospitalized, about 6% require intensive care, and 1% to 5% die. These proportions may be 2-4 times higher among those with high risk conditions.
7. Many people in the vulnerable groups who suffer from severe illness as a result of COVID19 will require more advanced medical support including mechanical ventilation and, in extreme cases, extracorporeal membrane oxygenation. This heightened level of care is extremely resource intensive. It requires specialized equipment, the supply of which is limited. It also requires an entire team of healthcare providers, including 1:1 or 1:2 nurse to patient ratios, intensive care physicians, and respiratory therapists. The level of support required can quickly exceed the capacity of local healthcare facilities if many cases occur simultaneously.
8. COVID-19 can cause severe damage to lung tissue, which may require an extensive period of rehabilitation. In some cases, it can cause a permanent loss of respiratory capacity. There is evidence that the virus can target the heart muscle, causing myocarditis (inflammation of the heart muscle). Myocarditis can affect the heart muscle and electrical system, reducing the heart's ability to pump. This can lead to rapid or abnormal heart rhythms in the short term, and heart failure in
5 CENT ERS FOR DISEASE CONT ROL AND PREVENT ION, People Who Are at Higher Risk for Severe Illness (May, 14 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
3

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 5 of 42 PageID 120
the longer term. Further, there is evidence that the virus can cause cytokine release syndrome, which is an overproduction of immune cells and their activating compounds—cytokines—causing further damage to organs, and in some cases organ shutdown.
9. Vulnerable patients who do not die can undergo a long recovery requiring intensive rehabilitation, as a result of profound deconditioning, loss of respiratory capacity, neurologic damage, and other effects of severe illness.
10. The period betweeninfection and the development of symptoms is known as the incubation period. The incubation period for COVID-19 can range between two and 14 days, and is typica lly around five days. However, some infected individuals never develop symptoms at all. There is evidence that the virus can be transmitted by infected individuals who have not yet developed symptoms, and by infected individuals who never develop symptoms. Aggressive testing for the presence of the virus, SARS-COV-2, among those with symptoms, is required, especially in institutional settings. In these settings, the virus can spread quickly and the ability to isolate suspected cases and quarantine those exposed is needed. Testing of asymptomatic individuals may be advised in some situations. Even if no individuals within a community or institution have presented with symptoms and/or tested positive, asymptomatic infected individua ls may be present within the community or institution, potentially infecting others on an ongoing basis.
11. Congregate settings pose particularly high risks of virus transmission. Congregate settings are environments where a large number of people live or gather. During the pandemic, very high person-to-person transmission rates for COVID-19 have occurred in congregate settings, including nursing homes (for example, in New Jersey and Washington), on cruise ships and, recently, at the Marion Correctional Facility in Ohio. According to the Department of Rehabilitation and
4

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 6 of 42 PageID 121
Correction, approximately 2,011 inmates testedpositive (out of 2,500 total inmates at the facility). 6 154 employees from a reported staff of about 350 have also tested positive.7 Another outbreak occurred at the Rikers Island jail complex in New York City. The number of confirmed cases among inmates increased from one to nearly 200 within 12 days.8 At the beginning of April, the rate of infection observed at the Rikers Island jail complex was over eight times the rate of infection observed in New York City.9 These outbreaks are consistent with the spread of other viruses within populations in congregate settings. During the 2009 H1N1 influenza epidemic, serious viral outbreaks occurred in jails and prisons.
12. COVID-19 will continue to rapidly spread in prisons and jails. People who live in prisons and jails cannot take basic measures to protect themselves from infection. They do not have sufficient space to engage in social distancing, and often have limited ability to practice proper hygiene. They cannot protect themselves from known infected individuals. Further, people constantly enter these facilities from the wider community (for example, new inmates or staff who reside outside the facility), which means that there is a constant threat that the virus is being introduced. Even where the facility conducts symptom screening, it is possible that infected individuals who are asymptomatic or not yet presenting symptoms will be allowed to enter and infect others within the facility.
13. For the foregoing reasons, it is my opinion that that people aged over 50 and people of any age with certain medical conditions (including the high risk conditions listed above) who are living
6 New York Times Editorial Board, No One Deserves to Die of Covid-19 in Jail, N.Y. TIMES (Apr. 23, 2020), https://www.nytimes.com/2020/04/23/opinion/coronavirus-prisons.html .
7 Id. 8 Miranda Bryant, Coronavirus spread at Rikers is a 'public health disaster', says jail's top doctor, THE
GUARDIAN (Apr. 1, 2020), https://www.theguardian.com/us-news/2020/apr/01/rikers-island-jail-coronavirusp u b lic-h ealth-dis aster. 9 Legal Aid Society, Analysis of COVID-19 Infection Rate in NYC Jails (Apr. 3, 2020), h ttp s://legalaidn yc.o rg/wp-content/u plo ads/2020/04/4_ 3_Analy sis-of-COVID-19-In fectio n-Rate-in -NYC-Jails 1.pdf
5

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 7 of 42 PageID 122
in congregate settings such as prisons or jails, with limited ability to physically distance themselve s from others, limited access to adequate hygiene facilities, and who are exposed to potentially infected individuals from the community, are at grave risk of severe illness and death from COVID-19.
14. I have read the declaration of Josh Spickler regarding Favian Busby. I understand that Mr. Busby is currently being treated for diabetes mellitus and hypertension. It is my opinion that he is at high risk of serious illness from COVID-19. As described above, the CDC’s guidelines state that diabetes is an underlying medical condition that puts people of any age at high risk of serious illness from COVID-19. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th day in May 2020 in Nashville, Tennessee. /s/Marie Griffin
Marie Griffin Marie R. Griffin M.D. M.P.H. Department of Health Policy Vanderbilt University Medical Center Village at Vanderbilt 1500 21st Ave Room / Suite 2600 Nashville, Tennessee 37212 (615) 322-2037 marie.griffin@vanderbilt.edu
6

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Exhibit A

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 9 of 42 PageID 124 May 2020

CURRICULUM VITAE

NAME: Marie R. Griffin, MD, MPH

OFFICE ADDRESS: Department of Health Policy

`

Vanderbilt University Medical Center

Village at Vanderbilt

1500 21st Ave South, Suite 2100

Nashville, TN 37212

Marie.griffin@vumc.org

OFFICE PHONE NUM BER: (615) 875-9605 FAX NUM BER: 615-343-0962

LICENSURE AND CERTIFICATION:

State of Tennessee, February 1986

American Board of Internal Medicine, September 1979

American Board of Preventive Medicine, February 1984

EDUCATION:

College

09/68–05/72 Immaculata College, Pennsylvania, A.B.

Professional or Graduate

07/72–06/76 Georgetown University School of Medicine, M.D.

07/81–05/83 Johns Hopkins School of Hygiene and Public Health, M.P.H.

Postgraduate Training

07/76–06/77 Medicine Internship, North Shore University Hospital (Cornell), Manhasset, NY

07/77–06/79 Medicine Residency, Emory University/Grady Memorial Hospitals, Atlanta, GA

07/79–06/81 Epidemic Intelligence Service (EIS) Officer, Centers for Disease Control,

assigned to the New Jersey State Department of Health

07/81–12/82 Andrew W. Mellon Clinical Epidemiology Fellow, The Johns Hopkins Medical

Institutions

ACADEMIC APPOINTMENTS:

07/81–12/82 Instructor, Department of Medicine, Johns Hopkins University School of

Medicine, Baltimore, MD

01/83–06/84 Research Associate, Department of Medical Statistics and Epidemiology, Mayo

Clinic, Rochester, MN

07/84–06/85 Fellow, Internal Medicine, Mayo Clinic and Assistant Professor, Department of

Medicine, Mayo Medical School, Rochester, MN

07/85–10/85 Assistant Professor, Department of Medical Statistics and Epidemiology,

Mayo Clinic, Rochester, MN

01/86–06/90 Assistant Professor, Departments of Preventive Medicine and Medicine,

Vanderbilt University School of Medicine, Nashville, TN

07/90–03/95 Associate Professor, Departments of Preventive Medicine and Medicine,

Vanderbilt University School of Medicine, Nashville, TN

04/95--

Professor, Departments of Health Policy (formerly Preventive Medicine) and

Medicine, Vanderbilt University School of Medicine, Nashville, TN

2002—2018 Staff Physician, GRECC VA Tennessee Valley Healthcare System

2019—

Directorship, Public Health Research and Education

HOSPITAL APPOINTMENTS:

Vanderbilt University Hospital, Nashville, TN

VA Tennessee Valley Healthcare System, Nashville, TN

PROFESSIONAL ORGANIZATIONS:

Member, Society for General Internal Medicine

Member, Society for Epidemiologic Research

Member, American College of Epidemiology

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 10 of 42 PageID 125
PROFESSIONAL ACTIVITIES: Vanderbilt
Patient Care Policy Committee- 1986-8 Faculty Advisory Committee- 1987-8, 2004-8 Institutional Review Board- 1989-92 Women’s Faculty Organization – Executive Board- 1992 Medical Center Task Force on Research Needs- 1992-3 Academic Program Committee- 1993-1997 Chair, Nutrition Education Subcommittee 1993-1997 Chair, Women’s Health Subcommittee 1996-1997 American Cancer Society, Institutional Grant Review Committee 1994-96 Vice Chancellor Faculty Scholar Award Review Committee -1994-96 Promotions and Tenure Committee, School of Medicine 2000-2002 Faculty Senate 2003—2006 Education Portfolio Standards for Promotion 2009 Co-Director, Vanderbilt MPH program 1996-2005 Chair, MPH Curriculum Committee 2005-13 Director, Epidemiology Track, MPH program 2011-2013 Executive Committee MPH Program 2011Search Committee, Chair in Addiction Medicine 2011-2012 Epidemiology PhD Admissions Committee 2011-2014 Search Committee, Chair in Geriatrics 2012-2013 Committee on Appointments and Promotion, Department of Medicine 2012-2014 Faculty Appointments and Promotions Committee, School of Medicine 2012-2014 Faculty Search Committee, Health Policy 2013-2018 Director, MPH Program 2014School of Medicine Honor Code Committee 2014 School of Medicine, Medical School Entry Requirements Committee 2014 Faculty Research Scholars Selection Committee 2014-2019 Joint Post-Graduate Education Programs Committee 2014-2019 School of Medicine, Admissions Committee 2018-2020 Provost Public Health Advisory Taskforce on COVID-19 2020 Department of Health Policy COVID-19 Advisory Panel 2020 National Institute of Medicine/National Academy of Science, Engineering and Medicine: Committee to Review Adverse Consequences of Pertussis and Rubella Vaccines 1990-1991 Invited participant, Workshop on Research Strategies for Assessing Adverse Reactions to Vaccines 1993 Reviewer, DPT Vaccine and Chronic Nervous System Dysfunction, A New Analysis Invited speaker, Forum on Adverse Events Associated with Vaccines 1996 Invited speaker, Committee on Implementation of Antiviral Medication Strategies for an Influenza Pandemic 2007 Clinical Effectiveness Research Innovation Collaborative 2009 Committee to Review Long-Term Health Effects of Antimalarial Drugs 2019-2020 American College of Physicians: Task Force on Adult Immunization, 1991-1996, 1999- 2002 Centers for Disease Control and Prevention: Advisory Committee on Immunization Practices, 1994-99 Invited Participant, Forum on Vaccines and Intussusception, 2000 Invited Participant, Workshop on Antiviral Agents for Pandemic Influenza, 2001
2

Case 2:20-cv-02359 Document 2-3 Filed 05/20/20 Page 11 of 42 PageID 126
Invited Participant, Committee to Review Study Design for Assessing Risk associated with Thimerosol Containing Vaccines, 2001 Presentations to the Advisory Committee on Immunization Practices 2003, 2004 Advisory Committee on Immunization Practices Work Group on RSV 2016Food and Drug Administration: Arthritis Advisory Committee- Invited Speaker 1995 Nonprescription Drugs Advisory Committee – Invited Speaker 2002 Nonprescription Drugs Advisory Committee, 2006—2009 Vaccine and Related Products Advisory Committee Temporary Voting Member 2017 Drug Safety and Risk Management Advisory Committee 2018Centers for Medicaid and Medicare Services: Medicare Evidence Development and Coverage Advisory Committee 2010-2012 ATS/IDSA Community Acquired Pneumonia Guidelines Committee, 2015-2018 American Epidemiologic Society Membership Committee, 2013-17; Chair, 2017; President-Elect 2020 Association of Schools and Program of Public Health MPH Council 2017Council on Education in Public Health accreditation reviewer 2017Study Sections: Ad Hoc Epidemiology study sections 1 and 2 (NIH), NIAID special study section (NIH) on pertussis vaccine trials, March of Dimes, Agency for Health Care Policy & Research, American Teachers of Preventive Medicine, NIDDK special study section on celiac disease 1999, NICHD sp e cia l emphasis panel 2000, CDC K awards 2004, AHRQ CERT centers 2005 Study Section Member 2008-12 Health Care Research Training, Agency for Healthcare Research and Quality (AHRQ) Greenways for Nashville Board Member 2016Ad-hoc journal review: Annals of Internal Medicine, New England Journal of Medicine, Journal of the American Medical Association, American Journal of Epidemiology, American Journal of Cardiology, American Journal of Public Health, Journal of Pediatric Infectious Diseases, Pediatric Infectious Disease Journal, Journal of the American Geriatrics Society, Gastroenterology, Southern Medical Journal, Journal of Clinical Epidemiology, Pediatrics, Cancer, American Journal of Medicine, Epidemiology, Journal General Internal Medicine, Journal of Rheumatology, Arthritis and Rheumatism, Pediatrics, Journal of Infectious Diseases, Vaccine, PlosOne, PlosMedicine International (Invited participant): International Clinical Pharmacology Conference, Yokahama, Japan 1992 International Epidemiology Association, Sydney, Australia, 1993 Workshop on Risk of Major Complications with Individual NSAIDs, Newcastle, Australia, 1993 Taisho International Symposium on Gastroenterology, Hakone, Japan, 1994 International Agency for Research on Cancer (IARC) Review of Nonsteroidal Anti-inflammatory Drugs, Lyon, France, 1997 WHO Vaccines and Biologics Strategic Advisory Group of Experts (SAGE), Geneva, Switzerland, 200 1 WHO Global Vaccine Safety Advisory Committee, Geneva, Switzerland, 2001 First Neonatal Vaccine Workshop, Washington DC 2004 3rd International Congress on Respiratory Viruses Chicago, Ill. April 2004 International Society for Pneumonia and Pneumococcal Disease, Plenary talk, Brazil March 2012 WHO workshop Geneva, Switzerland PCV Meeting: Short and Long-term Impact Evaluation Framework, September, 2013 International Society for Pneumonia and Pneumococcal Disease, Plenary talk, Hyderabad March 2014 Opponent of doctoral research thesis, Tampere, Finland March 2015 Health Research Board of Ireland –International Peer Review of grant June 2015
3

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ACADEMIC OR PROFESSIONAL HONORS: 1981 Andrew W. Mellon Clinical Epidemiology Fellow 1986 Andrew Mellon Foundation New Faculty Award 1987 Burroughs Wellcome Scholar, Pharmacoepidemiology 1989 Fellow, American College of Physicians 1990 Elected to American Epidemiological Society 1994 AAMC Professional Development Seminar for Senior Women in Medicine 2003 Faculty Teaching Award for mentoring post-doctoral students 2004 Ronald D. Mann Best Paper Award, Pharmacoepidemiology and Drug Safety 2005 Elliot Newman Award for Excellence in Clinical Research, VUMC 2006 Grant W Liddle Award for Outstanding Contributions to Research, VUMC 2010 Outstanding Achievement in Healthcare Policy Research Using HCUP Data 2011 Five Star Excellence Award Quality of Doctor Care 2011 Gary D. Friedman Outstanding Paper Award (Kaiser Permanente Division of Research) 2013 American Academy of Physicians 2014 Association for Clinical and Translational Science Distinguished Investigator Award for
Translation from Clinical Use into Public Benefit and Policy 2014 Ronald D. Mann Best Paper Award, Pharmacoepidemiology and Drug Safety (senior author) 2014 Five Star Excellence Award Quality of Doctor Care 2017 Mary Jane Werthan Award for Advancement of Women at Vanderbilt 2019 Endowed Directorship in Public Health Research and Education 2020 Robert Austrian Memorial Lecturer

TEACHING ACTIVITIES: Master of Public Health Program:
Medical students: Medicine residents and students:

1996-2009, Course Director: Epidemiology 1 1996-2006 Course Director: Environmental Health 1996—present, thesis mentor 2007—2014, Course Director: Public Health Practicum 2011—2013 Director, Epidemiology Track 2011—present, Executive Committee 2014—present, Director 2018, Course Director: Public Health Practice 1986-2005, lecturer, Preventive Medicine course 1986-1990, supervise students in outpatient practice 1995, preceptor, Microbial Topics 2006, emphasis program advisor 2013—2014, content advisor research curriculum 2014—2017, research area head, epidemiology section 1990-2010 clinic supervision 1990-2018: inpatient attending, resident didactics

RESEARCH SUPPORT: Current Research support

5R01AG043471-06 (Grijalva)

04/30/2016-05/31/2020

NIH/NIA

$187,190 (NCE)

Opioid Selection and the Risk of Serious Infections in Older Adults

0.60 Calendar

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Long-standing concerns that opioids increase the risk of infections are particularly relevant for older adults, who are commonly affected by pain and are at increased risk for infections. Identifying those opioids with the lowest risk of increasing infections is crucial to informing the selection of analgesics for older adults. Given the high prevalence of opioid use in older adults, determining and quantifying these risks is of great public health interest.

VUMC57393 /HHSF 22301400301T (Griffin) 09/22/2015-09/21/2019

0.60 Calendar

FDA Mini-Sentinel

$169,750

Infrastructure (task order 12) yr 5

The objective of this project is to select and test statistical methods appropriate for use when analyzing

cross-sectional and longitudinal observational healthcare administrative, claims, and clinical data, with

specific attention to clinical laboratory test results data when missing data are expected. Role: Project

PI

VUMC 60868/ HHS2232014000421 (Griffin) 09/29/2016-09/28/2019

0.60 Calendar

Food and Drug Administration

$152,021

Task order Proposal 1164146-Evaluation of the Risk of Neural Tube Defects among Live Births

Exposed to Maternal Prescription Opioids

A retrospective cohort design of pregnant women will be used to study the association of opioid use

during pregnancy and neural tube defects (NTDs). Women will be included in the study if they had

medical and prescription drug coverage and were clinically followed from 90 days before last menstrual

period through delivery and delivered a live-birth. The study population of interest includes all women

who delivered a live-born infant during the time period of 1/1/2001- 12/31/2015 and children born to

these women. Role: Project PI

VUMC 07131 (U50CK000198) (Schaffner) 01/01/2012 – 12/31/2019

5.04 Calendar

CDC

$128,062

EIP Core Continuation Emerging Infections Program/ HPV and ABC

Comprehensive enhanced population-based public health surveillance for laboratory-confirmed

invasive bacterial infections, influenza, encephalitis, human papillomavirus and pre-cancerous lesio n s.

Dr. Griffin is the local lead for the multisite surveillance of HPV-related diseases, HPV-IMPACT.

VUMC 60397 (HHSF22301012T) (Griffin) 09/15/2016 – 09/14/2019

0.36 Calendar

FDA

$19,858

Maintenance and Operation for Medication Exposure in Pregnancy Risk Evaluation Program

(MEPREP)

The Tennessee Medicaid database is routinely linked to birth certificates to allow study of exposures in

pregnancy. FDA has supported this data infrastructure to be available to quickly address safety

concerns relating to drugs and vaccines during pregnancy.

VUMC 64327/ HHSF223201710132C (Griffin) 01/01/2018 - 06/31/2020

0.60 Calendar

Food and Drug Administration

$30,018

A Reusable, Generalizable Method to Link Health Plan Claims Data with the National Death Index Plus

to Examine the Association Between Men

VUMC52910 / (Grijalva)

10/19/2015 - 10/18/2019

0.60 Calendar

Campbell Collaboration

$1,065,405

Campbell Collaboration – Opioid PMR Consortium

Master Service Agreement between Campbell Alliance and VUMC. Scope of Work: PMR 2065-1B,

Contribute to the revision and development of the final study protocol; Actively participate in the

execution of the final study protocol, using available data from the TN Medicaid program and other

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relevant data sources; Actively participate in the review and interpretation of study findings and the drafting of the study reports

1R01CA232516-01A1 (Tindle)

04/01/2019 - 03/31/2024

0.60 Calendar

NCI

$410,528

Metabolism Informed Smoking Treatment in Medicaid and Medicare Patients: The MIST RCT

The goal of this study is to test Metabolism-Informed Smoking Treatment (MIST), a precision approach

that biologically tailors medication to nicotine metabolism, for Medicaid and Medicare (CMS)

beneficiaries in the Mid-South who smoke. This testing will explore whether using information about

speed of nicotine metabolism will help more people successfully quit smoking.

Comple ted Research Support

VUMC42609 /R1306-04869 (Rothman)

03/11/14-03/09/19

PCORI

The Mid-South CDRN Phase II

Conducting research will be the main focus of Phase II. Our CDRN has already collaborated on the

planning and conduct of over 30 different research projects, including projects with CDRNs, PPRNs,

researchers from academic institutions, and the health industry. We are also actively participating in the

PCORI funded pragmatic trial on aspirin dosing, and planned PCORI observational studies on obesity.

Phase II will focus on continued participation in a wide array of research activities including “pre-

research” and complex queries, observation research, and interventional studies.

VUMC 59796 (HHSF22301007) (Griffin)

09/16/2015 – 10/30/2019

FDA

Kawasaki Disease and PCV13 Vaccine Task order

Case reports of children who developed Kawasaki Disease following vaccination was the impetus for

this observational study. Role: Project PI

VUMC 41717 / GR-15-43659 (Griffin)

09/30/2013 – 09/29/2017

CDC

EIP Infrastructure

Dr. Griffin is working with State and CDC partners to build enhanced systems for disease surveillance.

The focus of current activities is on creating a multisite database to monitor pneumonia incidence and

address effectiveness of pneumococcal vaccines in changing the epidemiology of pneumonia. Role:

Project PI

6R01AG043419-04 (Talbot)

07/01/2013 – 06/30/2017

NIH/NIA

Effectiveness of the Influenza Vaccine in the Aging Population

This study is a secondary analysis of an existing database to determine influenza vaccine effectiveness

in older adults. This database, an accumulation of three studies, will be used to determine if the current

methodology of test-negative controls will actually control for the bias of frailty, will determine vaccine

effectiveness in the very old, and will explore if vaccine manufacturing process impacts effectiveness.

VUMC41170 (Griffin)

08/23/2013-08/22/2016

MedImmune

A Case Control Study of the Effectiveness of Q/LAIV Versus Inactive Influenza Vaccine and

No Vaccine in Subjects 2-17 years

VUMC 61474 (Griffin)

05/30/2017- 12/31/2018

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Reagan Udall Foundation IMEDS Queries This investigation uses the IMEDS Query Bundles to establish and maintain the administrative, intellectual, and technical capacity of research partners to participate in a distributed research network and respond to the Queries established by the IMEDS Master Agreement

11-IPA-1110211 (Griffin)

9/1/2011-8/31/2014

CDC

Evaluation of pneumococcal conjugate vaccine-13 on non-invasive Streptococcal pneumon ia d ise a se

in children and adults using national and Tennessee State data.

5P60AR056116-02 (Stein)

8/1/2009-7/31/2013

NIH

No cost extension through 7/31/2015

Vanderbilt Multidisciplinary Clinical Research Center

This project is a multidisciplinary clinical research center in arthritis. Dr. Griffin’s project addresses

comparative safety of biologics and other disease modifying anti-arthritis drugs in rheumatoid arthritis.

Using VA national VA data comparative effectiveness of specific opioids for treatment of pain in

rheumatoid arthritis will be explored.

Thrasher (Grijalva)

5/1/2011-4/31/2013

Thrasher Foundation

This study will examine the role of influenza and other respiratory viruses, and pneumococcus on the

development of several acute respiratory infections in young children living in rural areas of the

Peruvian Andes.

VACREF Protocol: LTPS (CSP#403C) (Griffin, site PI)

9/1/2006-12/31/2013

Merck

Long Term Persistence of Zoster Vaccine (Zostavax) Efficacy in subjects 60 years or older

This project studies the efficacy of the Zoster Vaccine.

5T32 HS013833-07 (Griffin)

7/1/2008-6/30/2013

AHRQ

Vanderbilt Health Services Research Training Program

An institutional career development program, Vanderbilt Health Services Research Training Program.

200-2008-24624 (Griffin)

9/1/2011-12/31/12

RTI (Research Triangle Institute)

Effectiveness of Neuraminidase Inhibitors among Adults

This project will estimate the effectiveness of Neuraminidase Inhibitors among adults.

5UL1 RR024975-03 (Bernard)

9/17/2007-9/21/12

NCRR

The Vanderbilt Institute for Clinical and Translational Research (VICTR)

This project involves the Vanderbilt Institute for Clinical and Translational Research (VICTR).

Role: involvement in training activities

5U18 HS016974-03 (Ray)

9/01/2007-8/31/2012

AHRQ

Vanderbilt Center for Education/Research on Therapeutics

This project encourages optimal therapeutics in Medicaid and Veteran’s Health Administration

Populations, by conducting interdisciplinary projects.

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5U18 P000184-02 (Griffin)

8/1/2008-7/31/2012

Centers for Disease Control and Prevention

Annual Estimates of Influenza Vaccine Effectiveness: Davidson County, TN

Active population-based surveillance for laboratory confirmed influenza in adults and children to

determine medical care visit rates in the county and estimate annual influenza vaccine effectiveness.

1R01 HS018454-01 (Hartert) AHRQ Tools to Reduce Infant RSV A study in the tools to reduce infant RSV morbidity and asthma.

9/30/09-7/31/12

1U18 HS17919-01 (Griffin, site PI)

10/1/2008-9/29/2011

AHRQ

Subcontract with University of Alabama

Safety Assessment of Anti-TNF Agents Used in Autoimmune Disease

Help the AHRQ, the FDA, drug manufacturers, physicians and patients identify those patient groups

who are at increased risk for serious adverse events with biologic therapy.

TS-1494/APTR/CDC (Griffin)

10/1/2008-9/30/2011

APTR

Monitoring Pneumonia and other Pneumococcal Diseases in the United States

Characterize the burden of pneumonia on the US health care system

HHSA290-2005-0042-1-TO2-WA4 (Griffin)

9/1/2008-4/30/2011

AHRQ

Knowledge Gaps in Type 2 Diabetes

Therapeutics: Comparative Effectiveness & Safety of Oral Antidiabetic Drugs

Comparative effectiveness of first line treatments for type 2 diabetes on cardiovascular outcomes.

HHSA290-2005-0042-I-TO2-WA#2 (Griffin through DEcIDE)

9/1/2007-4/30/2011

AHRQ

Multi-Center, Observational Cohort Study to Assess the Cardiovascular Risks of Medications

Prescribed for ADHD

Assess the association between prescription use of medications for ADHD and adverse cardiovascular

events, including sudden death, acute myocardial infarction, stroke and cardiac arrhythmias.

5R01AI063200-05 (Sterling) NIH/NIAI Fluoroquinolone Resistance in M. Tuberculosis This project will analyze fluoroquinolone resistance in M. Tuberculosis

3/1/2006-2/28/2011

K01 (Grijalva)

10/1/07-9/30/10

CDC

Evaluating the Impact of a Large School-Based Influenza Immunization Campaign

This study will be evaluating a large school-based influenza immunization campaign.

5T32 HL007411-30 (Sawyer)

7/1/05-6/30/10

NIHLBI

Cardiovascular Mechanisms: Training in Investigation

This training grant will provide training in the study of the cardiovascular mechanism.

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5R03 AI068099-02 (Williams) NIAID Epidemiology and Clinical Features of Human Coronarvius

2/1/07-1/31/10

CRCoE – 04-CRCOE-002 (Griffin)

10/1/2004-9/30/2009

VA

Tennessee Valley VA Clinical Research Center of Excellence

Infrastructure development for comparative effectiveness research and junior faculty development.

5U01 IP00022 (Edwards)

9/30/04-9/29/09

CDC

Enhanced Surveillance for Newly Vaccine Preventable Diseases

This project performed surveillance for new vaccine preventable diseases.

1RO3 AI068069 (Talbot)

12/1/07-9/30/09

NIAFD

Epidemiology and Clinical Features of Human Coronavirus

This study evaluated epidemiology and the clinical aspects of human coronavirus.

5R03 HS016784-02 (Grijalva)

3/1/2007-2/28/2009

AHRQ

The Impact of the Pneumococcal Conjugate Vaccine on Pneumonia Hospitalizations

Role: Mentor

U50 CCU300860 (Griffin)

9/30/06-9/29/08

APTR

Nationwide Impact of the Pneumococcal Vaccination Programs

This study estimated the burden of invasive and non-invasive pneumococcal diseases related

hospitalizations in the United States and evaluated the overall impact of pneumococcal conjugate

vaccine on hospital admissions for pneumonia.

MedImmune, Inc. (Griffin)

9/14/06-9/13/08

MedImmune

Evaluation of the Knox Count School-based Immunization Program

The major goals of this project were to perform active surveillance for influenza associated illness

among Knox County residents to evaluate the 2006-07 school-based immunization program.

Pfizer (Griffin)

5/1/04-4/30/08

Pfizer

Valdecoxib/coxibs Drug Utilization & Stroke

This study was a retrospective cohort study to determine whether specific NSAIDs, including coxibs,

are associated with an increased risk of ischemic or hemorrhagic stroke

5R01 AI50884 (Hartert)

8/1/03-1/31/08

NIH/NIAID

Dietary antioxidants and Incidence of Adult-Onset Asthma

The overall goal of this project was to investigate the role of oxidative stress in the incidence and

pathogenesis of allergic asthma

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PUBLICATIONS: Articles in refereed journal
1. Griffin MR, Suroweic J, McCloskey D, et al. Foodborne Norwalk virus. Am J Epidemiol 1982;115:178-84.
2. Griffin MR, Miller A, Davis A. Blood culture contamination associated with a radiometric analyzer.J Clin Microbiol 1982;15:567-70.
3. Jones TS, Liang AP, Kilbourne EM, Griffin MR, et al. Morbidity and mortality associated with the July 1980 heat wave in St. Louis and Kansas City, Missouri. JAMA 1982;247:3327-31.
4. Kilbourne EM, Choi K, Jones TS, Field Investigation Team (including Griffin MR). Risk factors for heatstroke. JAMA 1982;247:3332-6.
5. Griffin MR, Dalley E, Fitzpatrick M, Austin SH. Campylobacter gastroenteritis associated with raw clams. J Med Soc NJ 1983;80:607-9.
6. Parkin WE, Marzinsky P, Griffin MR. Foodborne Hepatitis A associated with cheeseburgers. J Med Soc NJ 1983;80:612-5.
7. Bowen GS, Griffin M, Hayne C, Slade J, Schulze TL, Parkin W. Clinical manifestations and descriptive epidemiology of Lyme Disease in New Jersey, 1978 to 1982. JAMA 1984;251:223640.
8. Griffin MR, Opitz JL, Kurland LT, Ebersold MJ, O’Fallon WM. Traumatic spinal cord injury in Olmsted County, Minnesota, 1935-1981. Am J Epidemiol, 1985; 12:884-895.
9. Griffin MR, O’Fallon WM, Opitz JL, Kurland LT. Mortality, survival, and prevalence: traumatic spinal cord injury in Olmsted County, Minnesota, 1935-1981. J Chron Dis 1985; 38:643-53.
10. Griffin MR, Wilson WR, Edwards WD, O’Fallon WM, Kurland LT. Infective endocarditis, Olmsted County, Minnesota, 1950-1981. JAMA 1985; 254:1199-1202.
11. Beard CM, Griffin MR, Offord KP. Risk factors for sudden unexpected cardiac death in young women in Rochester, Minnesota 1960 through 1974. Mayo Clin Proc 1986;61:186-191.
12. Ballard-Barbash R, Griffin MR, Fisher LD, Covalciuc MA, Jiang N. Estrogen receptors in breast cancer: Association with epidemiologic risk factors. Am J Epidemiol 1986;124:77-84.
13. Ballard-Barbash R, Griffin MR, Wold LE, O’Fallon WM. Breast cancer incidence and survival in Rochester, Minnesota, 1935-1982. Mayo Clin Proc 1987; 62:192-8.
14. Ray WA, Griffin MR, Schaffner W, Baugh DK, Melton LJ. Psychotropic drugs and hip fractures. New Engl J Med 1987; 316:363-9.
15. Griffin MR, Bergstralh EJ, Coffey RJ, Beart RW Jr, Melton LJ. Predictors of survival after curative resection of carcinoma of the colon and rectum. Cancer 1987; 60:2318-2324.
16. Griffin MR, Stanson AW, Brown ML, Hauser MF, O’Fallon WM, Anderson HM, Kazmier FJ, Melton LJ. Deep venous thrombosis and pulmonary embolism. Risk of subsequent malignant neoplasms. Arch Intern Med 1987; 147:1907-1911.
17. Jedd MB, Melton LJ, Griffin MR, Kaufman BH, Hoffman AD, Broughton DD, O’Brien PC. Factors associated with infantile hypertrophic pyloric stenosis. Am J Dis Children 1988;142:334-337.
18. Beard CM, Griffin MR, Schwenk NM, Offord KP, Reiman HM. Incidence of malignant bone and joint tumors in Olmsted County, Minnesota, 1935 through 1981. Mayo Clin Proc 1988;63:332336.
19. Jedd MB, Melton LJ, Griffin MR, Kaufman BH, Hoffman AD, Broughton DD, O’Brien PC. T rends in infantile hypertrophic pyloric stenosis in Olmsted County, Minnesota, 1950-84. Paediatric and Perinatal Epidemiol 1988;2:148-157.
20. Griffin MR, Ray WA, Livengood JR, Schaffner W. Risk of Sudden Infant Death Syndrome after immunization with the Diphtheria-Tetanus-Pertussis vaccine. N Engl J Med 1988;319:618-623.
21. Griffin MR, Ray WA, Schaffner W. Nonsteroidal anti-inflammatory drug use and death from peptic ulcer in elderly persons. Annals Intern Med 1988;109: 359-363.
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22. Ray WA, Griffin MR, Downey W, Melton LJ III. Long-term use of thiazide diuretics and risk of hip fracture. Lancet 1989;I:687-690.
23. Ray WA, Griffin MR. Use of Medicaid data for Pharmacoepidemiology. Am J Epidemiol 1989;129:837-849.
24. Ray WA, Griffin MR, Downey, W. Benzodiazepines of long and short elimination half-life and the risk of hip fracture. JAMA 1989;262:3303-3307.
25. Ray WA, Griffin MR, West R, Strand L, Melton LJ III. Incidence of hip fracture in Saskatchewan, Canada, 1976-1985. Am J Epidemiol 1990;131: 502-509.
26. Griffin MR, Ray WA, Fenichel GM, Mortimer EA, Schaffner W. Risk of seizures and encephalopathy after immunization with the diphtheria-tetanus-pertussis vaccine. JAMA 1990;263:1641-1645.
27. Piper JM, Ray WA, Griffin MR, Fought R, Daugherty JR, Mitchel E Jr. Methodologic issues in evaluating expanded Medicaid coverage for pregnant women. Am J Epidemiol 1990;132:561-571.
28. Piper JM, Ray WA, Griffin MR. The effects of Medicaid eligibility expansion on prenatal care and pregnancy outcome JAMA 1990;264:2219-2223.
29. Ray WA, Griffin MR, Baugh DK. Mortality following hip fracture before and after implementatio n o f the prospective payment system. Arch Intern Med 1990;150:2109-2114.
30. Ray WA, Griffin MR, Malcolm E. Cyclic antidepressants and the risk of hip fracture. Arch Intern Med 1991;151:754-756.
31. Griffin MR, Piper JM, Daugherty JR, Snowden M, Ray WA. Nonsteroidal anti-inflammatory drug use and hospitalization for peptic ulcer in elderly persons. Ann Intern Med 1991;114:257-263.
32. Griffin MR, Ray WA, Mortimer EA, Fenichel GM, Schaffner W. Risk of seizures after measlesmumps-rubella immunization. Pediatrics 1991;88:881-885.
33. Piper JM, Ray WA, Daugherty JR, Griffin MR. Corticosteroid use and peptic ulcer disease: the importance of nonsteroidal anti-inflammatory drugs. Ann Intern Med 1991;114:735-740.
34. Wenger JD, Pierce R, Deaver KA, Plikaytis BD, Facklam RR, Broome CV, The Hemophilus Influenza Vaccine Efficacy Study Group (including Griffin MR). Efficacy of Hemophilus influenza type b polysaccharide-diphtheria toxoid conjugate vaccine in US children aged 18-59 months. Lancet 1991;338:395-98.
35. Griffin MR, Taylor JA, Daughtery J, Ray WA. No increased risk for invasive bacterial infection found following diphtheria-tetanus-pertussis immunization. Pediatrics 1992;89:640-642.
36. Shorr RI, Griffin MR, Daugherty JR, Ray WA. Opioid analgesics and the risk of hip fracture in the elderly: codeine and propoxyphene. J Gerontology 1992;47:M111-M115.
37. Ray WA, Griffin MR, Fought RL, Adams ML. Identification of fractures from computerized Medicare files. J Clin Epidemiol 1992;45:703-714.
38. Griffin MR, Ray WA, Fought RL, Melton LJ. Black-White differences in fracture rates. Am J Epidemiol 1992;136:1378-1385.
39. Ray WA, Taylor JA, Meador KG, Lichtenstein MJ, Griffin MR, Fought R, Adams ML, Blazer DG. Reducing antipsychotic drug use in nursing homes: A controlled trial of provider education. Arch Intern Med 1993;153:713-721.
40. Shorr RI, Ray WA, Daugherty JR, Griffin MR. Concurrent use of nonsteroidal anti-inflammatory drugs and oral anticoagulants places elderly persons at high risk for hemorrhagic peptic ulcer disease. Arch Intern Med 1993;153:1665-1670.
41. Shorr RI, Ray WA, Daugherty JR, Griffin MR. Reserpine reconsidered: no association with serio u s peptic ulcer disease. J Gen Intern Med 1993;8:510-512.
42. Cowan LD, Griffin MR, Howson CP, Katz M, Johnston RB, Shaywitz BA, Fineberg HV. Acute encephalopathy and chronic neurological damage after pertussis vaccine. Vaccine 1993;11:1371 1379.
43. Ray WA, Griffin MR, Avorn J. Evaluating drugs after their approval for clinical use. Sounding Board. N Engl J Med 1993;329:2029-2032.
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44. Puett DW, Griffin MR. Nonmedicinal and noninvasive therapies in osteoarthritis of the hip and knee. Annals Intern Med 1994;121:133-140.
45. Lichtenstein MJ, Griffin MR, Cornell JE, Malcolm E, Ray WA. Risk factors for hip fractures occurring in the hospital. Am J Epidemiol 1994;140:830-838.
46. Griffin MR, Daugherty JR, Reed GW, Standaert SM, Hutchins SS, Hutcheson RH, Schaffner W. Immunization coverage among infants enrolled in the Tennessee Medicaid Program. Arch Ped Adol Med; 1995;149:559-564.
47. Smalley WE, Ray WA, Daugherty JR, Griffin MR. Nonsteroidal anti-inflammatory drugs and the incidence of hospitalizations for peptic ulcer disease in elderly persons. Am J Epidemiol; 1995;141:539-545.
48. Smalley WE, Griffin MR, Fought RL, Sullivan L, Ray WA. Effects of a prior-authorization requirement on the use of nonsteroidal nti-inflammatory drugs by Medicaid patients. N Engl J Med; 1995;332:1612-1617.
49. Smalley WE, Griffin MR, Fought RL, Ray WA. Excess costs from gastrointestinal disease associated with nonsteroidal anti-inflammatory drugs. J Gen Intern Med 1996;11:461-469.
50. Burkhart GA, Griffin MR, Ray WA, Brown N, Hammerstrom T, Freiman JP, Farrell S. Risk of angioedema in black and white Medicaid recipients exposed to ACE inhibitors. Pharmacoepidemiol Drug Safety 1996;5:149-154.
51. Griffin MR, Smalley WE. Drugs and ulcers: Clues about mucosal protection from epidemiologic studies. J Clin Gastroenterol 1995;21 (Suppl 1): S113-119.
52. Griffin MR, Brandt KD, Liang MH, Pincus T, Ray WA. Practical management of osteoarthritis. Integration of pharmacologic and nonpharmacologic measures. Arch Fam Med 1995;4:1049-1055.
53. Shorr RI, Ray WA, Daugherty JR, Griffin MR. Individual sulfonylureas and serious hypoglycemia in the elderly. J Am Geriatr Soc 1996;44:751-755.
54. Brown NJ, Ray WA, Snowden M, Griffin MR. Black Americans have an increased rate of angiotensin converting enzyme inhibitor-associated angioedema. Clin Pharmacol Therap 1996;60:8-13.
55. Henry D, Lim LL-Y, Garcia Rodriguez LA, Perez Gutthann S, Carson JL, Griffin MR, Savage R, Logan R, Moride Y, Hawkey C, Hill S, Fries JT. Variability in risk of gastrointestinal complications with individual non-steroidal anti-inflammatory drugs: results of a collaborative meta-analysis. Br Med J 1996:312:1563-1566.
56. Shorr RI, Ray WA, Daugherty JR, Griffin MR. Incidence and Risk Factors for Serious Hypoglycemia in Older Persons Using Insulin or Sulfonylureas. Arch Intern Med 1997;157:1681-1686.
57. Shorr RI, Ray WA, Daugherty JR, Griffin MR. Antihypertensives and the Risk of Serious Hypoglycemia in Older Persons Using Insulin or Sulfonylureas. JAMA 1997;278:40-43.
58. Brown NJ, Snowden M, Griffin MR. Recurrent angiotensin-converting enzyme inhibitor-associated angioedema. JAMA 1997;278:232-233.
59. Cooper WO, Federspiel CF, Griffin MR, Hickson GB. New use of anticonvulsant medications among children enrolled in the Tennessee Medicaid Program. Archives of Pediatraics & Adolescent Medicine. 1997;151 (12): 1242-1246.
60. Neuzil KM, Reed GW, Mitchel EF, Simonsen L, Griffin MR. Impact of Influenza in Acute Cardiopulmonary Hospitalizations in Pregnant women. Am J Epidemiol 1998;148:1094-1102.
61. Ray WA, Taylor JA, Meador KG, Thapa PB, Brown AK, Kajihara HK, Davis C, Gideon P, Griffin MR. A randomized trial of a consultation service to reduce falls in nursing homes. JAMA 1997;278:557-562.
62. Smalley WE, Ray WA, Daugherty JR, Griffin MR. No Association Between Calcium Channel Blocker Use and Confirmed Bleeding Peptic Ulcer Disease. Am J Epidemiol 1998;148:350-354.
63. Brown NB, Griffin MR, Ray WA, Meredith S, Beers MH, Marren J, Robles M, Stergachis A, Wood AJJ, Avorn J. A model for improving medication use in home health care patients. J Am Pharm Assoc 1998;38:696-702.
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64. Neuzil KM, Reed GW, Mitchel EF, Griffin MR. Influenza-associated Morbidity and Mortality in Young and Middle-Aged Women. JAMA 1999;281:901-907.
65. Smalley WE, Ray WA, Daugherty JR, Griffin MR. Nonsteroidal anti-inflammatory drug use and colorectal cancer incidence. Arch Intern Med 1999;159:161-166.
66. Howard KA, Flora J, Griffin MR. Violence Prevention Programs in Schools: State of the Science and Implications for Future Research. Appl Prev Psychol 1999;8:197-215.
67. Hebert P, Reed G, Entman SS, Mitchel EF, Berg C, Griffin MR. Serious maternal morbidity after childbirth: Prolonged hospital stays and readmissions. Obstet Gynecol 1999;94:942-947
68. Griffin MR, Yared A, Ray WA. Nonsteroidal anti-inflammatory drugs and acute renal failure in elderly Persons. Am J Epidemiol 2000;151:488-496.
69. Neuzil K, Mellen BG, Wright PF, Mitchel EF, Griffin MR. The effect of influenza on hospitalizations, outpatient visits and courses of antibiotic in children. N Engl J Med 2000;342:225-231.
70. Hartert TV, Togias A, Mellen BG, Mitchel EF, Snowden MS, Griffin MR. Underutilization of controller and rescue medications among older adults with asthma requiring hospital care. J Am Geriatr Soc 2000;48:651-657.
71. Boyce TG, Mellen BG, Mitchel EF, Wright PF, Griffin MR. Rates of hospitalization for respiratory syncytial virus infection among children enrolled in Medicaid. J Pediatrics 2000;137:865-870.
72. Neuzil KM, Wright PF, Mitchel EF, Griffin MR. The burden of influenza illness in children with asthma and other chronic medical conditions. J Pediatrics 2000; 137:856-864.
73. Stein, M.C., Griffin, MR, Taylor, JA, Pichert, JW, Brandt, KD, Pincus, T. Ray, WA. Educational Program for Nursing Home Physicians and Staff to Reduce Use of Non-Steroidal Anti-inflammatory Drugs Among Nursing Home Residents: A Randomized Controlled Trial. Med Care 2001;39:436445.
74. Ray WA, Stein CM, Byrd V, Shorr R, Pichert JW, Gideon P, Arnold K, Brandt KD, Pincus T, Griffin MR. Educational Program for Physicians to Reduce Use of Non-Steroidal Anti-Inflammatory Drugs Among Community-Dwelling Elderly Persons: A Randomized Controlled Trial. Med Care 2001; 39:425-435.
75. Poehling KA, Speroff T, Dittus RS, Griffin MR, Hickson, GB, Edwards KM. Predictors of influenza virus vaccination status in hospitalized children. Pediatrics 2001,108(6)e99. URL: http://www.pediatrics.org/cgi/content/full/108/6/e99;
76. Neuzil KM, Zhu Y, Griffin MR, Edwards KM, Thompson JM, Tollefson SJ, Wright PF. The burden of interpandemic influenza in children younger than 5 years: A 25-year prospective study. Journal of Infectious Diseases 2002;185:147-152.
77. Griffin MR, Coffey CS, Neuzil KM, Mitchel EF, Wright PF, Edwards KM. Winter viruses: Influenza and respiratory syncytial virus-related morbidity in chronic lung disease. Arch Intern Med 2002;162:1229-1236.
78. Ray WA, Stein CM, Hall K, Daugherty JR, Griffin MR. Non-steroidal anti-inflammatory drugs and risk of serious coronary heart disease: an observational cohort study. Lancet 2002;359:118-123.
79. Perz JF, Craig AS, Coffey CS, Jorgensen DM, Mitchel E, Hall S, Schaffner W, Griffin MR. Changes in antibiotic prescribing for children after a community-wide campaign. JAMA. 2002;287:31033109.
80. Halasa NB, Griffin MR, Zhu Y, Edwards KM. Decreased number of antibiotic prescriptions in officebased settings from 1993 to 1999 in children less than five years of age. Pediatr Infect Dis J 2002;21:1023-8
81. Poehling KA, Griffin MR, Dittus RS, Tang Y-W, Holland, K, Li H, Edwards KM, Bedside Diagnosis of Influenzavirus Infections in Hospitalized Children. Pediatrics. 2002;110:83-88.
82. Smalley W, Stein M, Arbogast PG, Eisen G, Ray WA, Griffin MR. Underutilization of gastroprotective measures in patients receiving nonsteroidal anti-inflammatory drugs. Arthritis a n d Rheumatism 2002;46:2195-2200.
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83. Hartert TV, Speroff T, Togias A, Mitchel EF, Snowden MS, Dittus RS, Griffin MR. Risk factors for repeat hospital care visits for asthma and mortality among a population of older adults with asthma. Annals of Allergy, Asthma & Immunology 2002;89:467-473.
84. Cooper, WO, Griffin MR, Hickson GB, Ray WA. Very early exposure to erythromycin and infantile hypertrophic pyloric stenosis. Arch Ped Adol Med 2002;156:647-650.
85. Cooper, WO, Griffin MR, Hickson GB, Ray WA. Prenatal prescription of macrolide antibio t ics a n d infantile hypertrophic pyloric stenosis. Obstetrics and Gynecol 2002;100:101-106
86. Butler J, BeLue R, Arbogast PG, Daugherty J, Jain MK, Ray WA, Griffin MR. Outpatient adherence to beta-blocker therapy after acute myocardial infarction. J Am Coll Card 2002;40:1589-1595.
87. Ray WA, Daugherty JR, Griffin MR. Lipid-lowering agents and hip fracture. Injury Prevention 2002;8:276-279.
88. Ray WA, Stein CM, Daugherty JR, Hall K, Arbogast PG, Griffin MR. COX-2 selective NANSAIDs and the risk of serious coronary heart disease. Lancet 2002;360:1071-1073.
89. Ellis SE, Coffey CS, Mitchel Jr EF, Dittus RS, Griffin MR. Influenza and Respiratory Syncytial VirusAssociated Morbidity and Mortality in the Nursing Home Population. J Am Geriatr Soc 2003;51:761767.
90. Dunn MK, Misra S, Habermann R, Griffin MR. Pneumococcal vaccination in nursing homes: does policy change practice? JAMDA 2003;4:135-139.
91. Griffin MR, Stein CM, Graham DJ, Daugherty JR, Arbogast PG, Ray WA. High frequency of use o f rofecoxib at greater than recommended doses: cause for concern. Pharmacoepidemiology and Drug Safety. 2004;13:339-343.
92. Hartert TV, Neuzil KM, Shintani A, Mitchel EF, Snowden MS, Wood LB, Dittus RS, Griffin MR. Maternal morbidity and perinatal outcomes among pregnant women with respiratory hospitalizations during influenza season. Am J Obs and Gynecol 2003;189:1705-12.
93. Poehling KA, Szilagyi PG, Edwards KM, Mitchel E, Barth R, Hughes H, Schaffer SJ, Schwartz B, Griffin MR. Streptococcus Pneumoniae-related Illnesses in Young Children: Secular Trends and Regional Variation. Pediatric Infectious Disease Journal 2003; 22:413-418.
94. Neuzil KM, Maynard C, Griffin MR, Heagerty P. Winter respiratory viruses and health care use: a population-based study in the northwest United States. Clinical Infectious Diseases. 2003; 37(2):201-7.
95. Cooper WO, Boyce TG, Wright PF, Griffin MR. Do childhood vaccines have non-specific effects o n mortality? Bull WHO 2003; 81:821-826.
96. Neuzil KM, Coffey CS, Mitchel EF, Griffin MR. Influenza-associated hospitalizations in adults and adolescents with advanced HIV infection. JAIDS: 2003; 34:304-307
97. Butler J, Khadi G, Belue R, Chomsky D, Dittus RS, Griffin M, Wilson JR. Tolerability to β-blocker therapy among heart failure patients in clinical practice. J Card Failure 2003;9:203-209.
98. Kirschke DL, Craig AS, Schaffner W, Daugherty JR, Narramore J, Griffin MR. Childhood immunization rates before and after the implementation of Medicaid managed care. Arch Ped Adoles Med 2004;158:230-235
99. Halasa NB, Griffin MR, Zhu Y, Edwards KM. Differences in antibiotic prescribing patterns for children younger than five years in the three major outpatient settings. J Pediatr 2004;144: 2005.
100. Robinson Cooper CG, Hernanz-Schulman M, Griffin MR, Zhu Y, Gruber W, Edwards KM. Evaluation of anatomic changes in young children with natural rotavirus infection: is intussusception biologically plausible? J Infect Dis.2004; 189:1382-1387.
101. Weinberg GA, Erdman DD, Edwards KM, Hall CB, Walker FJ, Griffin MR, Schwartz B, and the New Vaccine Surveillance Network (NVSN) Study Group. Superiority of Reverse-Transcription Polymerase Chain Reaction to Conventional Viral Culture in the Diagnosis of Acute Respiratory Tract Infections in Children. J Infect Dis 2004;189:706-10.
102. Frisbie B, Tang Y-W, Griffin M, Poehling K, Wright PF, Holland K, Edwards KM. Surveillance of childhood influenza virus infection: what is the best diagnostic method to use for archival samples? J Clin Microbiol 2004; 42:1181-1184.
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103. Iwane MK, Edwards KM, Szilagyi PG, Walker FJ, Griffin MR, Weinberg GA, Coulen C, Poehling KA, Shone LP, Balter S, Hall CB, Erdman DD, Wooten K, Schwartz B. Population-based surveillance for hospitalizations associated with respiratory syncytial virus, influenza virus, and parainfluenza viruses among young children. Pediatrics 2004;113:1758-1764.
104. Roumie CL, Griffin MR. Over-the-counter analgesics in older adults: a call for improved labeling and consumer education. Drugs Aging 2004;21:485-98.
105. Talbot TR, Poehling KA, Harter, TV, Arbogast PG, Halasa NB, Mitchel E, Schaffner W, Craig AS, Edwards KM, Griffin MR. Elimination of racial differences in invasive pneumococcal disease in young children after introduction of the conjugate pneumococcal vaccine. Pediatr Infect Dis J 2004; 23:726-731.
106. Poehling K, LaFleur B, Szilagyi PG, Edwards KM, Mitchel E, Barth R, Schwartz B, Griffin MR. Population-based impact of pneumococcal conjugate vaccine in young children. Pediatrics 2004;114:755-761.
107. Butler J, Arbogast PG, Daugherty J, Jain MK, Ray WA, Griffin MR. Outpatient utilization of angiotensin-converting enzyme inhibitors among heart failure patients after hospital discharge. J Am Coll Card. 2004; 43:2036-43.
108. Talbot TR, Poehling KA, Harters TV, Arbogast PG, Halasa NB, Mitchel E, Schaffner W, Craig AS, Edwards KM, Griffin MR. Reduction in high rates of antibiotic-nonsusceptible invasive pneumococcal disease in Tennessee after introduction of pneumococcal conjugat e va ccin e. Clin Infect Dis. 2004; 39:641-8.
109. Griffin MR, Walker FJ, Iwane MK, Weinberg GA, Staat MA, Erdman DD. Epidemiology of Respiratory infections in young children. Pediatr Infect Dis J 2004;23:S188-S192.
110. Griffin MR, Stein CM, Ray WA. Postmarketing surveillance for drug safety: Surely we can do better. Clin Pharmaco Therapeu 2004;75:491-494.
111. Meltzer MI, Neuzil KM, Griffin MR, Fukuda K. An economic analysis of annual influenza vaccination of children. Vaccine. 2005;23:1004-1014.
112. Eisenberg E, Craig AS, Gautam S, Khalil MM, Shaktour B, Schaffner W, Griffin MR. Beyond screening: Identifying new barriers to early onset group B streptococcal disease prevention. Ped Infect Dis J. 2005;24:520-524.
113. Talbot TR, Poehling KA, Hartert TV, Arbogast PG, Halasa NB, Edwards KM, Schaffner W, Craig AS, Griffin MR. Seasonality of invasive pneumococcal disease: temporal relation to documented influenza and respiratory syncytial viral circulation. Am J Med. 2005 Mar;118(3):285-91.
114. Talbot TR, Hartert TV, Mitchel E, Halasa NB, Arbogast PG, Poehling KA, Schaffner W, Craig AS, Griffin MR. Asthma as a risk factor for invasive pneumococcal disease. N Engl J Med. 2005 May 19;352(20):2082-90.
115. Oxman MN. Levin MJ. Johnson GR. Schmader KE. Straus SE. Gelb LD. Arbeit RD. Simberkoff MS. Gershon AA. Davis LE. Weinberg A. Boardman KD. Williams HM. Zhang JH. Peduzzi PN. Beisel CE. Morrison VA. Guatelli JC. Brooks PA. Kauffman CA. Pachucki CT. Neuzil KM. Betts RF. Wright PF. Griffin MR. Brunell P. Soto NE. Marques AR. Keay SK. Goodman RP. Cotton DJ. Gnann JW Jr. Loutit J. Holodniy M. Keitel WA. Crawford GE. Yeh SS. Lobo Z. Toney JF. Greenberg RN. Keller PM. Harbecke R. Hayward AR. Irwin MR. Kyriakides TC. Chan CY. Chan IS. Wang WW. Annunziato PW. Silber JL. Shingles Prevention Study Group. A vaccine to prevent herpes zoster and postherpetic neuralgia in older adults.[see comment]. [Clinical Trial. Journal Article. Multicenter Study. Randomized Controlled Trial] N Engl J Med. 2005;352(22):2271-84.
116. Williams JV, Crowe, JE, Enriquez R, Minton P, Peebles RS, Hamilton RG, Higgins S, Griffin M, Hartert TV. Human Metapneumovirus infection plays an etiologic role in acute asthma hospitalizations in adults. J Infect Dis. 2005;192:1149-53
117. Poulose BK, Griffin MR, Moore DE, Zhu Y, Smalley W, Richards WO, Wright JK, Melvin W, Holzman MD. National Analysis of Adverse Patient Safety Events in Bariatric Surgery. Am Surg. 2005;71:406-413.
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118. Poulose BK, Griffin MR, Moore DE, Zhu Y, Smalley W, Richards WO, Wright JK, Melvin W, Holzman MD. Risk Factors for Postoperative Mortality in Bariatric Surgery. J Surg Res. 2005;127:1-7.
119. Poulose BK, Holzman MD, Zhu Y, Smalley W, Richards WO, Wright JK, Melvin W, Griffin MR. National Variations in Morbid Obesity and Bariatric Surgery Utilization. J Am Col Surg. 2005;201:77-84.
120. Carroll, KN, Griffin MR, Gebretsadik T, Shintani A, Mitchel E, Hartert TV. Racial differences in asthma morbidity during pregnancy. Obstet Gynecol 2005;106:66-72.
121. Poulose BK, Ray WA, Arbogast PG, Needleman J, Buerhaus PI, Griffin MR, Abumrad NN, Beauchamp RD, Holzman MD. Resident Work Hour Limits and Patient Safety. Annals of Surgery, 2005. 241:847-56.
122. Roumie CL, Halasa N, Edwards K, Griffin MR, Dittus R, Zhu Y, Grijalva CG. Differences in antibiotic prescribing among physicians, residents, and nonphysician clinicians. American Journal of Medicine. 2005; 118:641-8
123. Roumie CL, Arbogast P, Mitchel E; Griffin MR. Prescriptions for chronic high-dose cyclooxygenase2 inhibitors are often inappropriate and potentially dangerous. J Gen Intern Med 2005; 20:879-83.
124. Roumie CL, Halasa NB, Grijalva CG, Edwards, KM, Zhu Y, Dittus RS, Griffin MR. Trends in antibiotic prescribing for adults in the United States—1995 to 2002. J Gen Intern Med 2005;20:697702.
125. Shankar SM, Arbogast PG, Mitchel E, Cooper WO, Wang WC, Griffin MR. Medical care utilization and mortality in sickle cell disease: a population-based study. Am J Hematol. 2005; 80:262-70
126. Carpenter RO, Austin MT, Tarpley JL, Griffin MR, Lomis KD. Work-hour restrictions as an ethical dilemma for residents. Am J Surg. 2006;191:527-532.
127. Butler J, Speroff T, Arbogast P, Newton M, Waitman L, Stiles R, Miller R, Ray W, Griffin M. Improved compliance with quality measures at hospital discharge with a computerized physician order entry system. Am Heart J, 2006; 151:643-53.
128. Grijalva CG, Craig AS, Dupont WD, Bridges CB, Schrag SJ, Iwane MK, Schaffner W, Edwards, KM, Griffin MR. Estimating influenza hospitalizations among children. Emerg Infect Dis. 2006; 12:103-9
129. Venarske DL, Busse WW, Griffin MR, Gebretsadik T, Shintani AK, Minton PA, Peebles RS, Hamilton R, Weisshaar E, Vrtis R, Higgins SB, Hartert TV. The relationship of rhinovirusassociated asthma hospitalizations with inhaled corticosteroids and smoking. J Infect Dis. 2006;193:1536-1543.
130. Poehling KA, Edwards KM, Weinberg GA, Szilagyi P, Staat MA, Iwane MK, Bridges CB, Grijalva CG, Zhu Y, Bernstein DI, Herrera G, Erdman D, Hall CB, Seither R, Griffin MR. The underrecognized burden of influenza in young children. N Engl J Med 2006;355:31-40.
131. Wu P, Griffin MR, Richardson A, Gabbe SG, Wu P, Gambrell MA, Hartert TV. Influenza vaccination during pregnancy: opinions and practices of obstetricians in an urban community. South Med J 2006;99:823-8.
132. Grijalva CG, Poehling KA, Nuorti JP, Zhu Y, Martin SW, Edwards KM, Griffin MR. National impact of universal childhood immunization with pneumococcal conjugate vaccine on outpatient medical care visits in the United States. Pediatrics 2006;118:865-73.
133. Roumie CL, Elasy TA, Greevy R, Griffin MR, Liu X, Stone WJ, Wallston KA, Dittus RS, Alvarex V, Cobb J, Speroff T. Improving blood pressure control through provider education, provider alerts, and patient education: a cluster randomized trial. Ann Intern Med 2006;145:165-75.
134. Whalen U, Griffin MR, Shintani A, Mitchel E, Cruz-Gervis R, Forbes Bl, Hartert TV. Smoking rates among pregnant women in Tennessee, 1990-2001. Prev Med 2006;43;196-199.
135. Enriquez R, Wu P, Griffin MR, Gebretsadik T, Shintani A, Mitchel E, Carroll KN, Hartert TV. Cessation of asthma medication in early pregnancy. Am J Obstet Gynecol 2006;195:149-53.
136. Poehling KA, Talbot TR, Griffin MR, Craig AS, Whitney CG, Zell E, Lexau CA, Thomas AR, Harrison LH, Reingold Al, Hadler JL, Farley MM, Anderson BJ, Schaffner W. Invasive
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pneumococcal disease among infants before and after introduction of pneumococcal conjugate vaccine. JAMA 2006;295;1668-1674. 137. Carpenter RO, Spooner J, Arbogast PG, Tarpley JL, Griffin MR, Lomis KD. Work hours restrictions as an ethical dilemma for residents: a descriptive survey of violation types and frequency. Curr Surg. 2006 Nov-Dec;63(6):448-55. 138. Szilagyi PG, Griffin MR, Shone LP, Barth R, Zhu Y, Schaffer S, Ambrose S, Roy J, Poehling KA, Edwards KM, Walker FJ, Schwartz B, New Vaccine Surveillance Network. The impact of conjugate pneumococcal vaccination on routine childhood vaccination and primary care use in 2 counties. Pediatrics. 2006;118:1394-1402. 139. Shankar SM, Arbogast PG, Mitchel E, Ding H, Wang WC, Griffin MR. Impact of proximity to comprehensive sickle cell center on utilization of healthcare services among children with sickle cell disease. Pediatr Blood Cancer. 2006 Sep 22;Poehling KA, Szilagyi PG, Grijalva CG, Martin SW, LaFleur B, Mitchel E, Barth RD, Nuorti JP, Griffin MR. Reduction of frequent otitis media and pressure-equalizing tube insertions in children after introduction of pneumococcal conjugate vaccine. Pediatrics. 2007;119:707-715. 141. Poehling KA, Szilagyi PG, Grijalva CG, Martin SW, LaFleur B, Mitchel E, Barth RD, Nuorti JP, Griffin MR. Reduction of frequent otitis media and pressure-equalizing tube insertions in children after introduction of pneumococcal conjugate vaccine. Pediatrics. 2007;119:707-715. 142. Grijalva CG, Nuorti JP, Arbogast PG, Martin SW, Edwards KM, Griffin MR. Decline in pneumonia admissions after routine childhood immunization with pneumococcal conjugate vaccine in the USA: a time-series analysis. Lancet. 2007;369:1179-1186. 143. Boord JB, Sharifi M, Greevy RA, Griffin MR, Lee VK, Webb TA. Computer-based insulin infusion protocol improves glycemia control over manual protocol. J Am Med Inform Assoc. 2007; 14:27887 144. Miller EK, Lu X, Erdman DD, Poehling KA, Zhu Y, Griffin MR, Hartert TV, Anderson LJ, Weinberg GA, Hall CB, Iwane MK, Edwards KM, New Vaccine Surveillance Network. Rhinovirus-associated hospitalizations in young children. J Infect Dis. 2007;195:773-781. 145. Grijalva CG, Poehling KA, Edwards KM, Weinberg GA, Staat MA, Iwane MK, Schaffner W, Griffin MR. Accuracy and interpretation of rapid influenza tests in children. Pediatrics;2007;119:e6-11. 146. Enriquez R, Griffin M, Carroll K, Pingsheng W, Cooper W, Gebretsadik T, Dupont W, Mitchel E, Hartert T. Effect of maternal asthma and asthma control on pregnancy and perinatal outcomes. 2007; J Allergy Clin Immunol. 2007;120:625-630. 147. Collins SR, Griffin MR, Arbogast PG, Walsh WF, Rush MR, Carter BS, Dudley J, Cooper WO. T he rising prevalence of gastroschisis and omphalocele in Tennessee. J Pediatr Surg. 2007;42:1221 1224. 148. Halasa NB, Shankar SM, Talbot TR, Arbogast PG, Mitchel EF, Wang WC, Schaffner W, Craig AS, Griffin MR. Incidence of invasive Pneumococcal Disease among individuals with sickle cell disease before and after the introduction of the pneumococcal conjugate vaccine. Clin Infect Dis. 2007;44:1428-1433. 149. Gaba PD, Haley C, Griffin MR, Mitchel E, Warkentin J, Holt E, Baggett P, Sterling TR. Increasing outpatient fluoroquinolone exposure before tuberculosis diagnosis and impact on culture -negative disease. Arch Intern Med. 2007;167:2317-2322. 150. Shibao C, Grijalva CG, Raj SR, Biaggioni I, Griffin MR. Orthostatic hypotension-related hospitalizations in the United States. Am Med. 2007;120:975-980. 151. Grijalva CG, Chung CP, Arbogast PG, Stein CM, Mitchel EF Jr, Griffin MR. Assessment of adherence to and persistence on disease-modifying antirheumatic drugs (DMARDs) in patients with rheumatoid arthritis. Med Care. 2007;45: (10 Suppl 2) S66-S76. 152. Grijalva CG, Weinberg GA, Bennett NM, Staat MA, Craig AS, Dupont WD, Iwane MK, Postema AS, Schaffner W, Edwards KM, Griffin MR. Estimating the undetected burden of influenza hospitalizations in children. Epidemiol Infect 2007;135:951-958.
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153. Ray WA, Chung CP, Stein CM, Smalley WE, Hall K, Arbogast PG, Griffin MR. Risk of peptic ulcer hospitalizations in users of NSAIDs with gastroprotective cotherapy versus coxibs. Gastroenterology. 2007;133:790-798.
154. Lewis EN, Griffin MR, Szilagyi PG, Zhu Y, Edwards KM, Poehling KA. Childhood influenza: number needed to vaccinate to preent 1 hospitalization or outpatient visit. Pediatrics. 2007;120:467-472.
155. Roumie CL, Mitchel E, Gideon PS, Varas-Lorenzo C, Castellsague J, Griffin MR. Validation of ICD9 codes with a high positive predictive value for incident strokes resulting in hospitalization using Medicaid health data. Pharmacoepidemiol Drug Saf. 2008;17:20-6
156. Huizinga MM, Roumie CL, Elasy TA, Murff HJ, Greevy R, Liu X, Speroff T, Griffin M. Changing incident diabetes regiments. Diabetes Care 2007;30:C85.
157. Roumie CL, Mitchel EF, Kaltenbach L, Arbogast PG, Gideon P, Griffin MR. Nonaspirin NSAIDs, Cyclooxygenase 2 Inhibitors, and the Risk for Stroke. Stroke; 2008;39:2037-2045.
158. Carroll KN, Gebretsadik T, Griffin MR, Wu P, Dupont WD, Mitchel EF, Enriquez R, Hartert T. Increasing burden and risk factors for bronchiolitis-related medical visits in infants enrolled in a state health care insurance plan. Pediatrics 2008;122:58-64.
159. Tsai CJ, Griffin MR, Pekka NJ, Grijalva CG. Changing epidemiology of pneumococcal meningitis after the introduction of pneumococcal conjugate vaccine in the United States. Clin Infect Dis. 2008;46:1664-1672.
160. Miller EK, Griffin MR, Edwards KM, Weinberg GA, Szilagyi PG, Staat MA, Iwane MK, Zhu Y, Hall CB, Fairbrother G, Seither R, Erdman D, Lu P, Poehling KA. Influenza burden for children with asthma. Pediatrics. 2008;121:1-8.
161. Carpenter LR, Pont SJ, Cooper WO, Griffin MR, Dudley JA, Arbogast P, Schaffner W, Jones T F . Stool cultures and antimicrobial prescriptions related to infectious diarrhea. J Infect Dis. 2008;197:1709-1712.
162. Eisenberg KW, Szilagyi PG, Fairbrother G, Griffin MR, Staat M, Shone LP, Weinberg GA, Ha ll CB, Poehling KA, Edwards KM, Lofthus G, Fisher SG, Bridges CB, Iwane MK. Vaccine effectiveness against laboratory-confirmed influenza in children 6 to 59 months of age during the 2003-2004 a n d 2004-2005 influenza seasons. Pediatrics 2008;122:911-919.
163. Wu P, Dupont WD, Griffin MR, Carroll KN, Mitchel EF, Gebretsadik T, Hartert TV. Evidence of a causal role of winter virus infection during infancy on early childhood asthma. Am J Respir Crit Care Med 2008;178:1123-1129.
164. Pont SJ, Carpenter LR, Griffin MR, Jones TF, Schaffner W, Dudley JA, Arbogast PG, Cooper WO. Trends in Healthcare usage attributable to diarrhea, 1995-2004. J Pediatr. 2008;153:777-782.
165. Grijalva CG, Chung CP, Stein CM, Gideon PS, Dyer SM, Mitchel EF Jr., Griffin MR. Computerized definitions showed high positive predictive values for identifying hospitalizations for congestive heart failure and selected infections in Medicaid enrollees with rheumatoid arthritis. Pharmacoepidemiol Drug Saf. 2008;17:890-895.
166. Grijalva CG, Griffin MR. Population-based impact of routine infant immunization with pneumococcal conjugate vaccine in the USA. Expert Rev Vaccines. 2008;7:83-95.
167. Daniels TL, Deppen S, Arbogast PG, Griffin MR, Schaffner W, Talbot TR. Mortality rates associated with multidrug—resistant Acinetobacter baumannii infection in surgical intensive care units. Infect Control Hosp Epidemiol. 2008;29:1080-1083.
168. Zaydfudim V, Feurer ID, Griffin MR, Phay JE. The impact of lymph node involvement on survival in patients with papillary and follicular thyroid carcinoma. Surgery 2008;144:1070-1078.
169. Szilagyi PG, Fairbrother G, Griffin MR, Hornung RW, Donauer S, Morrow A, Altaye M, Zhu Y, Ambrose S, Edwards KM, Poehling KA, Lofthus G, Holloway M,
170. Finelli L, Iwane M, Staat MA; New Vaccine Surveillance Network. Influenza vaccine effectiveness among children 6 to 59 months of age during 2 influenza seasons: a case-cohort study. Arch Pediatr Adolesc Med. 2008 Oct;162(10):943-51.
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171. Miller EK, Edwards KM, Weinberg GA, Iwane MK, Griffin MR, Hall CB, Zhu Y, Szilagyi PG, Morin LL, Heil LH, Lu X, Williams JV; New Vaccine Surveillance Network. A novel group of rhinoviruses is associated with asthma hospitalizations. J Allergy Clin Immunol. 2009 Jan;123(1):98-104.
172. Pini TM, Griffin MR, Roumie CL, Huizinga MM, Fowke JH, Greevy R, Liu X, Murff HJ. Use of thiazolidinediones does not affect prostate-specific antigen levels in men with diabetes. Cancer Epidemiol Biomarkers Prev. 2009 Jun;18(6):1937-8.
173. Poehling KA, Talbot HK, Williams JV, Zhu Y, Lott J, Patterson L, Edwards KM, Griffin MR. Impact of a school-based influenza immunization program on disease burden: comparison of two Tennessee counties. Vaccine. 2009 May 5;27(20):2695-700. Epub 2009 Feb 24. PubMed PMID: 19428881.
174. Grijalva CG, Zhu Y, Griffin MR. Evidence of effectiveness from a large county-wide school-based influenza immunization campaign. Vaccine. 2009 May 5;27(20):2633-6. Epub 2009 Feb 24. PubMed PMID: 19428871.
175. Pont SJ, Grijalva CG, Griffin MR, Scott TA, Cooper WO. National rates of diarrhea-associated ambulatory visits in children. J Pediatr. 2009;155(1):56-61. Epub 2009 Apr 25. PubMed PMID: 19394047.
176. Talbot HK, Poehling KA, Williams JV, Zhu Y, Chen Q, McNabb P, Edwards KM, Griffin MR. Influenza in older adults: impact of vaccination of school children. Vaccine. 2009 Mar 18;27(13):1923-7.
177. Carroll KN, Wu P, Gebretsadik T, Griffin MR, Dupont WD, Mitchel EF, Hartert TV. The severitydependent relationship of infant bronchiolitis on the risk and morbidity of early childhood asthma. J Allergy Clin Immunol. 2009 May;123(5):1055-61, 1061.e1.
178. Talbot HK, Crowe JE Jr, Edwards KM, Griffin MR, Zhu Y, Weinberg GA, Szilagyi PG, Hall CB, Podsiad AB, Iwane M, Williams JV; New Vaccine Surveillance Network. Coronavirus infection and hospitalizations for acute respiratory illness in young children. J Med Virol. 2009 May;81(5):853-6. PubMed PMID: 19319948.
179. Hall CB, Weinberg GA, Iwane MK, Blumkin AK, Edwards KM, Staat MA, Auinger P, Griffin MR, Poehling KA, Erdman D, Grijalva CG, Zhu Y, Szilagyi P. The burden of respiratory syncytial virus infection in young children. N Engl J Med. 2009 Feb 5;360(6):588-98.
180. Carroll KN, Wu P, Gebretsadik T, Griffin MR, Dupont WD, Mitchel EF, Hartert TV. Season of infant bronchiolitis and estimates of subsequent risk and burden of early childhood asthma. J Allergy Clin Immunol. 2009 Apr;123(4):964-6
181. Weinberg GA, Hall CB, Iwane MK, Poehling KA, Edwards KM, Griffin MR, Staat MA, Curns AT, Erdman DD, Szilagyi PG; New Vaccine Surveillance Network. Parainfluenza virus infection of young children: estimates of the population-based burden of hospitalization. J Pediatr. 2009 May;154(5):694-9.
182. Miller EK, Edwards KM, Weinberg GA, Iwane MK, Griffin MR, Hall CB, Zhu Y, Szilagyi PG, Morin LL, Heil LH, Lu X, Williams JV; New Vaccine Surveillance Network. A novel group of rhinoviruses is associated with asthma hospitalizations. J Allergy Clin Immunol. 2009 Jan;123(1):98-104.e1.
183. Devasia RA, Blackman A, Gebretsadik T, Griffin M, Shintani A, May C, Smith T, Hooper N, Maruri F, Warkentin J, Mitchel E, Sterling TR. Fluoroquinolone resistance in Mycobacterium tuberculosis. The effect of duration and timing of fluoroquinolone exposure. Am J Respir Crit Care Med 2009;180:365-370.
184. Laine L, Connors L, Griffin MR, Curtis SP, Kaur A, Cannon CP. Prescription rates of protective cotherapy for NSAID users at high GI risk and results of attempts to improve adherence to guidelines. Aliment Pharmacol Ther 2009,30:767-774.
185. Payne DC, Szilagyi PG, Staat MA, Edwards KM, Gentsch JR, Weinberg GA, Hall CB, Curns AT, Clayton H, Griffin MR, Fairbrother G, Parashar UD. Secular variation in United States rotavirus disease rates and serotypes. Pediatr Infec Dis J. 2009;28:1-10.
186. Griffin MR, Braun MM, Bart KJ. What should an ideal vaccine postlicensure safety system be? Am J Pub Health. 2009;99 Suppl 2:S345-50.
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187. Choma NN, Griffin MR, Huang RL, Mitchel EF, Kaltenbach LA, Gideon P, Stratton SM, Roumie CL. An algorithm to identify incident myocardial infarction using Medicaid data. Pharmacoepidemiol Drug Saf. 2009; 29(9);1126-33.
188. Grijalva CB, Nuorti JP, Griffin MR. Antibiotic prescription rates for acute respiratory tract infections in US ambulatory settings. JAMA. 2009;302:758-66.
189. Roumie CL, Choma NN, Kaltenbach L, Mitchel Jr EF, Arbogast PG, Griffin MR. Non-aspirin NSAIDs, cyclooxygenase-2 inhibitors and risk for cardiovascular events-stroke, acute myocardial infarction, and death from coronary heart disease. Pharmacoepidemiol Drug Saf. 2009;18(11):1064-71.
190. Talbot HK, Shepherd BE, Crowe JE Jr, Griffin MR, Edwards KM, Podsiad AB, Tollefson SJ, Wright PF, Williams JV. The pediatric burden of human coronaviruses evaluated for twenty years. Pediatr Infect Dis J. 2009;8:682-687.
191. Grijalva CG, Griffin MR, Nuorti JP, Walter ND. Pneumonia Hospitalizations Among Young Children Before and After Introduction of Pneumococcal Conjugate Vaccine — United States, 1997–2006. MMWR 2009;58:1-4
192. Grijalva CG, Zhou Y, Nuorti JP, Griffin MR Increasing incidence of empyema complicating childhood community-acquired pneumonia in the United States. Clin Infect Dis. 2010 Mar 15;50(6):805-13
193. Zaydfudim V, Whiteside MA, Griffin MR, Feurer ID, Wright JK, Pinson CW. Health Insurance Status Affects Staging and Influences Treatment Strategies in Patients with Hepatocellular Carcinoma. Ann Surg Oncol. 2010 Jun 29.
194. Fairbrother G, Cassedy A, Ortega-Sanchez IR, Szilagyi PG, Edwards KM, Molinari NA, Donauer S, Henderson D, Ambrose S, Kent D, Poehling K, Weinberg GA, Griffin MR, Hall CB, Finelli L, Bridges C, Staat MA; New Vaccine Surveillance Network (NVSN). High costs of influenza: Direct medical costs of influenza disease in young children. Vaccine. 2010 Jul 12;28(31):4913-9.
195. Goins WP, Talbot TR, Schaffner W, Edwards KM, Craig AS, Schrag SJ, Van Dyke MK, Griffin MR. Adherence to perinatal group B streptococcal prevention guidelines. Obstet Gynecol. 2010 Jun;115(6):1217-24.
196. Talbot HK, Williams JV, Zhu Y, Poehling KA, Griffin MR, Edwards KM. Failure of routine diagnostic methods to detect influenza in hospitalized older adults. Infect Control Hosp Epidemiol. 2010 Jul;31(7):683-8.
197. Williams JV, Edwards KM, Weinberg GA, Griffin MR, Hall CB, Zhu Y, Szilagyi PG, Wang CK, Yang CF, Silva D, Ye D, Spaete RR, Crowe JE Jr. Population-based incidence of human metapneumovirus infection among hospitalized children. J Infect Dis. 2010 Jun 15;201(12):1890-8.
198. Simberkoff MS, Arbeit RD, Johnson GR, Oxman MN, Boardman KD, Williams HM, Levin MJ, Schmader KE, Gelb LD, Keay S, Neuzil K, Greenberg RN, Griffin MR, Davis LE, Morrison VA, Annunziato PW; Shingles Prevention Study Group. Safety of herpes zoster vaccine in the shin g le s prevention study: a randomized trial. Ann Intern Med. 2010 May 4;152(9):545-54.
199. Ray WA, Murray KT, Griffin MR, Chung CP, Smalley WE, Hall K, Daugherty JR, Kaltenbach LA, Stein CM. Outcomes with concurrent use of clopidogrel and proton-pump inhibitors: a cohort study. Ann Intern Med. 2010 Mar 16;152(6):337-45.
200. Poehling KA, Light LS, Rhodes M, Snively BM, Halasa NB, Mitchel E, Schaffner W, Craig AS, Griffin MR. Sickle cell trait, hemoglobin C trait, and invasive pneumococcal disease. Epidemiology. 2010 May;21(3):340-6.
201. Grijalva CG, Kaltenbach L, Arbogast PG, Mitchel EF Jr, Griffin MR. Adherence to diseasemodifying antirheumatic drugs and the effects of exposure misclassification on the risk of hospital admission. Arthritis Care Res (Hoboken). 2010 May;62(5):730-4.
202. Fiske CT, Griffin MR, Erin H, Warkentin J, Lisa K, Arbogast PG, Sterling TR.. Black race, sex, and extrapulmonary tuberculosis risk: an observational study. BMC Infect Dis. 2010 Jan 22;10:16.
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203. Hung AM, Crawford DC, Griffin MR, Brown-Gentry K, Lipkowitz MS, Siew ED, Cavanaugh K, Lewis JB, Ikizler TA; AASK Study Group. CRP polymorphisms and progression of chronic kidney disease in African Americans. Clin J Am Soc Nephrol. 2010 Jan;5(1):24-33. Epub 2009 Dec 3.
204. Grijalva CG, Kaltenbach L, Arbogast PG, Mitchel EF Jr, Griffin MR. Initiation of rheumatoid arthritis treatments and the risk of serious infections. Rheumatology (Oxford). 2010 Jan;49(1):82-90.
205. Roumie CL, Huizinga MM, Liu X, Greevy RA, Grijalva CG, Murff HJ, Hung AM, Griffin MR. The effect of incident antidiabetic regimens on lipid profiles in veterans with type 2 diabetes: a retrospective cohort. Pharmacoepidemiol Drug Saf. 2010 Nov 12. [Epub ahead of print] PubMed PMID: 21077108.
206. Grijalva CG, Zhu Y, Simonsen L, Griffin MR. Establishing the baseline burden of influenza in preparation for the evaluation of a countywide school-based influenza vaccination campaign. Vaccine. 2010 Nov 2. [Epub ahead of print] PubMed PMID: 21050905.
207. Huizinga MM, Roumie CL, Greevy RA, Liu X, Murff HJ, Hung AM, Grijalva CG, Griffin MR. Glycemic and weight changes after persistent use of incident oral diabetes therapy: a veterans administration retrospective cohort study. Pharmacoepidemiol Drug Saf. 2010 Nov;19(11):1108-12. PubMed PMID: 20878643.
208. Payne DC, Szilagyi PG, Staat MA, Edwards KM, Gentsch JR, Weinberg GA, Hall CB, Curns AT, Clayton H, Griffin MR, Fairbrother G, Parashar UD. Secular variation in United States rotavirus disease rates and serotypes: implications for assessing the rotavirus vaccination program. Pediatr Infect Dis J. 2009 Nov;28(11):948-53. Erratum in: Pediatr Infect Dis J. 2010 Mar;29(3):287-8. PubMed PMID: 19859013.
209. Grijalva CG, Zhu Y, Simonsen L, Mitchel E, Griffin MR. The population impact of a large schoolbased influenza vaccination campaign. PLoS One. 2010 Nov 30;5(11):e15097. PubMed PMID: 21209872.
210. Wu P, Dupont WD, Griffin MR, Hartert TV. A role for genes and environment in he causal relationship between infant RSV infection and childhood asthma. Am J Respir Crit Care Med. 2 0 1 0 Jan 15;181(2):194-5; author reply 195. PubMed PMID:
211. 20053969. 212. Williams DJ, Cooper WO, Kaltenbach LA, Dudley JA, Kirschke DL, Jones TF, Arbogast PG, Griffin
MR, Creech CB. Comparative Effectiveness of Antibiotic Treatment Strategies for Pediatric Skin and Soft-Tissue Infections. Pediatrics. 2011 Aug 15. [Epub ahead of print] PubMed PMID: 21844058. 213. Staat MA, Payne DC, Donauer S, Weinberg GA, Edwards KM, Szilagyi PG, Griffin MR, Hall CB, Curns AT, Gentsch JR, Salisbury S, Fairbrother G, Parashar UD; the New Vaccine Surveillance Network (NVSN). Effectiveness of Pentavalent Rotavirus Vaccine Against Severe Disease. Pediatrics. 2011 Aug;128(2):e267-e275. Epub 2011 Jul 18. PubMed PMID: 21768317. 214. Ali SA, Gern JE, Hartert TV, Edwards KM, Griffin MR, Miller EK, Gebretsadik T, Pappas T, Lee WM, Williams JV. Real-world comparison of two molecular methods for detection of respiratory viruses. Virol J. 2011 Jun 29;8:332. PubMed PMID: 21714915; PubMed Central PMCID: PMC3154182. 215. Grijalva CG, Zhu Y, Pekka Nuorti J, Griffin MR. Emergence of parapneumonic empyema in the USA. Thorax. 2011 Aug;66(8):663-8. Epub 2011 May 26. PubMed PMID: 21617169. 216. Hung AM, Ikizler TA, Griffin MR, Glenn K, Greevy RA, Grijalva CG, Siew ED, Crawford DC. CRP polymorphisms and chronic kidney disease in the third national health and nutrition examination survey. BMC Med Genet. 2011 May 11;12:65. PubMed PMID: 21569369; PubMed Central PMCID: PMC3119179. 217. Poehling KA, Szilagyi PG, Staat MA, Snively BM, Payne DC, Bridges CB, Chu SY, Light LS, Prill MM, Finelli L, Griffin MR, Edwards KM; New Vaccine Surveillance Network. Impact of maternal immunization on influenza hospitalizations in infants. Am J Obstet Gynecol. 2011 Jun;204(6 Su p p l 1):S141-8. Epub 2011 Feb 23.PubMed PMID: 21492825; PubMed Central PMCID: PMC3111909.
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218. Dossett LA, Riesel JN, Griffin MR, Cotton BA. Prevalence and implications of preinjury warfarin use: an analysis of the National Trauma Databank. Arch Surg. 2011 May;146(5):565-70. Epub 2011 Jan 17. PubMed PMID: 21242422.
219. Talbot HK, Griffin MR, Chen Q, Zhu Y, Williams JV, Edwards KM. Effectiveness of seasonal vaccine in preventing confirmed influenza-associated hospitalizations in community dwelling older adults. J Infect Dis. 2011 Feb 15;203(4):500-8. Jan 10. PubMed PMID: 21220776; PubMed Central PMCID: PMC3071231.
220. Grijalva CG, Chen L, Delzell E, Baddley JW, Beukelman T, Winthrop KL, Griffin MR, Herrinton LJ, Liu L, Ouellet-Hellstrom R, Patkar NM, Solomon DH, Lewis JD, Xie F, Saag KG, Curtis JR. Initiation of tumor necrosis factor-α antagonists and the risk of hospitalization for infection in patients with autoimmune diseases. JAMA. 2011 Dec 7;306(21):2331-9. Epub 2011 Nov 6. PubMed PMID: 22056398.
221. Iwane MK, Prill MM, Lu X, Miller EK, Edwards KM, Hall CB, Griffin MR, Staat MA, Anderson LJ, Williams JV, Weinberg GA, Ali A, Szilagyi PG, Zhu Y, Erdman DD. Human rhinovirus species associated with hospitalizations for acute respiratory illness in young US children. J Infect Dis. 2011 Dec;204(11):1702-10. Epub 2011 Oct 19. PubMed PMID: 22013207.
222. Staat MA, Griffin MR, Donauer S, Edwards KM, Szilagyi PG, Weinberg GA, Hall CB, Prill MM, Chaves SS, Bridges CB, Poehling KA, Fairbrother G. Vaccine effectiveness for laboratoryconfirmed influenza in children 6-59 months of age, 2005-2007. Vaccine. 2011 Nov 8;29(48):900511. Epub 2011 Sep 21. PubMed PMID: 21945256.
223. Herrinton LJ, Curtis JR, Chen L, Liu L, Delzell E, Lewis JD, Solomon DH, Griffin MR, OuelletHellstom R, Beukelman T, Grijalva CG, Haynes K, Kuriya B, Lii J, Mitchel E, Patkar N, Rassen J, Winthrop KL, Nourjah P, Saag KG. Study design for a comprehensive assessment of biologic safety using multiple healthcare data systems. Pharmacoepidemiol Drug Saf. 2011 Nov;20(11):1199-209. Doi:10.1002/pds.2196. Epub 2011 Sep 15. PubMed PMID: 21919113.
224. Griffin MR, Monto AS, Belongia EA, Treanor JJ, Chen Q, Chen J, Talbot HK, Ohmit SE, Coleman LA, Lofthus G, Petrie JG, Meece JK, Hall CB, Williams JV, Gargiullo P, Berman L, Shay DK; U.S. Flu-VE Network. Effectiveness of non-adjuvanted pandemic influenza A vaccines for preventing pandemic influenza acute respiratory illness visits in 4 U.S. communities. PLoS One. 2011;6(8):e23085. Epub 2011 Aug 12. PubMed PMID: 21857999; PubMed Central PMCID: PMC3155536.
225. Kawai VK, Grijalva CG, Arbogast PG, Curtis JR, Solomon DH, Delzell E, Chen L, Ouellet-Hellstrom R, Herrinton L, Liu L, Mitchel EF Jr, Stein CM, Griffin MR. Changes in cotherapies after initiation of disease-modifying antirheumatic drug therapy in patients with rheumatoid arthritis. Arthritis Care Res (Hoboken). 2011 Oct;63(10):1415-24. PubMed PMID: 22121511; PubMed Central PMCID: PMC3227007.
226. Greevy RA, Huizinga MM, Roumie CL, Grijalva CG, Murff H, Liu X, Griffin MR. Comparisons of persistence and durability among three oral antidiabetic therapies using electronic prescription-fill data:The impact of adherence requirements and stockpiling. Clinical Pharmacology & Therapeutics 2011;90:813-819
227. Greevy RA Jr, Grijalva CG, Roumie CL, Beck C, Hung AM, Murff HJ, Liu X, Griffin MR. Reweighted Mahalanobis distance matching for cluster-randomized trials with missing data. Pharmacoepidemiol Drug Saf. 2012 May;21 Suppl 2:148-54. doi: 10.1002/pds.3260. PubMed PMID: 22552990.
228. Ortega-Sanchez IR, Molinari NA, Fairbrother G, Szilagyi PG, Edwards KM, Griffin MR, Cassedy A, Poehling KA, Bridges C, Staat MA. Indirect, out-of-pocket and medical costs from influenza-related illness in young children. Vaccine. 2012 Jun 13;30(28):4175-81. Epub 2012 Apr 27. PubMed PMID: 22546332.
229. Treanor JJ, Talbot HK, Ohmit SE, Coleman LA, Thompson MG, Cheng PY, Petrie JG, Lofthus G, Meece JK, Williams JV, Berman L, Breese Hall C, Monto AS, Griffin MR, Belongia E, Shay DK; for the US Flu-VE Network. Effectiveness of Seasonal Influenza Vaccines in the United States Dur ing
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a Season With Circulation of All Three Vaccine Strains. Clin Infect Dis. 2012 Oct;55(7):951-959. Epub 2012 Jul 25. PubMed PMID: 22843783. 230. Self WH, McNaughton CD, Grijalva CG, Zhu Y, Chappell JD, Williams JV, Talbot HK, Shay DK, Griffin MR. Diagnostic performance of the BinaxNow Influenza A&B rapid antigen test in ED patients. Am J Emerg Med. 2012 Jul 13. [Epub ahead of print] PubMed PMID: 22795995. 231. Carroll KN, Griffin MR, Edwards KM, Ali A, Zhu Y, Iwane MK, Szilagyi PG, Staat MA, Stevens TP, Hall CB, Williams JV, Hartert TV. Adherence to Guidelines for Respiratory Syncytial Virus Immunoprophylaxis among Infants with Prematurity or Chronic Lung Disease in Three United States Counties. Pediatr Infect Dis J. 2012 Jul 3. [Epub ahead of print] PubMed PMID: 22760537. 232. Fiske CT, Griffin MR, Mitchel E, Sterling TR, Grijalva CG. Accuracy of pharmacy and codeddiagnosis information in identifying tuberculosis in patients with rheumatoid arthritis. Pharmacoepidemiol Drug Saf. 2012 Jun;21(6):666-9. doi:10.1002/pds.3243. Epub 2012 Apr 24. PubMed PMID: 22532509; PubMed Central PMCID: PMC3371104. 233. Widmer K, Zhu Y, Williams JV, Griffin MR, Edwards KM, Talbot HK. Rates of hospitalizations for respiratory syncytial virus, human metapneumovirus, and influenza virus in older adults. J Infect Dis. 2012 Jul 1;206(1):56-62. Epub 2012 Apr 23. PubMed PMID: 22529314; PubMed Central MCID: PMC3415933. 234. Self WH, Grijalva CG, Zhu Y, Talbot HK, Jules A, Widmer KE, Edwards KM, Williams JV, Shay DK, Griffin MR. Emergency department visits for influenza A(H1N1)pdm09, Davidson County, Tennessee, USA. Emerg Infect Dis. 2012 May;18(5):863-5. doi: 10.3201/eid1805.111233. PubMed PMID: 22516043; PubMed Central PMCID: PMC3358080. 235. Roumie CL, Liu X, Choma NN, Greevy RA, Hung AM, Grijalva CG, Griffin MR. Initiation of sulfonylureas versus metformin is associated with higher blood pressure at one year. Pharmacoepidemiol Drug Saf. 2012 May;21(5):515-23. doi: 10.1002/pds.3249. Epub 2012 Mar 19. PubMed PMID: 22431419. 236. Jules A, Grijalva CG, Zhu Y, Talbot KH, Williams JV, Dupont WD, Edwards KM, Schaffner W, Shay DK, Griffin MR. Estimating age-specific influenza-related hospitalization rate during the pandemic (H1N1) 2009 in Davidson Co, TN. Influenza Other Respi Viruses. 2012 May;6(3):e63-71. doi: 10.1111/j.1750-2659.2012.00343.x. Epub 2012 Feb 23. PubMed PMID: 22360812. 237. Hung AM, Roumie CL, Greevy RA, Liu X, Grijalva CG, Murff HJ, Ikizler TA, Griffin MR. Comparative effectiveness of incident oral antidiabetic drugs on kidney function. Kidney Int. 2012 Apr;81(7):698-706. doi: 10.1038/ki.2011.444. Epub 2012 Jan 18. PubMed PMID: 22258320; PubMed Central PMCID: PMC3306005. 238. Prill MM, Iwane MK, Edwards KM, Williams JV, Weinberg GA, Staat MA, Willby MJ, Talbot HK, Hall CB, Szilagyi PG, Griffin MR, Curns AT, Erdman DD; New Vaccine Surveillance Network. Human coronavirus in young children hospitalized for acute respiratory illness and asymptomatic controls. Pediatr Infect Dis J. 2012 Mar;31(3):235-40. PubMed PMID: 22094637; PubMed Central PMCID: PMC3288315. 239. Kawai VK, Stein CM, Perrien DS, Griffin MR. Effects of anti-tumor necrosis factor α agents on bone. Curr Opin Rheumatol. 2012 Sep;24(5):576-85. PubMed PMID: 22810364. 240. Roumie CL, Hung AM, Greevy RA, Grijalva CG, Liu X, Murff HJ, Elasy TA, Griffin MR. Comparative Effectiveness of Sulfonylurea and Metformin Monotherapy on Cardiovascular Events in Type 2 Diabetes Mellitus. Ann Intern Med. 2012 Nov;6:157(9):601-610. PMID:23128859. 241. Solomon DH, Rassen JA, Kuriya B, Chen L, Harrold LR, Graham DJ, Lewis JD, Lii J, Liu L, Griffin MR, Curtis JR. Heart failure risk among patients with rheumatoid arthritis starting a TNF antagonist. Ann Rheum Dis. 2013 Nov 1;72(11):1813-8. [Epub ahead of print] PubMed PMID: 23155221. 242. Schmader KE, Oxman MN, Levin MJ, Johnson G, Zhang JH, Betts R, Morrison VA, Gelb L, Guatelli JC, Harbecke R, Pachucki C, Keay S, Menzies B, Griffin MR, Kauffman C, Marques A, Toney J, Keller PM, Li X, Chan IS, annunziato P, shingles Prevention Study Group. Persistence of the efficacy of zoster vaccine in the shingles prevention study and the short-term persistence substudy. Clin Infect Dis 2012 Nov 15;55(10):1320-8. PMID: 22828595.
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243. Kawai VK, Grijalva CG, Arbogast PG, Curtis JR, Solomon DH, Delzell E, Chen L, Ouellet-Hellstrom R, Herrinton L, Liu L, Mitchell EF Jr, Stein CM, Griffin MR. Initiation of Tumor Necrosis Factor Alpha (TNFα) antagonists and risk of fractures in patients with selected rheumatic and autoimmune diseases. Arthritis Care Res (Hoboken). 2012 Dec 21. doi: 10.1002/acr.21937. [Epub ahead of print] PubMed PMID: 23281339; PubMed Central PMCID: PMC3631448.
244. Herrinton LJ, Liu L, Chen L, Harrold LR, Raebel MA, Curtis JR, Griffin MR, Solomon DH, Saag KG, Lewis JD. Association between anti-TNF-α therapy and all-cause mortality. Pharmacoepidemiol Drug Saf. 2012 Dec;21(12):1311-20. doi: 10.1002/pds.3354. Epub 2012 Oct 15. PubMed PMID: 23065964; PubMed Central PMCID: PMC3565563.
245. Halasa NB, Grijalva CG, Arbogast PG, Talbot TR, Craig AS, Griffin MR, Schaffner W. Near Complete Elimination of the Seven Valent Pneumococcal Conjugate Vaccine Serotypes in Tennessee. Pediatr Infect Dis J. 2013 Jan 23. [Epub ahead of print] PubMed PMID: 23348816.
246. Poehling KA, Edwards KM, Griffin MR, Szilagyi PG, Staat MA, Iwane MK, Snively BM, Suerken CK, Hall CB, Weinberg GA, Chaves SS, Zhu Y, McNeal MM, Bridges CB.The burden of influenza in young children, 2004-2009. Pediatrics. 2013Feb;131(2):207-16. doi: 10.1542/peds.2012-1255. Epub 2013 Jan 6. PubMed PMID:23296444.
247. Haynes K, Beukelman T, Curtis JR, Newcomb C, Herrinton LJ, Graham DJ, Solomon DH, Griffin MR, Chen L, Liu L, Saag KG, Lewis JD; on behalf of the SABER Collaboration. Tumor necrosis factor α inhibitor therapy and cancer risk in chronic immune-mediated diseases. Arthritis Rheum. 2013 Jan;65(1):48-58. doi:10.1002/art.37740. PubMed PMID: 23055441.
248. Chien YW, Vidal JE, Grijalva CG, Bozio C, Edwards KM, Williams JV, Griffin MR, Verastegui H, Hartinger SM, Gil AI, Lanata CF, Klugman KP. Density interactions among Streptococcus pneumoniae, Haemophilus influenzae and Staphylococcus aureus in the nasopharynx of young Peruvian children. Pediatr Infect Dis J. 2013 Jan;32(1):72-7. PMCID: PMC3525793.
249. Edwards KM, Zhu Y, Griffin MR, Weinberg GA, Hall CB, Szilagyi PG, Staat MA, Iwane M, Prill MM, Williams JV; New Vaccine Surveillance Network. Burden of human metapneumovirus infection in young children. N Engl J Med. 2013 Feb 14;368(7):633-43. doi: 10.1056/NEJMoa1204630. PubMed PMID: 23406028; PubMed Central PMCID: PMC3662802.
250. Talbot HK, Zhu Y, Chen Q, Williams JV, Thompson MG, Griffin MR. Effectiveness of influenza vaccine for preventing laboratory-confirmed influenza hospitalizations in adults, 2011-2012 influenza season. Clin Infect Dis. 2013 Jun;56(12):1774-7. doi: 10.1093/cid/cit124. Epub 2013 F eb 28. PubMed PMID: 23449269.
251. Sundaram ME, Talbot HK, Zhu Y, Griffin MR, Spencer S, Shay DK, Coleman LA. Vitamin D is not associated with serologic response to influenza vaccine in adults over 50 years old. Vaccine. 2 0 13 Apr 12;31(16):2057-61. doi: 10.1016/j.vaccine.2013.02.028. Epub 2013 Feb 28. PubMed PMID: 23453766.
252. Griffin MR. Influenza vaccination: a 21st century dilemma. S D Med. 2013;Spec no:110-8. Review. PubMed PMID: 23444601.
253. Iwane MK, Chaves SS, Szilagyi PG, Edwards KM, Hall CB, Staat MA, Brown CJ, Griffin MR, Weinberg GA, Poehling KA, Prill MM, Williams JV, Bridges CB. disparities between black and white children in hospitalizations associated with acute respiratory illness and laboratory-confirmed influenza and respiratory syncytial virus in 3 US counties--2002-2009. Am J Epidemiol. 2013 Apr 1;177(7):656-65. doi: 10.1093/aje/kws299. Epub 2013 Feb 22. PubMed PMID: 23436899.
254. Hung AM, Roumie CL, Greevy RA, Liu X, Grijalva CG, Murff HJ, Griffin MR. Kidney function decline in metformin versus sulfonylurea initiators: assessment of time-dependent contribution of weight, blood pressure, and glycemic control. Pharmacoepidemiol Drug Saf. 2013 June;22(6):62331. PubMed PMID: 23592561.
255. Niesner K, Murff HJ, Griffin MR, Wasserman B, Greevy R, Grijalva CG, Roumie CL. Validation of VA Administrative Data Algorithms for Identifying Cardiovascular Disease Hospitalization. Epidemiology. 2013 Mar;24(2):334-335.PubMed PMID: 23377095.
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256. Morrison VA, Oxman MN, Levin MJ, Schmader KE, Guatelli JC, Betts RF, Gelb LD, Pachucki CT , Keay SK, Menzies B, Griffin MR, Kauffman CA, Marques AR, Toney JF, Simberkoff MS, Serrao R, Arbeit RD, Gnann JW, Greenberg RN, Holodniy M, Keitel WA, Yeh SS, Davis LE, Crawford GE, Neuzil KM, Johnson GR, Zhang JH, Harbecke R, Chan IS, Keller PM, Williams HM, Boardman KD, Silber JL, Annunziato PW; for the Shingles Prevention Study Group. Safety of Zoster Vaccine in Elderly Adults Following Documented Herpes Zoster. J Infect Dis. 2013 May 31. [Epub ahead of print] PubMed PMID: 23633406.
257. Grijalva CG, Griffin MR, Edwards KM, Williams JV, Gil AI, Verastegui H, Hartinger Sm, Vidal JE, Klugman KP, Lanata CF. The study of respiratory pathogens in Andean Children. Int J Epidemiol. 2013 June 14. (Epub ahead of print) PMID: 23771719.
258. Griffin MR, Zhu Y, Moore MR, Whitney CG, Grijalva CG. U.S. hospitalizations for pneumonia after a decade of pneumococcal vaccination. N Engl J Med. 2013 Jul 11;369(2):155-63. doi: 10.1056/NEJMoa1209165.
259. Griffin MR, High-dose non-steroidal anti-inflammatories: painful choices. Lancet. 2013 Aug 31;382(9894):746-8. Pubmed PMID: 23726393.
260. Hall CB, Weinberg GA, Blumkkin AK, Edwards KM, Staat MA, Schultz AF, Poehling KA, Szilagyi PG, Griffin MR, Williams JV, Zhu Y, Grijalva CG, Prill MM, Iwane MK. Respiratory syncytial virusassociated hospitalizations among children less than 24 months of age, Pediatrics. 2013 Aug;132(2):e341-8. PubMed PMID: 23878043.
261. Solomon DH, Curtis JR, Saag KG, Lii J, Chen L, Harrold LR, Herrinton LJ, Graham DJ, Kowal MK, Kuriya B, Liu L, Griffin MR, Lewis JD, Rassen JA. Cardiovascular risk in rheumatoid arthritis: comparing TNF-α blockade with nonbiologic DMARDs. Am J Med. 2013 Aug;126(8):730.e9730.e9-730.e17. PUBMed PMID: 23885678.
262. Self WH, Grijalva CG, Zhu Y, McNaughton CD, Barrett TW, Collins SP, Storrow AB, Griffin MR. Rates of emergency department visits due to pneumonia in the United States, July 2006- June 2009. Acad Emerg Med. 2013 Sep;20(9):957-60. PubMed PMI: 24033659.
263. Self, WH, Griffin MR, Zhu Y, Dupont WD, Barrett TW, Grijalva CG. The high burden of pneumo n ia on US emergency departments during the 2009 influenza pandemic. J Infect. 2014 Feb;68(2):15664. PubMed PMID: 24140066.
264. Griffin MR, Grijalva CG. Hospitalizations after a decade of pneumococcal vaccination. N Engl J Med. 2013 Oct 24;369(17):1662-3. PubMed PMID: 24152270.
265. Schmittdiel JA, Adams SR, Segal J, Griffin MR, Roumie CL, Ohnsorg K, Grant RW, O’Connor PJ. Novel Use and Utility of Integrated Electronic health Records to Assess Rates of Prediabetes Recognition and Treatment: Brief Report From an Integrated Electronic Health Records Pilot Study. Diabetes Care. 2013 Nov 22. PubMed PMID: 24271190.
266. Budge PJ, Griffin MR, Edwards KM, Williams JV, Verastegui H, Hartinger Sm, Johnson M, Klemenc JM, Zhu Y, Gil AI, Lanata CF, Grijalva CG; For the RESPIRA-PERU Group. A household-based study of acute viral respiratory illnesses in Andean children. Pediatr Infect Dis J. 2013 Dec 30. PubMed PMID: 24378948.
267. Widmer K, Griffin MR, Zhu Y, Williams JV, Talbot HK. Respiratory syncytial virus- and human metapneumovirus-associated emergency department and hospital burden in adults. Influenza Other Respir Viruses. 2014 May;8(3):347-52. doi: 10.1111/irv.12234. Epub 2014 F eb 7. PubMed PMID: 24512531; PubMed Central PMCID: PMC3984605.
268. Cooper WO, Cheetham TC, Li DK, Stein CM, Callahan ST, Morgan TM, Shintani AK, Chen N, Griffin MR, Ray WA. Brief report: Risk of adverse fetal outcomes associated with immunosuppressive medications for chronic immune-mediated diseases in pregnancy. Arthritis Rheumatol. 2014 Feb;66(2):444-50. doi:10.1002/art.38262. PubMed PMID: 24504818; PubMed Central PMCID: PMC4077326.
269. Grijalva CG, Griffin MR, Edwards KM, Williams JV, Gil AI, Verastegui H, Hartinger SM, Vidal JE, Klugman KP, Lanata CF. The role of influenza and parainfluenza infections in nasopharyngeal pneumococcal acquisition among young children. Clin Infect Dis. 2014 May;58(10):1369-76. doi:
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10.1093/cid/ciu148. Epub 2014 Mar 12. PubMed PMID: 24621951; PubMed Central PMCID: PMC4001292. 270. Budge PJ, Griffin MR, Edwards KM, Williams JV, Verastegui H, Hartinger SM, Mäusezahl D, Johnson M, Klemenc JM, Zhu Y, Gil AI, Lanata CF, Grigalva CG; RESPIRA PERU Group. Impact of home environment interventions on the risk of influenza-associated ARI in Andean children: observations from a prospective household-based cohort study. PLoS One. 2014 Mar 12;9(3):e91247. doi: 10.1371/journal.pone.0091247. eCollection 2014. PubMed PMID: 24622044; PubMed Central PMCID: PMC3951509. 271. Grijalva CG, Griffin MR, Edwards KM, Johnson M, Gil AI, Verástegui H, Lanata CF, Williams JV. Concordance between RT-PCR-based detection of respiratory viruses from nasal swabs collected for viral testing and nasopharyngeal swabs collected for bacterial testing. J Clin Virol. 2014 Jul;60(3):309-12. doi:10.1016/j.jcv.2014.04.011. Epub 2014 Apr 29. PubMed PMID: 24875136; PubMed Central PMCID: PMC4055503. 272. Roumie CL, Greevy RA, Grijalva CG, Hung AM, Liu X, Murff HJ, Elasy TA, Griffin MR. Association between intensification of metformin treatment with insulin vs sulfonylureas and cardiovascular events and all-cause mortality among patients with diabetes. JAMA. 2014 Jun 11;311(22):2288-96. doi: 10.1001/jama.2014.4312. PubMed PMID: 24915260. 273. Griffin MR, Mitchel E, Moore MR, Whitney CG, Grijalva CG; Centers for Disease Control and Prevention (CDC). Declines in pneumonia hospitalizations of children aged <2 years associated with the use of pneumococcal conjugate vaccines - Tennessee, 1998-2012. MMWR Morb Mortal Wkly Rep. 2014 Nov 7;63(44):995-8. PMID: 25375070. 274. Murff HJ, Roumie CL, Greevy RA, Grijalva CG, Hung AH, Liu X, Griffin MR. Thiazolidinedione and Metformin Use and the Risk of Benign Prostate Hyperplasia in Veterans with Diabetes Mellitus. J Mens Health. 2014 Dec 1;11(4):157-162. PMID: 25798210; PubMed Central PMCID: PMC 4364420. 275. Lindegren ML, Griffin MR, Williams JV, Edwards KM, Zhu Y, Mitchel E, Fry AM, Schaffner W, Talbot HK. Antiviral treatment among older adults hospitalized with influenza, 2006-2012. PLoS One. 2015 Mar 25;10(3):e0121952. doi: 10.1371/journal.pone.0121952. eCollection 2015. PMID: 25807314; PubMed Central PMCID: PMC4373943. 276. Jules A, Grijalva CG, Zhu Y, Talbot HK, Williams JV, Poehling KA, Chaves SS, Edwards KM, Schaffner W, Shay DK, Griffin MR. Influenza-related hospitalization and ED visits in children less than 5 years: 2000-2011. Pediatrics. 2015 Jan;135(1):e66-74. doi: 10.1542/peds.2014-1168. Ep u b 2014 Dec 8. PMID: 25489015; PubMed Central PMCID: PMC4279064. 277. Morrison VA, Johnson GR, Schmader KE, Levin MJ, Zhang JH, Looney DJ, Betts R, Gelb L, Guatelli JC, Harbecke R, Pachucki C, Keay S, Menzies B, Griffin MR, Kauffman CA, Marques A, Toney J, Boardman K, Su SC, Li X, Chan IS, Parrino J, Annunziato P, Oxman MN; Shingles Prevention Study Group. Long-term persistence of zoster vaccine efficacy. Clin Infect Dis. 2015 Mar 15;60(6):900-9. doi: 10.1093/cid/ciu918. Epub 2014 Nov 20. PMID: 25416754; PubMed Central PMCID: PMC4357816. 278. Chen Q, Griffin MR, Nian H, Zhu Y, Williams JV, Edwards KM, Talbot HK. Influenza vaccine prevents medically attended influenza-associated acute respiratory illness in adults aged ≥50 years. J Infect Dis. 2015 Apr 1;211(7):1045-50. doi: 10.1093/infdis/jiu578. Epub 2014 Oct 21. PMID: 25336724; PubMed Central PMCID: MC4432432. 279. Oliveira DB, Iwane MK, Prill MM, Weinberg GA, Williams JV, Griffin MR, Szilagyi PG, Edwards KM, Staat MA, Hall CB, Durigon EL, Erdman DD. Molecular characterization of respiratory syncytial viruses infecting children reported to have received palivizumab immunoprophylaxis. J Clin Virol. 2015 Apr;65:26-31. doi: 10.1016/j.jcv.2015.01.016. Epub 2015 Jan 24. PMID: 25766983. 280. Talbot HK, Nian H, Zhu Y, Chen Q, Williams JV, Griffin MR. Clinical effectiveness of split-virion versus subunit trivalent influenza vaccines in older adults. Clin Infect Dis. 2015 Apr 15;60(8):11705. doi: 10.1093/cid/civ019. Epub 2015 Feb 18. PMID: 25697739.
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281. Talbot HK, Coleman LA, Zhu Y, Spencer S, Thompson M, Cheng PY, Sundaram ME, Belongia EA, Griffin MR. Factors associated with maintenance of antibody responses to influenza vaccine in older, community-dwelling adults. BMC Infect Dis. 2015 Apr 23;15(1):195. doi: 10.1186/s12879015-0926-8. PMID: 25903659; PubMed Central PMCID: PMC4415221.
282. Howard LM, Johnson M, Williams JV, Zhu Y, Gil AI, Edwards KM, Griffin MR, Lanata CF, Grijalva CG; RESPIRA-PERU Group. Respiratory Viral Detections During Symptomatic and Asymptomatic Periods in Young Andean Children. Pediatr Infect Dis. 2015 Oct. doi: 10.1097/INF.0000000000000812. PMID: 26121205.
283. Grijalva CG, Zhu Y, Williams DJ, Self WH, Ampofo K, Pavia AT, Stockmann CR, McCullers J, Arnold SR, Wunderink RG, Anderson EJ, Lindstrom S, Fry AM, Foppa IM, Finelli L, Bramley AM, Jain S, Griffin MR, Edwards KM. Association Between Hospitalization With Community-Acquired Laboratory-Confirmed Influenza Pneumonia and Prior Receipt of Influenza Vaccination. JAMA. 2015 Oct 13. doi: 10.1001/jama.2015.12160. PMID: 26436611
284. Howard LM, Johnson M, Gil AI, Griffin MR, Edwards KM, Lanata CF, Williams JV, Grijalva CG. Molecular Epidemiology of Rhinovirus Detections in Young Children. Open Forum Infect Dis. 2 0 1 6 Jan 13. doi: 10.1093/ofid/ofw001. PMID: 26900577.
285. Yih WK, Greene SK, Zichittella L, Kulldorff M, Baker MA, de Jong JL, Gil-Prieto R, Griffin MR, Jin R, Lin ND, McMahill-Walraven CN, Reidy M, Selvam N, Selvan MS, Nguyen MD. Evaluation of the risk of venous thromboembolism after quadrivalent human papillomavirus vaccination among US females. Vaccine. 2016 Jan 2. doi: 10.1016/j.vaccine.2015.09.087. Epub 2015 Nov 6. PMID: 26549364.
286. Caspard H, Gaglani M, Clipper L, Belongia EA, McLean HQ, Griffin MR, Talbot HK, Poehling KA, Peters TR, Veney N, Ambrose CS. Vaccine. 2016 Jan 2. doi: 10.1016/j.vaccine.2015.11.010. Epub 2015 Nov 14. PMID: 26589519.
287. Chung JR, Flannery B, Thompson MG, Gaglani M, Jackson ML, Monto AS, Nowalk MP, Talbot HK, Treanor JJ, Belongia EA, Murthy K, Jackson LA, Petrie JG, Zimmerman RK, Griffin MR, McLean HQ, Fry AM. Seasonal Effectiveness of Live Attenuated and Inactivated Influenza Vaccine. Pediatrics. 2016 Feb 13. doi: 10.1542/peds.2015-3279. Epub 2016 Jan 5. PMID: 26738884.
288. Wiese AD, Griffin MR, Stein CM, Mitchel EF Jr, Grijalva CG Opioid Analgesics and the Risk of Serious Infections Among Patients With Rheumatoid Arthritis: A Self-Controlled Case Series Study. Arthritis Rheumatol. 2016 Feb. doi: 10.1002/art.39462. PMID: 26473742.
289. Min JY, Griffin MR, Hung AM, Grijalva CG, Greevy RA, Liu X, Elasy T, Roumie CL. Comparative Effectiveness of Insulin versus Combination Sulfonylurea and Insulin: a Cohort Study of Veterans with Type 2 Diabetes. J Gen Intern Med. 2016 Feb 26. [Epub ahead of print] PMID: 26921160.
290. Miller EK, Linder J, Kraft D, Johnson M, Lu P, Saville BR, Williams JV, Griffin MR, Talbot HK. Hospitalizations and outpatient visits for rhinovirus-associated acute respiratory illness in adults. J Allergy Clin Immunol. 2016 Mar. doi: 10.1016/j.jaci.2015.06.017. Epub 2015 Aug 6. PMID: 26255695.
291. Hanke CR, Grijalva CG, Chochua S, Pletz MW, Hornberg C, Edwards KM, Griffin MR, Verastegui H, Gil AI, Lanata CF, Klugman KP, Vidal JE. Bacterial Density, Serotype Distribution and Antibio t ic Resistance of Pneumococcal Strains from the Nasopharynx of Peruvian Children Before and After Pneumococcal Conjugate Vaccine 7. Pediatr Infect Dis J. 2016 Apr. doi: 10.1097/INF.0000000000001030. PMID: 26974749.
292. Talbot HK, Nian H, Chen Q, Zhu Y, Edwards KM, Griffin MR. Evaluating the case-positive, control test-negative study design for influenza vaccine effectiveness for the frailty bias. Vaccine. 2016 Apr 4. oi: 10.1016/j.vaccine.2016.02.037. Epub 2016 Feb 28. PMID: 26930368.
293. Roumie CL, Min JY, Greevy RA, Grijalva CG, Hung AM, Liu X, Elasy T, Griffin MR. Risk of hypoglycemia following intensification of metformin treatment with insulin versus sulfonylurea. CMAJ. 2016 Apr 5. doi: 10.1503/cmaj.150904. Epub 2016 Jan 25. PMID: 26811361.
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294. Dare R, Zhu Y, Williams JV, Griffin M, Talbot HK. Detection of influenza by real time RT-PCR is not affected by delays in respiratory specimen processing. J Med Virol. 2016 Apr 18. doi: 10.1002/jmv.24549. [Epub ahead of print] PMID: 27089468.
295. Toh S, Hampp C, Reichman ME, Graham DJ, Balakrishnan S, Pucino F, Hamilton J, Lendle S, Iye r A, Rucker M, Pimentel M, Nathwani N, Griffin MR, Brown NJ, Fireman BH. Risk for Hospitalized Heart Failure Among New Users of Saxagliptin, Sitagliptin, and Other Antihyperglycemic Drugs: A Retrospective Cohort Study. Ann Intern Med. 2016 Apr 26. doi: 10.7326/M15-2568. [Epub ahead of print] PMID: 27110660.
296. Wiese AD, Grijalva CG, Zhu Y, Mitchel EF Jr, Griffin MR. Changes in Childhood Pneumonia Hospitalizations by Race and Sex Associated with Pneumococcal Conjugate Vaccines. Emerg Infect Dis. 2016 Jun;22(6). doi: 10.3201/eid2206.152023. PubMed PMID: 27197048; PubMed Central PMCID: PMC4880071.
297. Coleman LA, Mishina M, Thompson M, Spencer SM, Reber AJ, Davis WG, Cheng PY, Belongia EA, Talbot HK, Sundaram ME, Griffin MR, Shay DK, Sambhara S. Age, serum 25-hydroxyvitamin D and vitamin D receptor (VDR) expression and function in peripheral blood mononuclear cells. Oncotarget. 2016 Jun 14;7(24):35512-35521.doi: 10.18632/oncotarget.9398. PubMed PMID: 27203211.
298. Roumie CL, Greevy RA, Grijalva CG, Hung AM, Liu X, Griffin MR. Diabetes treatment intensification and associated changes in HbA1c and body mass index: a cohort study. BM Endocr Disord. 2016 Jun 2;16(1):32. PMCID:PMC4890276.
299. Kim JH, Talbot HK, Mishina M, Zhu Y, Chen J, Cao W, Reber AJ, Griffin MR, Shay DK, Spencer SM, Sambhara S. High-dose influenza vaccine favors acute plasmablast responses rather than long-term cellular responses. Vaccine. 2016 Aug 31;34(38):4594-601. doi: 10.1016/j.vaccine.2016.07.018. PubMed PMID: 27473306;PubMed Central PMCID: PMC4996724.
300. Cherry CB, Griffin MR, Edwards KM, Williams JV, Gil AI, Verastegui H, Lanata CF, Grijalva CG. Spatial and Temporal Spread of Acute Viral Respiratory Infections in Young Children Living in High-altitude Rural Communities: A Prospective Household-based Study. Pediatr Infect Dis J. 2016 Oct;35(10):1057-61.doi: 10.1097/INF.0000000000001234. PubMed PMID: 27404599; PubMed Central PMCID:PMC5021582.
301. Chen Q, Nian H, Zhu Y, Talbot HK, Griffin MR, Harrell FE Jr. Too many covariates and too few cases? - a comparative study. Stat Med. 2016 Nov 10;35(25):4546-4558. doi: 10.1002/sim.7021. PubMed PMID: 27357163; PubMed CentralPMCID: PMC5050102.
302. Fan RR, Howard LM, Griffin MR, Edwards KM, Zhu Y, Williams JV, Vidal JE, Klugman KP, Gil AI, Lanata CF, Grijalva CG. Nasopharyngeal Pneumococcal Density and Evolution of Acute Respiratory Illnesses in Young Children, Peru, 2009-2011. Emerg Infect Dis. 2016 Nov;22(11):1996-1999. doi: 10.3201/eid2211.160902. PubMed PMID: 27767919.
303. de St Maurice A, Schaffner W, Griffin MR, Halasa N, Grijalva CG. Persistent Sex Disparities in Invasive Pneumococcal Diseases in the Conjugate Vaccine Era. J Infect Dis. 2016 Sep 1;214(5):792-7. doi: 10.1093/infdis/jiw222. PubMed PMID:27247342; PubMed Central PMCID: PMC4978370.
304. Wiese AD, Griffin MR, Zhu Y, Mitchel EF Jr, Grijalva CG. Changes in empyema among U.S. children in the pneumococcal conjugate vaccine era. Vaccine. 2016 Dec 7;34(50):6243-6249. doi: 10.1016/j.vaccine.2016.10.062. Epub 2016 Nov 7. PubMed PMID: 27832918.
305. Hung AM, Roumie CL, Greevy RA, Grijalva CG, Liu X, Murff HJ, Ikizler TA, Griffin MR. Comparative Effectiveness of Second-Line Agents for the Treatment of Diabetes Type 2 in Preventing Kidney Function Decline. Clin J Am Soc Nephrol. 2016 Dec 7;11(12):2177-2185. Epub 2016 Nov 8. PubMed PMID: 27827311; PubMed Central PMCID: PMC5142060.
306. Zhao SR, Griffin MR, Patterson BL, Mace RL, Wyatt D, Zhu Y, Talbot HK. Risk Factors for Outpatient Use of Antibiotics in Children with Acute Respiratory Illnesses. South Med J. 2017 Mar;110(3):172-180. doi:10.14423/SMJ.0000000000000622. PubMed PMID: 28257541; PubMed Central PMCID:PMC5338648.
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307. Howard LM, Edwards KM, Zhu Y, Griffin MR, Weinberg GA, Szilagyi PG, Staat MA, Payne DC, Williams JV. Clinical Features of Human Metapneumovirus Infection in Ambulatory Children Aged 5-13 Years. J Pediatric Infect Dis Soc. 2017 Mar 24.doi: 10.1093/jpids/pix012. [Epub ahead of print] PubMed PMID: 28369564.
308. Roumie CL, Min JY, D'Agostino McGowan L, Presley C, Grijalva CG, Hackstadt AJ, Hung AM, Greevy RA, Elasy T, Griffin MR. Comparative Safety of Sulfonylurea and Metformin Monotherapy on the Risk of Heart Failure: A Cohort Study. J Am Heart Assoc. 2017 Apr 19;6(4). pii: e005379. doi: 10.1161/JAHA.116.005379. PubMed PMID:28424149.
309. McLean HQ, Caspard H, Griffin MR, Poehling KA, Gaglani M, Belongia EA, Talbot HK, Peters T R, Murthy K, Ambrose CS. Effectiveness of live attenuated influenza vaccine and inactivated influenza vaccine in children during the 2014-2015 season. Vaccine. 2017 May 9;35(20):2685-2693. doi: 10.1016/j.vaccine.2017.03.085. Epub 2017 Apr 10. PubMed PMID: 28408121.
310. Howard LM, Fan R, Zhu Y, Griffin MR, Edwards KM, Hartinger S, Williams J, Vidal JE, Klugman KP, Gil AI, Lanata CF, Grijalva CG. Nasopharyngeal Pneumococcal Density Is Associated With Viral Activity but Not With Use of Improved Stoves Among Young Andean Children. Open Forum Infect Dis. 2017 Aug 2;4(3):ofx161. doi: 10.1093/ofid/ofx161. eCollection 2017 Summer. PubMed PMID: 28929126; PubMed Central PMCID: PMC5601081.
311. Kim L, Rha B, Abramson JS, Anderson LJ, Byington CL, Chen GL, DeVincenzo J, Edwards KM, Englund JA, Falsey AR, Griffin MR, Karron RA, Martin KG, Meissner HC,Munoz FM, Pavia AT, Piedra PA, Schaffner W, Simões EAF, Singleton R, Talbot HK, Walsh EE, Zucker JR, Gerber SI. Identifying Gaps in Respiratory Syncytial Virus Disease Epidemiology in the United States Prior to the Introduction of Vaccines. Clin Infect Dis. 2017 Sep 15;65(6):1020-1025. doi: 10.1093/cid/cix432. PubMed PMID: 28903503.
312. Poehling KA, Caspard H, Peters TR, Belongia EA, Congeni B, Gaglani M, Griffin MR, Irving SA, Kavathekar PK, McLean HQ, Naleway AL, Ryan K, Talbot HK, Ambrose CS. 2015-2016 Vaccine Effectiveness of Live Attenuated and Inactivated Influenza Vaccines in Children in the United States. Clin Infect Dis. 2017 Oct 4. doi:10.1093/cid/cix869. [Epub ahead of print] PubMed PMID: 29029064.
313. Grijalva CG, Biaggioni I, Griffin MR, Shibao CA. Fludrocortisone Is Associated With a Hig h e r Risk of All-Cause Hospitalizations Compared With Midodrine in Patients With Orthostatic Hypotension. J Am Heart Assoc. 2017 Oct 12;6(10). pii: e006848. doi: 10.1161/JAHA.117.006848. PubMed PMID: 29025750; PubMed Central PMCID: PMC5721876.
314. Howard LM, Johnson M, Gil AI, Pekosz A, Griffin MR, Edwards KM, Lanata CF, Grijalva CG, Williams JV; RESPIRA-PERU Group. A novel real-time RT-PCR assay for influenza C tested in Peruvian children. J Clin Virol. 2017 Nov;96:12-16. doi:10.1016/j.jcv.2017.08.014. Epub 2017 Sep 1. PubMed PMID: 28917132.
315. Foxx AM, Zhu Y, Mitchel E, Nikpay S, Khabele D, Griffin MR. Cervical Cancer Screening and Follow-Up Procedures in Women Age <21 Years Following New Screening Guidelines. J Adolesc Health. 2017 Nov 22. pii: S1054-139X(17)30467-6. doi:10.1016/j.jadohealth.2017.08.027. [Epub ahead of print] PubMed PMID: 29174874.
316. Hilmes MA, Daniel Dunnavant F, Singh SP, Ellis WD, Payne DC, Zhu Y, Griffin MR, Edwards KM, Williams JV. Chest radiographic features of human metapneumovirus infection in pediatric patients. Pediatr Radiol. 2017 Dec;47(13):1745-1750. doi:10.1007/s00247-017-3943-5. Epub 2017 Aug 22. PubMed PMID: 28831577.
317. Toh S, Reichman ME, Graham DJ, Hampp C, Zhang R, Butler MG, Iyer A, Rucker M, Pimentel M, Hamilton J, Lendle S, Fireman BH; Mini-Sentinel Saxagliptin-AMISurveillance Writing Group. Prospective Postmarketing Surveillance of Acute Myocardial Infarction in New Users of Saxagliptin: A Population-Based Study. Diabetes Care. 2018 Jan;41(1):39-48. doi: 10.2337/dc17-0476. Epub 2017 Nov 9.PubMed PMID: 29122893.
318. Flannery B, Smith C, Garten RJ, Levine MZ, Chung JR, Jackson ML, Jackson LA, Monto AS, Martin ET, Belongia EA, McLean HQ, Gaglani M, Murthy K, Zimmerman R,Nowalk MP, Griffin MR,
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Keipp Talbot H, Treanor JJ, Wentworth DE, Fry AM. Influence of Birth Cohort on Effectiveness of 2015-2016 Influenza Vaccine Against Medically Attended Illness Due to 2009 Pandemic Influenza A(H1N1) Virus in the United States. J Infect Dis. 2018 Jan 18. doi: 10.1093/infdis/jix634. [Epub ahead of print] PubMed PMID: 29361005. 319. Hartman L, Zhu Y, Edwards KM, Griffin MR, Talbot HK. Underdiagnosis of Influenza Virus Infection in Hospitalized Older Adults. J Am Geriatr Soc. 2018 Mar;66(3):467-472. doi: 10. Epub 2018 Jan 11. PubMed PMID: 29326106; PubMed Central PMCID: PMC5829959.1111/jgs.15298. 320. Hung AM, Siew ED, Wilson OD, Perkins AM, Greevy RA Jr., Horner J, Abdel-Kader K, Parr SK, Roumie CL, Griffin MR, Ikizler TA, Speroff T, Matheny ME. Risk of Hypoglycemia Following Hospital Discharge in Patients With Diabetes and Acute Kidney Injury. Diabetes Care. 2018 Mar;41(3):503-512. doi: 10.2337/dc17-1237.Epub 2018 Feb 13. PubMed PMID:9341100; Pu b Me d Central PMCID: PMC5863754. 321. Wiese AD, Griffin MR, Schaffner W, Stein CM, Greevy RA, Mitchel EF Jr.,Grijalva CG. Opioid Analgesic Use and Risk for Invasive Pneumococcal Diseases: A Nested Case-Control Study. Ann Intern Med. 2018 Mar 20;168(6):396-404. doi:10.7326/M17-1907. Epub 2018 Feb 13. PubMed PMID: 29435555. 322. Presley CA, Min JY, Chipman J, Greevy RA, Grijalva CG, Griffin MR, Roumie CL. Validation of an algorithm to identify heart failure hospitalisations in patients with diabetes within the veterans health administration. BMJ Open. 2018 Mar 25;8(3):e020455. doi: 10.1136/bmjopen-2017-020455. PubMed PMID: 29581206; PubMed Central PMCID: PMC5875613. 323. Howard LM, Edwards KM, Zhu Y, Griffin MR, Weinberg GA, Szilagyi PG, Staat MA, Payne DC, Williams JV. Clinical Features of Human Metapneumovirus Infection in Ambulatory Children Aged 5-13 Years. J Pediatric Infect Dis Soc. 2018 May 15;7(2):165-168. doi: 10.1093/jpids/pix012. PubMed PMID: 28369564; PubMed Central PMCID: PMC5954304. 324. Oakley F, Desouki MM, Pemmaraju M, Gargano JM, Markowitz LE, Steinau M, Unger ER, Zhu Y, Fadare O, Griffin MR. Trends in High-Grade Cervical Cancer Precursors in the Human Papillomavirus Vaccine Era. Am J Prev Med. 2018 May 16. pii:S0749-3797(18)31672-6. doi: 10.1016/j.amepre.2018.03.015. [Epub ahead of print]PubMed PMID: 29778314. 325. Hartman L, Zhu Y, Edwards KM, Griffin MR, Talbot HK. Underdiagnosis of Influenza Virus Infection in Hospitalized Older Adults. J Am Geriatr Soc. 2018 Mar;66(3):467-472. doi: 10.1111/jgs.15298. Epub 2018 Feb 13. PubMed PMID: 29341100; PubMed Central PMCID: PMC5863754. 326. Nelson KN, Grijalva CG, Chochua S, Hawkins PA, Gil AI, Lanata CF, Griffin MR, Edwards KM, Klugman KP, Vidal JE. Dynamics of Colonization of Streptococcus pneumoniae Strains in Healthy Peruvian Children. Open Forum Infect Dis. 2018 Feb 17;5(3):ofy039. doi: 10.1093/ofid/ofy039. eCollection 2018 Mar. PubMed PMID: 29588913; PubMed Central PMCID: PMC5842394. 327. Wiese AD, Griffin MR, Stein CM, Schaffner W, Greevy RA, Mitchel EF Jr, Grijalva CG. Validation of discharge diagnosis codes to identify serious infections among middle age and old e r a d u lt s. BMJ Open. 2018 Jun 19;8(6):e020857. doi: 10.1136/bmjopen-2017-020857. PubMed PMID: 29921683; PubMed Central PMCID: PMC6009457. 328. Gargano JW, Park IU, Griffin MR, Niccolai LM, Powell M, Bennett NM, Johnson Jones ML, Whitney E, Pemmaraju M, Brackney M, Abdullah N, Scahill M, Dahl RM, Cleveland AA, Unger ER, Markowitz LE; HPV-IMPACT Working Group. Trends in High-grade Cervical Lesions and Cervical Cancer Screening in Five States, 2008-2015. Clin Infect Dis. 2018 Aug 23. doi: 10.1093/cid/ciy707. [Epub ahead of print] PubMed PMID: 30137283. 329. Murff HJ, Roumie CL, Greevy RA, Hackstadt AJ, McGowan LED, Hung AM, Grijalva CG, Griffin MR. Metformin use and incidence cancer risk: evidence for a selective protective effect against liver cancer. Cancer Causes Control. 2018 Sep;29(9):823-832. doi: 10.1007/s10552-018-1058-4. Epub 2018 Jul 18. PubMed PMID: 30022336; PubMed Central PMCID: PMC6108939.
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330. Wiese AD, Griffin MR, Schaffner W, Stein CM, Greevy RA, Mitchel EF Jr, Grijalva CG. Long-acting opioid use and the risk of serious infections: a retrospective cohort study. Clin Infect Dis. 2018 Sep 15. doi: 10.1093/cid/ciy809. [Epub ahead of print] PubMed PMID: 30239630.
331. Presley CA, Chipman J, Min JY, Grijalva CG, Greevy RA, Griffin MR, Roumie CL. Evaluation of frailty as an unmeasured confounder in observational studies of antidiabetic medications. J Gerontol A Biol Sci Med Sci. 2018 Sep 26. doi: 10.1093/gerona/gly224. [Epub ahead of print] PubMed PMID: 30256914.
332. McLean HQ, Caspard H, Griffin MR, Gaglani M, Peters TR, Poehling KA, Ambrose CS, Belongia EA. Association of Prior Vaccination With Influenza Vaccine Effectiveness in Children Receiving Live Attenuated or Inactivated Vaccine. JAMA Netw Open. 2018 Oct 5;1(6):e183742. doi: 10.1001/jamanetworkopen.2018.3742. PubMed PMID: 30646262; PubMed Central PMCID: PMC6324442.
333. Min JY, Griffin MR, Chipman J, Hackstadt AJ, Greevy RA, Grijalva CG, Hung AM, Roumie CL. Recent metformin adherence and the risk of hypoglycaemia in the year following intensification with a sulfonylurea. Diabet Med. 2018 Oct 30. doi: 10.1111/dme.13853. [Epub ahead of print] PubMed PMID: 30378161.
334. Wiese AD, Griffin MR, Grijalva CG. Impact of pneumococcal conjugate vaccines on hospitalizations for pneumonia in the United States. Expert Rev Vaccines. 2019 Apr;18(4):327-341. doi: 10.1080/14760584.2019.1582337. Epub 2019 Mar 20. PubMed PMID: 30759352; PubMed Central PMCID: PMC6443450.
335. Wiese AD, Huang X, Yu C, Mitchel EF, Kyaw MH, Griffin MR, Grijalva CG. Changes in otitis media episodes and pressure equalization tube insertions among young children following introduction o f the 13-valent pneumococcal conjugate vaccine: A birth-cohort based study. Clin In f e ct Dis. 2 0 1 9 Feb 16. pii: ciz142. doi: 10.1093/cid/ciz142. [Epub ahead of print] PubMed PMID: 30770533.
336. McClung NM, Gargano JW, Bennett NM, Niccolai LM, Abdullah N, Griffin MR, Park IU, Cleveland AA, Querec TD, Unger ER, Markowitz LE; HPV-IMPACT Working Group. Trends in Human Papillomavirus Vaccine Types 16 and 18 in Cervical Precancers, 2008-2014. Cancer Epidemiol Biomarkers Prev. 2019 Mar;28(3):602-609. doi: 10.1158/1055-9965.EPI-18-0885. Epub 2019 F eb 21. PubMed PMID: 30792242.
337. Min JY, Presley CA, Wharton J, Griffin MR, Greevy RA Jr, Hung AM, Chipman J, Grijalva CG, Hackstadt AJ, Roumie CL. Accuracy of a composite event definition for hypoglycemia. Pharmacoepidemiol Drug Saf. 2019 May;28(5):625-631. doi: 10.1002/pds.4712. Epub 2019 Mar 6. PubMed PMID: 30843332; PubMed Central PMCID: PMC6497537.10.1158/1055-9965.EPI-180885. Epub 2019 Feb 21. PubMed PMID: 30792242.
338. Osmundson SS, Wiese AD, Min JY, Hawley RE, Patrick SW, Griffin MR, Grijalva CG. Delivery type, opioid prescribing, and the risk of persistent opioid use after delivery. Am J Obstet Gyn e co l. 2 0 1 9 Apr;220(4):405-407. doi: 10.1016/j.ajog.2018.10.026. Epub 2018 Oct 25. PubMed PMID: 30955527.
339. Cleveland AA, Gargano JW, Park IU, Griffin MR, Niccolai LM, Powell M, Bennett NM, Saadeh K, Pemmaraju M, Higgins K, Ehlers S, Scahill M, Johnson Jones ML, Querec T, Markowitz LE, Unger ER; HPV-IMPACT Working Group. Cervical adenocarcinoma in situ: Human papillomavirus types and incidence trends in five states, 2008-2015. Int J Cancer. 2019 Apr 13. doi: 10.1002/ijc.32340. [Epub ahead of print] PubMed PMID: 30980692.
340. Shing JZ, Hull PC, Zhu Y, Gargano JW, Markowitz LE, Cleveland AA, Pemmaraju M, Park IU, Whitney E, Mitchel EF, Griffin MR. Trends in anogenital wart incidence among Tennessee Medicaid enrollees, 2006-2014: The impact of human papillomavirus vaccination. Papillomavirus Res. 2019 Apr 10;7:141-149. doi: 10.1016/j.pvr.2019.04.007. [Epub ahead of print] PubMed PMID: 30980966; PubMed Central PMCID: PMC6468146.
341. McClung NM, Gargano JW, Park IU, Whitney E, Abdullah N, Ehlers S, Bennett NM, Scahill M, Niccolai LM, Brackney M, Griffin MR, Pemmaraju M, Querec TD, Cleveland AA, Unger ER, Markowitz LE; HPV-IMPACT Working Group. Estimated Number of Cases of High-Grade Cervical
31

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Lesions Diagnosed Among Women - United States, 2008 and 2016. MMWR Morb Mortal Wkly Rep. 2019 Apr 19;68(15):337-343. doi: 10.15585/mmwr.mm6815a1. PubMed PMID: 30998672; PubMed Central PMCID: PMC6476057. 342. Min JY, Hackstadt AJ, Griffin MR, Greevy RA Jr, Chipman J, Grijalva CG, Hung AM, Roumie CL. Evaluation of weight change and hypoglycaemia as mediators in the association between insulin use and death. Diabetes Obes Metab. 2019 Dec;21(12):2626-2634. doi: 10.1111/dom.13846. Epub 2019 Aug 29. PubMed PMID:31373104. 343. Min JY, Grijalva CG, Morrow JA, Whitmore CC, Hawley RE, Singh S, Swain RS, Griffin MR. A comparison of two algorithms to identify sudden cardiac deaths in computerized databases. Pharmacoepidemiol Drug Saf. 2019 Oct;28(10):1411-1416. doi: 10.1002/pds.4845. Epub 2019 Aug 7. PubMed PMID: 31390681; PubMed Central PMCID: PMC6810726. 344. Roumie CL, Chipman J, Min JY, Hackstadt AJ, Hung AM, Greevy RA Jr, Grijalva CG, Elasy T, Griffin MR. Association of Treatment With Metformin vs Sulfonylurea With Major Adverse Cardiovascular Events Among Patients With Diabetes and Reduced Kidney Function. JAMA. 2019 Sep 19:1-11. doi: 10.1001/jama.2019.13206. [Epub ahead of print] PubMed PMID: 31536102; PubMed Central PMCID: PMC6753652. 345. Howard LM, Zhu Y, Griffin MR, Edwards KM, Williams JV, Gil AI, Vidal JE, Klugman KP, Lanata CF, Grijalva CG. Nasopharyngeal Pneumococcal Density during Asymptomatic Respiratory Virus Infection and Risk for Subsequent Acute Respiratory Illness. Emerg Infect Dis. 2019 Nov;25(11):2040-2047. doi:10.3201/eid2511.190157. PubMed PMID: 31625844; PubMed Central PMCID: PMC6810199. 346. Johnson Jones ML, Gargano JW, Powell M, Park IU, Niccolai LM, Bennett NM, Griffin MR, Querec T, Unger ER, Markowitz LE; HPV-IMPACT Working Group. Effectiveness of 1, 2, AND 3 Human Papillomavirus Vaccine doses against HPV-16/18 positive High-grade Cervical Lesions. Am J Epidemiol. 2019 Nov 4. pii: kwz253. doi: 10.1093/aje/kwz253. [Epub ahead of print] PubMed PMID: 31680146. 347. Metlay JP, Waterer GW, Long AC, Anzueto A, Brozek J, Crothers K, Cooley LA, Dean NC, Fine MJ, Flanders SA, Griffin MR, Metersky ML, Musher DM, Restrepo MI, Whitney CG. Diagnosis and Treatment of Adults with Community-acquired Pneumonia. An Official Clinical Practice Guideline of the American Thoracic Society and Infectious Diseases Society of America. Am J Respir Cr it Ca r e Med. 2019 Oct 1;200(7):e45-e67. doi: 10.1164/rccm.201908-1581ST. PubMed PMID: 31573350; PubMed Central PMCID: PMC6812437. 348. Katz SE, Staub M, Ouedraogo Y, Evans CD, Kainer MA, Griffin MR, Banerjee R. Population-based assessment of patient and provider characteristics influencing pediatric outpatient antibiotic use in a high antibiotic-prescribing state. Infect Control Hosp Epidemiol. 2020 Jan 15:1-6. doi: 10.1017/ice.2019.338. [Epub ahead of print] PubMed PMID: 31937378. 349. Liberman JS, D'Agostino McGowan L, Greevy RA, Morrow JA, Griffin MR, Roumie CL, Grijalva CG. Mental health conditions and the risk of chronic opioid therapy among patients with rheumatoid arthritis: a retrospective veterans affairs cohort study. Clin Rheumatol. 2020 Feb 8. doi: 10.1007/s10067-020-04955-2. [Epub ahead of print] PubMed PMID: 32036583.
Editorials, Books, Book Chapters, Letters, Invited Articles 1. Griffin MR. "Analisis de cohortes en estudios de mortalidad y morbilidad" in Lopes-Acuna D, ed.
Serie Metodos Basicos de Epidemiologia y Bioestadistica (Teaching Manual of the Pan America n Health Organization). 2. Griffin MR, Ray WA, Fought RL, Foster MA, Hays A, Schaffner W. Monitoring the safety of childhood immunizations: Methods of linking and augmenting computerized databases for epidemiologic studies. Progress in Pharmacoepidemiology (Suppl to Am J Prev Med) 1988;4(2):5-13.
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3. Ray WA, Griffin MR. Prescribed medications and the risk of falling. Topics Geriatric Rehabilitation 1990; 5(2):12-20.
4. Ray WA, Griffin MR. Prescribed medications, falling, and fall-related injuries. Reducing Frailty and Injuries in Older Persons, Weindruch R, Hadley E, Ory M, eds. Charles Thomas, Springfield IL, 1991:76-89.
5. Pincus TP, Griffin MR. Gastrointestinal disease associated with nonsteroidal anti-inflammatory drugs: new insights from observational studies and functional status questionnaires. Am J Med 1991:91:209-212.
6. Institute of Medicine. Committee (including Griffin MR) to Review the Adverse Consequences of Pertussis and Rubella Vaccines. Adverse Effects of Pertussis and Rubella Vaccines. Howson CP, Howe CJ, Fineberg HV, eds. National Academy Press, Washington, D.C., 1991.
7. Griffin MR. NSAID use in the elderly. Reappraisal of the Management of Patients with Osteoarthritis. Baker JR and Brandt KD, eds. Scientific Therapeutics Information, Inc., Springfield, N.J.1993:35-37.
8. American College of Physicians Task Force on Adult Immunization and Infectious Diseases Society of America (including Griffin MR). Guide for Adult Immunization. American College of Physicians, Philadelphia, Pennsylvania 1994.
9. Gardner P, Griffin M, Gross P, LaForce FM, Schaffner W, Eickhoff T, Strikas R. Adult Immunizations 1994. (editorial) Ann Intern Med 1994:121:540-541
10. Griffin M, Schaffner W. Immunization of Adults. Current Practice of Medicine Volume 2. Bone, ed. Current Medicine, Philadelphia, Pennsylvania, Churchill Livingstone, Inc. 1996;VIII:2.2-2.8.
11. The Role of Beta Receptor Agonist Therapy in Asthma Mortality. Beasley R, Pearce NE, eds. (Book review by Griffin M). Epidemiology Monitor; November 1994;15:6.
12. Hochberg MC, Altman RD, Brandt KD, Clark B, Dieppe PA, Griffin MR, Moskowitz RW, Schnitzer T. Guidelines for the Medical Management of Osteoarthritis. Part I. Osteoarthritis of the hip. Arthritis Rheum 1995;38:1535-1540.
13. Hochberg MC, Altman RD, Brandt KD, Clark B, Dieppe PA, Griffin MR, Moskowitz RW, Schnitzer T. Guidelines for the Medical Management of Osteoarthritis. Part II. Osteoarthritis of the knee. Arthritis Rheum 1995;38:1541-1546.
14. Stein CM, Griffin MR, Brandt KD.Clinical Care in the Rheumatic Disease. Osteoarthritis, American College of Rheumatology, Atlanta, Georgia 1996;30:177-182.
15. Griffin, MR. Nonsteroidal Anti-inflammatory Drugs. Osteoarthritis. Brandt, Lohmander, and Doherty eds. Oxford University Press. New York, 1998
16. Gardner P, Eickhoff T, Poland GA, Gross P, Griffin M, LaForce FM, Schaffner W, Strikas R. Update: Adult Immunizations. Ann Intern Med 1996;124:35-40.
17. Smalley WE, Griffin MR. The Risks and Costs of Upper Gastrointestinal Disease Attributable to NSAIDS. NSAIDS, Eicosanoids and the GI Tract. Gastroenterology Clinics of North America 1996;25:373-396.
18. Griffin, MR. Epidemiology of NSAID-Associated Gastrointestinal injury. Am J Med 1998;104 (3A):23S-29S.
19. Griffin MR, Scheiman JM.Prospects for changing the burden of toxicity due to nonsteroidal antiinflammatory drug toxicity. Am J Med 2001;110 (1A):33S-37S.
20. Griffin, MR. Second International Symposium on Influenza and Other Respiratory Viruses.Understanding Pathogenesis to Build a Better Mousetrap. Medscape December 11, 1999. http://ID.medscape.com/Medscape/CNO/1999/FLU/Story.cfm?story_id=995.
21. Griffin, MR. The Cox-2 Report: the good, the bad, and the unknown. J Clin Outcomes 2000;7: 62-66. Editorial.
22. Neuzil KM, Griffin MR, Schaffner W. Influenza Vaccine: Issues and Opportunities. Infect Dis Clin North Am 2000;15:123-141.
23. Griffin MR. Neuzil KM. The global implications of influenza in Hong Kong.[comment]. NEJM. 2002;347(26):2159-62.
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24. Edwards KM, Griffin MR, Great expectations for a new vaccine [comment] NEJM. 2003;349:13124.
25. Butler J, Arbogast P, Jain M, Griffin MR. Adherence to therapy with beta blocking agents after acute MI. Cardiology 2003;20:39-46.
26. Griffin MR, Stein CM, Ray WA. Postmarketing surveillance for drug safety: Surely we can do better. Clin Pharmacol Ther 2004;75:491-494.
27. Elasy TA, Griffin M. Thiazolidinedione use, fluid retention, and congestive heart failure: a consensus statement from the American Heart Association and American Diabetes Association: response to Nesto [Comment. Letter] Diabetes Care. 2004; 27:2096
28. Talbot TR, Griffin MR. Use of population-based cohort data to assess community-acquired pneumonia: a powerful Approach. Clin Infect Dis. 2004 Dec 1;39(11):1651-3. Epub 2004 Nov 8.
29. Neuzil KM, Griffin MR. Vaccine safety—achieving the proper balance. JAMA. 2005; 294:2763-5. 30. [Contributor] What’s Past is Prologue:The Personal Stories of Women in Science at the Vanderbilt
University School of Medicine,EG Neilson, ed, Hillsboro Press, Franklin, Tennessee, 2006, Chapter 4, pp 29-32. 31. Edwards KM, Griffin MR. Influenza vaccination of children: Can it be accomplished? J Infect Dis. 2006 Oct 15;194(8):1027-9. Epub 2006 Sep 11 32. Grijalva CG, Arbogast PG, Griffin MR. Statins and influenza/COPD mortality. Chest. 2007;132:1407. (Letter). 33. Wu P, Dupont WD, Griffin MR, Hartert TV. A role for genes and environment in the causal relationship between infant RSV infection and childhood asthma. Am J Respir Crit Care Med. 2010 Jan 15;181(2):194-5; author reply 195. 34. Grijalva CG, Griffin MR. Unveiling the Burden of Influenza-Associated Pneumococcal Pneumonia. J Infect Dis. 2011 Dec 7. [Epub ahead of print] PubMed PMID: 22158562. 35. Grijalva CG, Moore MR, Griffin MR. Assessing the effect of pneumococcal conjugate vaccines: what is the value of routinely collected surveillance data? Lancet Infect Dis. 2011 May 26. [Epub ahead of print] PubMed PMID: 21621465. 36. Griffin MR. High-dose non-steroidal anti-inflammatories: painful choices. Lancet. 2013. May 29;13:61128-9. PMID: 23726391. 37. Grijalva CG, Griffin MR. Prevention of invasive pneumococcal diseases: beyond cultures. Lancet Respir Med. 2014 Aug 7. pii: S2213-2600(14)70143-2. doi:10.1016/S2213-2600(14)70143-2. [Epub ahead of print] PubMed PMID: 25127243. 38. Griffin MR, Grijalva CG. Restraining the pneumococcus. Lancet Infect Dis. 2015 May;15(5):491-2. doi: 10.1016/S1473-3099(15)70085-X. Epub 2015 Mar 20. PMID: 25801457. 39. Neuzil KM, Griffin MR. Preventing Shingles and Its Complications in Older Persons. N Engl J Med. 2016 Sep 15;375(11):1079-80. doi: 10.1056/NEJMe1610652.PubMed PMID: 27626522.
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Case 2:20-cv-02359 Document 2-5 Filed 05/20/20 Page 1 of 7 PageID 163

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
P etitioners-P laintiffs ,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______

DECLARATION OF BILL POWELL IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER

Case 2:20-cv-02359 Document 2-5 Filed 05/20/20 Page 2 of 7 PageID 164
I, Bill Powell, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746:
1. My name is Bill Powell. I am over the age of 18 and I am competent to make this declaration.
2. I have lived in Shelby County for 57 years. Prior to my retirement, I worked in the criminal justice system in Shelby County for 39 years.
3. I am the former director of Shelby County’s Pretrial Services Department. I also served as the criminal justice coordinator for the Shelby County Government and previously served as a coordinator for a settlement agreement between the Shelby County Government and the U.S. Department of Justice.
4. Through each of my capacities described above, I became familiar with the Shelby County Jail, its design, structure, and administration.
5. I make this declaration of my personal knowledge. I. Concerns Around Shelby County Jail’s Response to COVID-19
6. On March 19, 2020, I sent an email to Mark Billingsley, Chair of the Shelby County Board of Commissioners; Lee Harris, Shelby County Mayor; Karen Bartlett, Executive Assistant to Sheriff Bonner, and Shelby County Sheriff Floyd Bonner, Jr. A true and correct copy of that email is attached as Exhibit A.
7. The email expressed my concerns that the severity of the health issue presented by COVID-19 in the Shelby County Jail was not being adequately addressed, even in light of positive steps taken by local officials including the Sheriff.
8. I recommended that the Sheriff’s Office devise a plan to release people incarcerated in the jail, starting with those only incarcerated for their inability to pay a secured bail requirement of $10,000 or less.
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9. I wrote this email because I was concerned about the significant risk posed to the health of vulnerable people in the Shelby County Jail, where individuals spend their time in close proximity to each other. Many people in the jail have risk factors that render them particularly vulnerable to serious illness or death if they contract COVID-19. II. Scope of Sheriff’s Authority to Release Medically-Vulnerable People
10. The Sheriff is vested with legal authority to release persons accused of misdemeanors without a judicial order and that this has been the case for 30 years. See Tenn. Code Ann. § 40-7-120.
11. A Pretrial Services department already exists in Shelby County that could supervise persons in the community while they are awaiting future court dates. I noted in my March 19, 2020 email that the Pretrial Services could easily undertake a review of an individual’s case file prior to a person’s release, for instance to determine if they have other holds.
12. I do not believe the Shelby County Sheriff’s Office has done all that it can to address the COVID-19 outbreak or to release vulnerable people from the Jail.
13. As just one example, the Sheriff’s Office continues to accept intake via misdemeanor arrests rather than issuing citations and diverting people accused of misdemeanors as authorized by statute. III. Opinion as a Criminal Justice Stakeholder
14. I continue to hold the same concerns stated in my March 19, 2020 email today. 15. I believe the Shelby County Sheriff’s office should take all steps to release medically-vulnerable persons from the Shelby County Jail and ensure that any necessary supervision of such persons occurs in the community or, if necessary, in a facility (i.e. a community treatment program or hospital) where they are housed in a manner that ensures their ability to follow public health protocols regarding social distancing and hygiene. 16. I believe the release of medically-vulnerable people can be undertaken in a way that ensures public safety for the Shelby County community.
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Exhibit A

From: Bill Powell Sent: Thursday, March 19, 2020 9:36 AM To: mark.billingsley@shelbycountytn.gov; lee.harris@shelbycountytn.gov; karen.bartlett@shelbysheriff.org; floyd.bonner@shelby-sheriff.org Subject: Coronavirus and the Jail
Good morning, I read the article in the Daily Memphian this morning about concerns about coronavirus threat to those in custody at the County Jail. The extreme measures being taken by government, business and the population at large are indicative of the public health threat we all face.
Sheriff Bonner is correct that in most cases, he cannot simply release individuals from custody without judicial approval. Having the jail expeditor review cases is a good move but I would suggest it is not enough given the level of crisis we face. I would like to make the following suggestion for your consideration:
1. Prepare a planned response and take to the General Sessions and Criminal Court judges and base the plan on the following factors.
2. The plan would include releasing inmates in custody with bonds of $10,000 or less. These individuals would be released under the supervision of Shelby County Pretrial Services during the pendency of their case. The Bond amount is some measure of the risk posed according to the magistrate who set the bond and releasing by bond amount saves a considerable amount of time screening and reviewing cases. Pretrial could do some type of quick review to insure there are no other holds in the case. If there is concern about releasing these individuals it should be noted they could obtain their own release if they had $1,000 so, in essence, they are detained for a lack of money not because of the level of threat.
3. Encourage law enforcement to issue summons whenever possible in all misdemeanor cases. This would slow down the numbers entering the jail facility.
4. The Sheriff actually does have the authority to release misdemeanor offenders without judicial authority. This has been the case for 30 years and that authority has historically been granted to Pretrial Services. There are some exceptions to this such as if a bond has already been set on a warrant.

Case 2:20-cv-02359 Document 2-5 Filed 05/20/20 Page 7 of 7 PageID 169
I would strongly encourage a dramatic response to this serious health issue. The folks in the jail are at great risk because of the close proximity to each other while detained and because many of them have other risk factors. Nearly all of these individuals will return to their family and community and their time in 201 Poplar should be limited.
Our jail suffered a crisis in 1991 when there was a riot in which use of the 4th floor was lost for some time. The judges were very helpful in revising current practices to meet that crisis. I have no doubt they will be eager to work with you on this crisis as well.
Thank you for your consideration and for the work you are doing to protect our community.
Sincerely, Bill Powell Billpowell55@gmail.com
Sent from Mail for Windows 10

Case 2:20-cv-02359 Document 2-6 Filed 05/20/20 Page 1 of 4 PageID 170

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
P etitioners-P laintiffs ,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______

DECLARATION OF ANN L. SCHILLER IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER

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I, Ann. L. Schiller, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746:
1. My name is Ann L. Schiller. I am over the age of 18 and I am competent to make this Declaration.
2. I am an attorney practicing criminal defense in the Shelby County courts. I am Board Certified in Criminal Law. I represent clients at all stages of their criminal prosecution and am familiar with the relevant appellate practices that accompany such representation.
3. I have been practicing law for thirteen (13) years, all of them in Shelby County. 4. I am a graduate of the University of Memphis Cecil C. Humphreys School of Law. 5. I represent clients who are currently incarcerated in the Shelby County Jail at 201 Poplar. I have visited clients in the Shelby County Jail dozens of times in the past three (3) years. 6. I make this Declaration based on my personal knowledge. 7. I respectfully submit this Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order. The purpose of this Declaration is to provide facts that I have learned about the health and safety conditions at the Shelby County Jail, as well as to share information about the local court system, including the difficulties Plaintiffs and proposed class members in this action would have seeking the relief requested in their Motion in the local courts. I. COVID-19 Concerns at the Shelby County Jail 8. My clients report that the Shelby County Jail is failing to follow well-known public health protocols to protect them from becoming infected with COVID-19. 9. For example, detainees are housed in a way that renders social distancing of six feet or more at all times impossible. My clients share that they are kept in close proximity to other inmates when they want to use certain facilities, including bathrooms, phones, and kiosks.

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10. Further, the Jail does not test individuals for COVID-19 when they are booked into custody. The Jail also does not test the staff who routinely enter and exit the Jail.
11. I have had clients describe people in their unit who exhibit symptoms of COVID19, such as coughing, fever, and general malaise, but who are not able to be seen by medical professionals.
12. The Jail has not provided my clients with reliable access to hand soap so that they can wash their hands. According to my clients, they are required to purchase any soap through the commissary. Otherwise, if they cannot afford it, it is provided only once a week.
13. The Jail has not provided my clients with hand sanitizer. 14. The Jail has not provided my clients with disinfecting supplies or other cleaning supplies. II. Local Court Practice 15. In my experience, it takes two weeks for a request for a bond reduction to be heard by the court. To request a reduction in a client’s bond or alternate conditions of pretrial release, I would have to file a written motion for bond review, wait for the State to respond, and wait for the Court to set the motion for a hearing. If the Court decided to issue a written ruling on the bond request, I estimate the process would take approximately one month to six weeks in the local courts given the current court’s schedule. 16. An appeal of a request for a bond reduction goes to the Tennessee Court of Criminal Appeals. This process takes several weeks, and again involves an opportunity for the State to respond, a hearing with argument, and eventually an order from the Court of Criminal Appeals. Under pre-COVID-19 routine circumstances, this process generally took a month to six weeks.
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17. For clients held at the Jail pretrial, the aforementioned is the primary way for them to seek release. State court habeas writs are available only where a petitioner raises: (1) a claim of a void judgment that was facially invalid because the convicting court was without jurisdiction or authority to sentence the defendant; or (2) a claim the defendant’s sentence has expired. Benson v. State, 2019 WL 1388195 (Tenn. Ct. Cr. App. 2019) (citing Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)) (discussing T.C.A. §§ 29-21-101, -130). Based on both statute and settled caselaw, a habeas petition is premature prior to a conviction.
18. Tennessee courts, including those in Shelby County, have issued emergency closures and slowed their operations in response to the COVID-19 pandemic. Court cancellations can be common and vary by judge.
19. Further, even where a client gets a court date, it is unclear whether they will be transported to court as scheduled.
20. I am not aware of any vehicle in the state courts through which a class of pretrial detainees could seek relief regarding the constitutionality of their confinement in the Shelby County Jail.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 18th day of May, 2020.
Signed:
Ann L. Schiller Attorney at Law
3

Case 2:20-cv-02359 Document 2-7 Filed 05/20/20 Page 1 of 8 PageID 174

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. _______

FIRST DECLARATION OF JOSH SPICKLER IN SUPPORT OF PETITIONERS-PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER

Case 2:20-cv-02359 Document 2-7 Filed 05/20/20 Page 2 of 8 PageID 175
I, Josh Spickler, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. § 1746:
1. My name is Josh Spickler. I am over the age of 18 and I am competent to make this declaration.
2. I am an attorney with Just City, and I am one of the counsel of record for Plaintiffs in this action. I am licensed to practice law in the state of Tennessee.
3. I respectfully submit this Declaration in support of Plaintiffs’ Motion for a Temporary Restraining Order. The purpose of this Declaration is to record the conversations that I had on May 13 and 16, 2020 with Favian Busby, a person detained pre-trial at the Shelby County Jail and a Plaintiff in this action.
I. Background 4. Mr. Busby is 38 years old. He has been detained since September 2018. He is
being held at Shelby County Jail on $264,000 total bond that he cannot afford to pay. He is charged with multiple of Unlawful Possession of Controlled Substance and Convicted Felon in Possession of a Firearm.
5. Mr. Busby is a veteran of the United States Marine Corp. He served for eight years, from 2000 to 2008. He was honorably discharged after being deployed to Okinawa for three and a half years during his active service.
6. He holds a four-year degree in finance from the University of Phoenix and is a graduate of Middle College High School in Memphis. He also attended Collierville High School.
7. Mr. Busby was born and raised in Memphis. He has a 14-year old daughter and a 13-year old son who live in Memphis. He also has a 2-year old daughter who lives in New York.
2

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8. His brother, Edward Busby, lives in Memphis. Mr. Busby would stay with his brother, Edward Busby, if he were released. He would have access to his own room and would be able to quarantine for 14 days after his release. II. Mr. Busby’s Health Conditions
9. In September 2018, Mr. Busby was diagnosed with diabetes by a qualified medical doctor at the Jail. His blood sugar is checked three times per day, and he receives injections of insulin based on his blood sugar level. His blood sugar is measured and insulin administered by a nurse in the Jail.
10. Mr. Busby has also developed hypertension secondary to diabetes, which is managed with the medication lisinopril. He is supposed to take one tablet of this medication daily, which is receives from the Jail. His blood pressure is supposed to be checked on a weekly basis, but he reports that it was last checked on April 15, 2020. Because his blood pressure has not been checked recently, he is not sure if he is taking the correct amount of medication.
11. On August 31, 2018, Mr. Busby fell from a second story balcony. The fall resulted in multiple fractures of his femur and a crushed hip. On September 1, 2018, he had surgery to implant a new joint where his femur connects to his hip. The joint was taken from a cadaver. Mr. Busby’s doctors are concerned about his body rejecting the joint. He was told that he may have to have an additional major surgery to get the bone to graft properly. He is supposed to receive regular blood tests to check for infection but has not received a test since April 15, 2020.
12. Mr. Busby reports that the line for medication is crowded and requires very close contact with others. It is not possible to socially distance in the medication line. Depending on the nurse disbursing medication, Mr. Busby has to stand in this line on a daily basis to receive medication for his diabetes, hypertension and surgery recovery. Some nurses come into the pod,
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and some pass out meds at the entrance to the pod. Regardless of how it is handled, it is impossible to maintain six feet of distance from others in the medication line. III. Spatial Conditions and Inability to Practice Social Distancing in H Pod
13. Mr. Busby is in H pod, which is in the annex portion of the Shelby County Jail. The pod has 32 cells on two tiers. The east side of the pod consists of cells 1-10 on the lower tier and cells 15-24. Cells 1 and 2 are for a single-person, and Mr. Busby lives in one of the singleperson cells. The west side contains two tiers, with cells 25-32 on the top and cells 11-14 on the bottom. There are ten, round, four-foot in diameter tables down the middle of the pod. The guard desk and control panel sit along the north wall, and the only entrance to the pod is on the south wall. There are three showers on the south wall between the door and a supply closet. A small, mesh enclosed basketball court sits in the northwest corner of the pod. Mr. Busby reports that there are currently 42 men in H pod. Twenty-six men live in two-person cells, and 16 have a cell to themselves, including Mr. Busby and a person in the other one-person cell. There are currently three empty cells.
14. Four people in Mr. Busby’s pod tested positive in the April 24th round of testing and were moved to the 6th floor. Mr. Busby’s pod is on the 1st floor. Prior to those positive tests, Mr. Busby reports that the men were frequently in close proximity to other people in detention, they did not have masks, and they shared common surfaces with everyone else in H pod. Mr. Busby recounts that at least one person lost his sense of smell. Another man who tested positive accompanied Mr. Busby to the medical unit on April 15th because he didn’t feel well. They removed that man to the Shelby County Detention Center without testing him. He returned on May 7, 2020 and still had a dry cough and appeared ill.
15. According to Mr. Busby, jail staff move throughout H pod in close proximity to the people being detained. Several of these staff members do not wear masks or gloves. If guards
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need to access the control panel for the pod, distribute supplies, or do any number of tasks, they must cross the entire length of the pod weaving in and out of tables and chairs frequently occupied by the people housed in H pod. When the Jail changed to a COVID-19 protocol, they moved a desk into the sallyport outside the pod, but the guards still had to walk through the entire pod to get to the control desk.
16. Until May 14th, people being detained were on a rotating schedule of being allowed out of their cells for two or two and a half hours. People detained on side A would get out while people on side B were locked in their cells, and then they would switch. If a person was out during mealtime, they would eat at a small (4 feet in circumference) table with three other people. Mr. Busby reports that the tables are cleaned after each meal. Both during and after the COVID-19 protocol was in effect, people also sat at the tables to watch TV, play cards, talk, etc. People sitting at the tables are not able to keep six feet of distance between each other.
17. Mr. Busby reports that using the phone kiosk requires a person to stand shoulder to shoulder with other people. The kiosks are not sanitized or even wiped down between uses. They are only cleaned two times per day.
18. As of May 14, 2020, the Jail ended its COVID-19 protocol. Mr. Busby reports that officers are coming back in the pod more frequently, and things have returned to pre-COVID conditions in a matter of days. People are even getting haircuts in the pod again.
19. There has been no mention of re-testing, nor are officers social distancing from each other or detained people. For example, Mr. Busby has witnessed officers congregating in close proximity around a desk near his pod. IV. Hygienic Condition in H Pod
20. According to Mr. Busby, the Jail provides a bar of soap and a small bottle of liquid soap to each detained person. Staff in the Jail often run out of soap and are unable to provide
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additional bars if people run out. Mr. Busby reports that a person could go several days without soap if he runs out. Mr. Busby is able to purchase additional soap from commissary because he has funds in his commissary account. However, there are several other people who are not able to buy soap, and they may go days or longer without soap.
21. Mr. Busby reports that the pod has only been sprayed down with cleaning/sanitizing solution only once, on May 12, since concerns about the pandemic began in March 2020.
22. Mr. Busby has never seen hand sanitizer in the pod. He does not recall seeing guards or prison staff wash their hands or use hand sanitizer. The guards frequently come close to or have contact with people who are detained in the pod.
23. People detained in the Jail were provided one mask on or around April 22, 2020. Mr. Busby was only able to obtain one replacement mask by requesting one from a guard who was near him and had multiple masks in his hands. However, most of the other people detained in his pod have not received replacement masks.
V. Conditions in Other Pods 24. The pod adjacent to H pod, which has a similar layout, had three people test positive
on May 8, 2020. Mr. Busby reports that occasionally, and often on weekends, when the staffing is insufficient, guards perform roving patrols in multiple pods at one time. Guards are constantly moving among the people in the pod and are often moving among different pods. Several guards do not wear masks. Those that do wear masks have used the same mask for several weeks.
25. Mr. Busby also reports that two people in pods G and J tested positive on May 8, 2020. People detained in the G and J pods are workers (known as “rockmen”), responsible for laundry, maintenance, and food preparation. After two people tested positive for COVID-19, the other men in those pods continued to perform their jobs as usual, moving throughout the Jail
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performing their tasks, putting them in frequent contact with others despite having been exposed to COVID-19. VI. Medical Treatment in Shelby County Jail
26. Mr. Busby reports that several people with COVID-19 symptoms have refused to tell nurses about their symptoms for fear of being sent to the 6th floor quarantine pods.
27. Mr. Busby reports that a man in his pod was sent out to quarantine, came back, and showed symptoms again but was not sent back to quarantine. He reports that people are not really being quarantined.
28. On May 19, 2020, two men from the quarantine pod 6A returned to H pod and described a very crowded quarantine environment where people were sleeping in “boats” on the floor and the conditions were described as filthy. Mr. Busby reports that there were more than 60 men in each of three pods on the 6th floor. One of the men who returned to H pod had been hospitalized due to COVID-19. VII. Grievance
29. Mr. Busby filed a grievance on May 11, 2020, in which he requested PPE and to be allowed to comply with social distance recommendations. He asked for the Jail to release him if they could not provide those things. As of May 19th, he had not received any response to his grievance.
30. Mr. Busby has been paying close attention to news about COVID-19 and its spread throughout the community. He described an area within his pod where he maintains a collection of news clippings about the pandemic. Consequently, he is highly aware of the disease, how easily it spreads, and his particular vulnerability to severe illness or death given his diabetes and hypertension. He consistently expressed concern about his inability to follow the recommendations
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Case 2:20-cv-02359 Document 2-7 Filed 05/20/20 Page 8 of 8 PageID 181 of public health experts. He feels a great deal of anxiety about contracting COVID-19 while he remains in the Jail and often cannot sleep because he is so worried. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on this 20th day of May, 2020 Memphis, Tennessee /s/ Josh Spickler Josh Spickler Just City P.O. Box 41852 Memphis, TN 38103 (901) 2062226 josh@justcity.org
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

Favian Busby; and Michael Edgington, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Shelby County Sherriff’s Office; and Floyd Bonner, Jr., in his official capacity, and the Shelby County Sheriff;
Respondents-Defendants.

Case No. _______

DECLARATION OF MICHAEL R. WORKING IN SUPPORT OF PETITIONERSPLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 2:20-cv-02359 Document 2-8 Filed 05/20/20 Page 2 of 6 PageID 183
I, Michael Working, pursuant to 28 U.S.C. § 1746, declare as follows: 1. I am an attorney practicing criminal defense in the Shelby County courts. I
represent clients at all stages of their criminal prosecution, and I am familiar with the relevant appellate practices that accompany such representation.
2. I have been practicing law for fourteen (14) years. 3. I have practiced criminal defense for thirteen (13) of those years in Shelby County. 4. I am a graduate of The University of Memphis School of Law. 5. I am the President-Elect of the Tennessee Association of Criminal Defense Lawyers, and beginning in July, 2020, I will serve as President of the Tennessee Association of Criminal Defense Lawyers (“TACDL”) for a term of one year. I will then serve another year advising the ensuing President. 6. I continue to represent clients who are incarcerated in the Shelby County Jail at 201 Poplar. I have visited clients in the Shelby County Jail hundreds of times in the past 13 years. 7. I make this declaration of my personal knowledge based on conversations with my clients and familiarity with customs and practices inside the jail. I. COVID-19 Concerns at the Shelby County Jail 8. Several of my clients have tested positive for the novel coronavirus. Several have not been tested despite being housed near and sharing a ventilation system with those who have tested positive for the virus. 9. Communication with clients has been almost impossible during the pandemic. 10. A process for privileged and private communications between defendants and attorneys is not currently provided by the Shelby County Sheriff’s Office.
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11. Video conferencing is the only method available for communicating with most inmates. Those calls occur on a system with a sign posted above the screen that says to the best of my recollection, “these calls are being recorded.”
12. After the defense bar raised this concern with local judges, several attorneys informed me that the sign now says the calls are not being recorded.
13. I have seen the calls played before juries and believe that the calls can still be recorded. I have no direct knowledge of whether the calls are being recorded.
14. During the few opportunities I have had to communicate with clients via a fiveminute free phone call that they are allowed, defendants mostly try to pass messages about their health status to their families.
15. My clients that have been able to contact me report that the Shelby County Jail is not adhering to public health protocols to protect them from contracting COVID-19 in the Jail.
16. For example, the Jail does not house detained people in a way that allows for social distancing of six feet or more at all times. Most clients are housed in open pods that do not allow for social distancing, but are encouraged to social distance the best they can by the staff.
17. Additionally, clients have reported the difficulty in receiving basic humanitarian and hygienic services in the jail.
18. The Jail has not provided any of my clients with any hand sanitizer. 19. The Jail has not provided my clients with disinfecting supplies or cleaning supplies. 20. The Jail has not provided my clients with reliable access to hand soap so that they can wash their hands. All clients have informed me that soap must be purchased through an inmate’s private commissary account. If an inmate cannot afford commissary, the Jail issues that inmate one bar of soap per week.
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21. Clients have also reported that, due to depleted staff, their clothes had not been cleaned in the laundry for an entire week, meaning that detained people wore the same clothes for one week.
22. Further, the Jail does not test individuals for COVID-19 when they are booked into custody, nor does it test all staff who enter and exit the Jail on a daily basis.
23. I have had clients describe people in their pod who exhibit symptoms of COVID19, including constant coughing, and various other symptoms of the virus. Those people have not been tested for COVID-19. One client noted that symptomatic detainees remained in their housing unit for “about two weeks” without ever being tested.
24. All clients state that jail staff or working detainees enter their pod to provide meals three times daily and a fourth time for mail call as is the regular practice before the pandemic.
25. Some clients have described that new people are added to their pod regularly about every other day. Others lawyers have told me that their clients have stated that they are housed in the “program pod” and new people have not been placed in their pod for seven months.
26. According to clients that tested positive for the virus and were assigned to sixth floor COVID-19 quarantine pods, those infected with the virus were also not provided hand sanitizer and were not allowed any soap other than the policy described above in ¶¶ 18-20.
27. Several clients housed on the fifth floor have expressed concern about contracting a respiratory virus from COVID-19 positive detainees quarantined on the sixth floor as both groups are breathing the same air through the same ventilation system. II. Practices in Local Courts
28. In my experience, it typically takes at best five business days for a request for a bond reduction motion to be heard by the court.
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29. To revisit a client’s initial ex parte bond setting, I would have to file a written motion for bond review, submit an order for a pre-trial report to be submitted to the trial court, possibly wait for the State to respond, and then set it on for a hearing. If the Court decided to issue a ruling on the bond request, I estimate the process would take approximately five days to two weeks in the local courts.
30. An appeal of a request for a bond reduction goes to the Tennessee Court of Criminal Appeals. This process typically takes several weeks, and again involves an opportunity for the state to respond, and an eventual order from the Court of Criminal Appeals. I estimate that this process under normal circumstances generally takes a month to six weeks.
31. For clients in jail pre-trial, this process is the primary method for seeking release. 32. To my knowledge, by statute, a state court writ of habeas corpus is only available where a petitioner raises: (1) a claim that a void judgment was facially invalid because the convicting court was without jurisdiction or authority to sentence the defendant; or (2) a claim that a defendant's sentence has expired. Benson v. State, 2019 WL 1388195 (Tenn. Ct. Cr. App. 2019) (discussing T.C.A. §§ 29-21-101, -130, citing Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)). To my knowledge, a habeas petition in the Tennessee state courts is not available for pretrial detainees. 33. Tennessee courts, including those in Shelby County, are issuing emergency closures and significantly slowing their operations in response to the COVID-19 pandemic. 34. Even when a client gets a court date, it is highly reliable that a defendant will not be transported to court as scheduled. Jail staff sometimes refuses to transport clients due to COVID-19 concerns. 35. All transportation between inmates in TDOC facilities and local jails has stopped.
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36. Clients are also usually not brought to court from the attached jail. Until today, I had not seen any defendant, even those who are not my client, brought into a courtroom since March 10th, 2020 just days before the statewide court closure.
37. Court cancellations are common and vary by judge. Some court dates for incarcerated inmates are reset prior to court opening. Cases may also be reset prior to defense counsel being allowed into the courtroom because a particular prosecutor may not be present.
38. I am not aware of any avenue in the state court system through which a class of pretrial detainees could seek relief regarding the constitutionality of their confinement in the Shelby County Jail. As a TACDL officer, I have researched this issue often. I declare under penalty of perjury that the foregoing is true and correct. Executed this 20 day of May, 2020. /s/ Michael R. Working Michael R. Working, TN BoPR #025118 Owner, The Working Law Firm 917 South Cooper Memphis, TN 38104 (901) 507-4200
6

 
 Case 2:20-cv-02359-SHL Document 25 Filed 05/26/20 Page 1 of 2 PageID 321

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY, ET AL.,

)

)

Plaintiff,

)

)

vs.

)

No.: 2:20-CV-02359-SHL

)

FLOYD BONNER, JR., ET AL.,

)

)

Defendants.

)

______________________________________________________________________________

RESPONDENTS-DEFENDANTS’ MOTION TO DISMISS ______________________________________________________________________________

Respondents-Defendants, Floyd Bonner, Jr., Shelby County Sheriff and the Shelby County

Sheriff’s Office, by and through their undersigned counsel, respectfully move the Court to dismiss

the Petitioners’ Petition for Writ of Habeas Corpus pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure. In support of this motion, Respondents-Defendants rely upon their

Memorandum in Support of Respondents-Defendants’ Motion to Dismiss.

Respectfully submitted,

PENTECOST, GLENN & MAULDIN, PLLC
By: s/Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995 – Telephone (731) 668-7163 – Fax jpentecost@pgmfirm.com ntilly@pgmfirm.com astokes@pgmfirm.com

Case 2:20-cv-02359-SHL Document 25 Filed 05/26/20 Page 2 of 2 PageID 322

AND
Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100
Attorneys for Respondents-Defendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document (Respondents-Defendants’ Motion to Dismiss) was served via ECF filing system, upon the following:

Amreeta Mathai Andrea Woods ACLU 125 Broad Street New York, NY 10004

Jonathan Silberstein-Loeb Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019

Brice Moffatt Timmons Black, Mclaren, Jones, Ryland & Griffee, P.C. 530 Oak Court Drive, Ste. 360 Memphis, TN 38117

on or before the filing date thereof. DATE: This the 26th day of May, 2020.

By: s/Nathan D. Tilly James I. Pentecost Nathan D. Tilly J. Austin Stokes

Case 2:20-cv-02359-SHL Document 25-1 Filed 05/26/20 Page 1 of 15 PageID 323

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY, ET AL.,

)

)

Plaintiff,

)

)

vs.

)

No.: 2:20-CV-02359-SHL

)

FLOYD BONNER, JR., ET AL.,

)

)

Defendants.

)

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF RESPONDENTS-DEFENDANTS’ MOTION TO DISMISS
______________________________________________________________________________

Respondents-Defendants, Floyd Bonner, Jr., Shelby County Sheriff and the Shelby County

Sheriff’s Office (hereinafter referred to as “Defendants”), by and through their undersigned

counsel, submit this Memorandum in Support of Respondents-Defendants’ Motion to Dismiss.

BACKGROUND

Petitioners, Michael Edgington and Favian Busby, are Tennessee state pretrial detainees

being held by the Shelby County Sheriff’s Office in the Shelby County Jail. (D.E. 1, ¶¶ 7-8).

Petitioners bring a petition for writ of habeas corpus pursuant to 28. U.S.C. § 2241, asking this

Court to order them and a class of other detainees to be released from jail because of fear that they

may contact COVID-19. (D.E. 1). In making their request, Petitioners allege there are specific

conditions at the Shelby County Jail that make them susceptible to being infected by COVID-19.

For example, they allege that during mealtimes, detainees are required to “line up inches apart.”

(D.E. 1, ¶ 30). They further claim that they must “use and reuse” the same “high-touch” items,

such as telephones and kiosks, but that the jail does not provide disinfectant or other cleaning

supplies to sanitize these items. (D.E. 1, ¶ 31). They also allege that the jail does not test enough

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new arrestees for COVID-19 and worry that asymptomatic detainees could be infecting others. (D.E. 1, ¶ 32). They further claim that on two occasions, detainees who had been exposed to COVID-19 were “pepper sprayed.” (D.E. 1, ¶¶ 33-34). Petitioners claim that by remaining in the Shelby County Jail, their constitutional rights secured under the Fourteenth Amendment are being violated. (D.E. 1, ¶¶ 52-61). They also claim that the Shelby County Jail is violating Title II of the ADA and Section 504 of the Rehabilitation Act. (D.E. 1, ¶¶ 62-70).
STANDARD To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Assuming they are true, a plaintiff’s allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555.
ARGUMENT A. Petitioners’ Petition Must Be Dismissed Because Petitioners Have Not Exhausted
State Law Remedies. It is well-settled that “a state prisoner’s federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013); Graham v. Snyder, 68 F. App’x 589, 590 (6th Cir. 2003). Thus, the Sixth Circuit has held that although § 2241 “establishes jurisdiction in the federal courts to consider pretrial habeas corpus petitions, the courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state courts or by
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other state procedures available to the petitioner.” Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir. 1981); see also, Bronston v. Sabbatine, 1993 U.S. App. LEXIS 29970 (6th Cir. Nov. 16, 1993) (dismissing § 2241 petition because petitioner had not exhausted his state court remedies prior to filing the petition); Martin-Trigona v. Shiff, 702 F.2d 380, 388 (2d Cir. 1983) (“[T]he writ of habeas corpus is not a substitute for a regular route of appeal.”). The requirement that a habeas petitioner exhaust state-court remedies before seeking relief in federal court “protect[s] the state courts’ opportunity to confront initially and resolve constitutional issues arising within their jurisdictions and to limit federal judicial interference in state adjudicatory processes.” Atkins, 644 F.2d at 546.
Importantly, the petitioner has the burden of showing exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). When a petitioner cannot show that he has exhausted his administrative remedies, his habeas petition must be dismissed. See e.g., Patton v. Bonner, 2020 U.S. Dist. LEXIS 74470, *4-5 (W.D. Tenn. Apr. 28, 2020) (dismissing a pretrial state detainee’s § 2241 petition when he failed to exhaust his state court remedies); Burke v. Hall, 2020 U.S. Dist. LEXIS 17774 (M.D. Tenn. Feb. 4. 2020) (denying without prejudice § 2241 habeas petition seeking immediate release because it was “apparent on the face of Burke’s . . . petition that he did not exhaust his administrative remedies”); Greenwood v. Batts, 2018 U.S. Dist. LEXIS 115875, *4 (W.D. Tenn. July 12, 2018) (dismissing a federal detainee’s § 2241 petition for failure to exhaust administrative remedies); Reid v. Mackie, 2011 U.S. Dist. LEXIS 123596, *7-8 (E.D. Mich. Oct. 26, 2011) (dismissing a § 2241 petition because the petitioner failed to allege that he exhausted state remedies).
Exhaustion requires a petitioner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s
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constitutional claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); see also Picard v. Connor, 404 U.S. 270, 275-77 (1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state’s highest court. O’Sullivan, 526 U.S. at 845; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The district court can and must raise the exhaustion issue sua sponte when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen v. Perini, 424 F.2d 134, 138-39 (6th Cir. 1970).
In light of these considerations, numerous District Courts in the Sixth Circuit have already dismissed similar habeas petitions in which petitioners sought release from confinement due to the COVID-19 epidemic. See e.g., Williams v. Rapelje, 2020 U.S. Dist. LEXIS 84609, *3 (E.D. Mich. May 14, 2020) (dismissing § 2254 petition seeking relief based upon COVID-19 because the petitioner had not exhausted state law remedies); Makin v. Wainwright, 2020 U.S. Dist. LEXIS 76007, *2 (N.D. Ohio Apr. 30, 2020) (dismissing § 2241 petition seeking relief on the basis of the COVID-19 pandemic for failure to exhaust state remedies); Simmons v. Warden, FCI-Ashland, 2020 U.S. Dist. LEXIS 67855, *6 (E.D. Ky. Apr. 17, 2020) (denying without prejudice defendant’s habeas petition, pursuant to 28 U.S.C. § 2241, for immediate release due to COVID-19 for failure to exhaust administrative remedies); Petry-Blanchard v. Louis, 2020 U.S. Dist. LEXIS 57146, *11 (W.D. Ky. Apr. 1, 2020) (dismissing § 2241 petition because the petition failed to demonstrate exhaustion of administrative remedies).
In Makin, the Court dismissed an Ohio state prisoner’s petition for habeas relief due to the COVID-19 pandemic when he failed to plead that he exhausted his state law remedies prior to
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bringing suit. Makin, 2020 U.S. Dist. LEXIS 76007 at *2-4 (N.D. Ohio Apr. 30, 2020). The Court
explained:
[W]hether under § 2241 or § 2254, a state prisoner must demonstrate that he has exhausted his available state remedies before asserting a federal habeas corpus claim. Collins v. Million, 121 F. App’x 628 (6th Cir. 2005). It is well-established that an application for a writ of habeas corpus by a state prisoner may not be granted unless it appears that the petitioner has exhausted all “remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995) (per curiam). “In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842, (1999). The requirement that a state prisoner exhaust available state remedies as to federal claims prior to seeking federal habeas corpus relief is grounded in principles of comity. Coleman v. Thompson, 501 U.S. 722, 731, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). In the federal system, states should have first opportunity to address and correct alleged violations of a state prisoner's federal rights. Id.
It is clear on the face on the Petition that Petitioner has not exhausted his state remedies as to the federal claims he asserts. Although Petitioner contends that pursuing a grievance in the prison system would be futile (see Doc. No. 1 at ¶ 15), he has not demonstrated that relief as to his claims is unavailable to him in the Ohio courts. Petitioner cannot seek federal habeas corpus relief unless and until he has exhausted such relief. The state courts must have the first opportunity to address the federal violations he asserts in connection with his state incarceration.
Id.
In Money v. Pritzker, 2020 U.S. Dist. LEXIS 63599 (N.D. Ill. Apr. 10, 2020), the Northern
District of Illinois likewise found that the plaintiffs’ failure to exhaust was fatal to their claims.
There, plaintiffs filed a habeas petition in federal court seeking their release from incarceration
alleging the prison setting made them (and other purported class members) vulnerable to COVID-
19 and the only way to solve the problem was for release. Id. at *2. The court dismissed plaintiffs’
habeas petition, holding that plaintiffs’ failed to raise their claims in the state courts prior to filing
suit in federal court. Id. at *21-22. The court noted that the state courts were available for
emergency matters. Id at *21. Notably, the court held, “[T]o be sure, exhaustion requirements can
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(and should) be waived when relief is truly unavailable. But waiving them here - when state courts clearly were available...would turn the habeas system upside down.” Id. at *22.
Tennessee courts are given explicit authority to release a pretrial detainee by setting certain conditions on release. See Tenn. Code Ann. 40-11-116. Additionally, any time after the trial court sets bond, criminal defendants may – and often do – move the trial court to alter their bond or other conditions of their release. Criminal defendants, before or after conviction, likewise have the right the obtain review of an order from the trial court “granting, denying, setting, or altering conditions” of the defendant’s release. Tenn. R. App. P. 8(a); see also Tenn. Code Ann. 40-11-144. Habeas relief is also available in Tennessee courts. Tenn. Code Ann. § 29-21-204. Further, while the Tennessee Supreme Court has suspended most in-person proceedings in all state and local courts in Tennessee due to the COVID-19 pandemic, the Court has not suspended in-person “proceedings necessary to protect constitutional rights of criminal defendants including bond-related matters and plea agreements for incarcerated individuals.” See In re: Covid-19 Pandemic, No. ADM202000428 (Tenn. March 13, 2020). In fact, not at any time have such proceedings been suspended in the state of Tennessee and they have continued in Shelby County. Indeed, numerous criminal pretrial defendants have sought release via motion due to COVID-19. Additionally, on March 25, 2020, the Tennessee Supreme Court entered another COVID-19 related order in which the Court directed that each judicial district
[S]hall develop a written plan to affirmatively address issues regarding the incarceration of nonviolent offenders in furtherance of efforts to reduce the jail population, including but not limited to bond reductions or eliminations, deferred sentences, and suspended sentences. The presiding judge or the designee of the presiding judge of each judicial district shall submit its plan to the Administrative Office of the Courts by the close of business on Monday, March 30, 2020, absent an extension granted by the Chief Justice.
6

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See In Re: COVID-19 Pandemic, ADM2020-00428 (Tenn. March 25, 2020). Per the March 25, 2020 order, each judicial district in Tennessee developed a written jail population reduction plan as directed by the Court. See In Re: COVID-19 Pandemic, ADM2020-00428 (Tenn. Apr. 27, 2020). As of March 13, 2020, the date of the Tennessee Supreme Court’s first order, the total population in county jails across the state stood at 27,169. By April 21, 2020, the overall county jail population in Tennessee had decreased to 19,126. Id. Said data reveals that state law remedies to obtain release from jail due to COVID-19 are available and are being used by criminal defendants across the state of Tennessee.
Abstention from the exercise of the habeas corpus jurisdiction is justified by the doctrine of comity, a recognition of the concurrent jurisdiction created by our federal system of government in the separate state and national sovereignties. Intrusion into state proceedings already underway is warranted only in extraordinary circumstances. Atkins, 644 F.2d 543 at 546. Importantly, Sheriffs of Tennessee are not just county employees. They are Tennessee constitutional officers. Constitution of Tennessee, Art. VII § 1; Smith v. Plummer, 834 S.W.2d 311, 313 (Tenn. 1991). The Sheriff’s duties are prescribed by over 100 Tennessee statutes. See Ray v. Madison Cty., 536 S.W.3d 824, 841 (Tenn. 2017). Pursuant to their constitutional duties and Tennessee law, the Sheriff must follow all “process and orders of the courts of record of [Tennessee].” Tenn. Code Ann. § 8-8-201. Sheriffs must also “[t]ake charge and custody of the jail of the sheriff’s county, and of the prisoners therein; receive those lawfully committed, and keep them personally, or by deputies or jailer, until discharged by law.” Tenn. Code Ann. § 8-8-201(a)(3). They similarly have the duty to see that the orders of the courts are enforced. Tenn. Code Ann. § 8-8-201(a)(1); Shorts v. Bartholomew, 278 S.W.3d 268, 281 (Tenn. 2009). Failure to obey any court process is grounds
7

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for the Sheriff to be held in contempt of court and can even lead to civil liability. Tenn. Code Ann. § 8-8-207.
Here, Petitioners ask this Court to order the Sheriff of Tennessee to violate his duties under the Tennessee Constitution and Tennessee law by releasing inmates without appropriate orders from Tennessee Courts. Such inquiries are clearly within the purview of the Tennessee state courts, which are presiding over the Petitioners’ and proposed class members’ criminal charges, and the Shelby County Sheriff has a duty under the Tennessee Constitution and Tennessee law to follow the directives of those courts. Prior to bringing their Petition, Petitioners did not even attempt to begin to pursue any state law remedy, let alone exhaust their state law remedies prior to filing their petition.1 Because Petitioners have failed to exhaust their state law remedies, this Court should decline jurisdiction and the petition must be dismissed.
B. Plaintiffs’ Petition Must Be Dismissed Because Petitioners are Challenging the Conditions of Confinement, Not the “Fact or Duration” of Confinement. A habeas corpus petition under 28 U.S.C. § 2241 is typically “reserved for challenges to
the execution of a sentence, such as a computation of parole or sentencing credits....” Velasco v. Lamanna, 16 F. App’x 311, 314 (6th Cir. 2001) (citing Cohen v. United States, 593 F.2d 766, 77071 (6th Cir. 1979)); see Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004). Additionally, while the Sixth Circuit has long recognized that pretrial detainees may pursue habeas relief under § 2241, pretrial detainees can do so only in rare, “extraordinary” instances. Christian v. Wellington, 739 F.3d 294, 297 (6th Cir. 2014). In fact, the Sixth Circuit has approved consideration of a pretrial § 2241 petition only in three exceptional circumstances: (1) when the petitioner seeks a speedy trial, Atkins 644 F.2d at 546-47; (2) when a petitioner seeks to
1 The Tennessee’s online Public Case History reveals that neither of the named petitioners has ever had a case or motion pending before the Tennessee Court of Appeals.http://www.tsc.state.tn.us/courts/supremecourt/public-case-history
8

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avoid a second trial on double jeopardy grounds, Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir. 1981); and (3) when a petitioner faces prejudice from prior ineffective assistance of counsel and due process violations on retrial, Turner v. Tennessee, 858 F.2d 1201, 1204 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902, 109 S. Ct. 3208, 106 L. Ed. 2d 559 (1990).
While habeas corpus relief is available to pretrial detainees in the above-mentioned limited circumstances, habeas corpus is never available to pre- or post-trial prisoners who are complaining only about their conditions of confinement. See e.g., Nelson v. Campbell, 541 U.S. 637, 643 (2004) (constitutional claims that merely challenge the conditions of a prisoner’s confinement as opposed to the fact of his conviction or the duration of his sentence fall outside the “core” of habeas corpus); Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013) (holding that “§ 2241 is not the proper vehicle for a prisoner to challenge his conditions of confinement.”); Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004) (concluding, “§ 2241 is a vehicle not for challenging prison conditions, but for challenging matters concerning the execution of a sentence such as the computation of good-time credits.”); Boyce v. Ashcroft, 251 F.3d 911, 914 (10th Cir. 2001) (holding that a claim regarding a transfer to higher security prison related to conditions of confinement was not cognizable under Section 2241), vacated as moot, 268 F.3d 953, 954 (10th Cir. 2001); Schipke v. Van Buren, 239 F. App’x. 85, 86 (5th Cir. 2007) (holding that the petitioner’s claims were outside scope of § 2241 motion where none of the claims raised by petitioner challenged the fact or duration of her confinement and none, if prevailed on, would have entitled her to accelerated release). Even when a habeas petitioner alleges that inadequate conditions of confinement create the risk of serious physical injury, illness, or death, a petition for a writ of habeas corpus is not the proper vehicle for such a claim. See, e.g., Spencer v. Bragg, 310 F. App’x 678, 679 (5th Cir. 2009) (affirming the lower court’s dismissal of petitioner’s habeas
9

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claim even though he alleged that the conditions of confinement endangered his life).
Further, the Sixth Circuit has held that a writ of habeas corpus is not the proper vehicle to
bring a deliberate indifference claim. Andrews v. Quintana, 2018 U.S. App. LEXIS 12096, *3 (6th
Cir. May 8, 2018) (finding that the petitioner’s claim that prison officials or employees were
deliberately indifferent was not cognizable in a § 2241 habeas petition). Likewise, in Burton v.
McGlasson, 2014 U.S. Dist. LEXIS 22642 (E.D. Mich. Feb. 24, 2014), the Eastern District of
Michigan considered whether a petitioner can bring a deliberate indifference claim challenging his
conditions of confinement. The Court held:
Where a prisoner is challenging the very fact or duration of his physical imprisonment and the relief that he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). However, habeas corpus is not available to prisoners who are complaining only of mistreatment during their legal incarceration. See Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007). Complaints like the ones raised by petitioner which involve conditions of confinement “do not relate to the legality of the petitioner’s confinement, nor do they relate to the legal sufficiency of the criminal court proceedings which resulted in the incarceration of the petitioner.” Id. (quoting Maddux v. Rose, 483 F. Supp. 661, 672 (E.D. Tenn. 1980)). A petition for writ of habeas corpus is not the proper vehicle for a prisoner’s claim that prison officials have been deliberately indifferent to his medical needs, because release from custody is not an available remedy for a deliberate indifference claim. See In re Owens, 525 Fed. App’x 287, 290 (6th Cir. 2013); Glaus v. Anderson,408 F. 3d 382, 387 (7th Cir. 2005); Hamilton v. Gansheimer,536 F. Supp. 2d 825, 84142 (N.D. Ohio 2008). An inmate like petitioner should therefore bring his medical indifference claim as a civil rights complaint. Glaus, 408 F. 3d at 386-87. Because petitioner challenges only the conditions of his confinement, his claims “fall outside of the cognizable core of habeas corpus relief.” See Hodges v. Bell,170 Fed. App'x 389, 393 (6th Cir. 2006).
Burton, 2014 U.S. Dist. LEXIS 22642, *1-3 (emphasis added).
More specifically, the Northern District Court of Ohio recently considered whether a
habeas corpus petition under 28 U.S.C. § 2241 could be utilized to request immediate release from
10

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prison due to the COVID-19 pandemic. Barrett v. Carvajal, 2020 U.S. Dist. LEXIS 84873 (N.D.
Ohio May 14, 2020). In dismissing the petition, the Court explained:
Here, Barrett seeks relief on basis of the “deteriorating conditions [at FCI Elkton] during the COVID-19 pandemic.” (Pet. at 1, 11.) Although he seeks relief in the form of immediate release from prison—which falls within the ambit of habeas corpus relief—the basis for this relief is clearly grounded in his conditions of confinement at FCI Elkton and the alleged resulting constitutional violations. Because Barrett does not challenge the execution of his sentence, § 2241 is not the proper vehicle for his claims. See, e.g., Bolden v. Ponce, No. 2:20cv-03870-JFW-MAA, 2020 U.S. Dist. LEXIS 77249, 2020 WL 2097751, at *2 (C.D. Cal. May 1, 2020) (dismissing for lack of jurisdiction § 2241 petition for immediate release due to COVID-19 circumstances).
Barrett, 2020 U.S. Dist. LEXIS 84873 at *6-7.
Likewise, the Northern District of Texas recently held that habeas was the improper vehicle
for pre-trial detainees to seek release from jail due to COVID-19. See Sanchez v. Dallas County,
2020 U.S. Dist. LEXIS 90667, *39 (N.D. Tex. May 22, 2020). The Court explained:
Public safety concerns aside, habeas is not available to review questions unrelated to the cause of detention. Pierre v. U.S., 525 F.2d 933, 935 (5th Cir. 1976). Its sole function is to grant relief from unlawful imprisonment or custody, and it cannot be used properly for any other purpose. Id. at 935-36. An inmate is not entitled to relief in a habeas corpus petition based on civil rights claims related to the conditions of his confinement. Cf. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
Sanchez v. Dallas County, 2020 U.S. Dist. LEXIS 90667, *39-40 (N.D. Tex. May 22, 2020).
Here, as in Barrett and Sanchez, Petitioners complain about their conditions of
confinement, not the underlying reasons for their detention. As set forth in their petition,
Petitioners identify specific practices undertaken at the Shelby County Jail which they assert
violate their constitutional rights. (D.E. 1 ¶¶ 28-34). Even if Petitioners’ complaints are true, they
relate to conditions at the Shelby County Jail, not that their confinement was procured improperly
or illegally. To prove their alleged injuries, they have to show that Respondents acted with
“deliberate indifference,” not that the underlying reasons for their incarceration are improper or
11

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illegal. Whatever their conditions of confinement, they are not related to Petitioners’ “fact or duration” of their respective confinements. Thus, a habeas corpus petition under § 2241 is not the proper vehicle for Petitioners’ to present their claims.
Importantly, the Sixth Circuit has held that when a prisoner asserts conditions of confinement claims in a habeas corpus petition under § 2241, it is not appropriate for the court to attempt to re-characterize the claims. Instead, the court should dismiss the petition. Shah v. Quintana, 2016 U.S. Dist. LEXIS 59608 at *3 (E.D. Ky. May 5, 2016) (citing to Martin v. Overton, 391 F.3d 710, 714-15 (6th Cir. 2004)). Accordingly, Petitioners’ petition should be dismissed.
C. If Petitioner’s Claims Are Cognizable, Then They Are Subject to the Requirements for Relief in 18 U.S.C. § 3626. If Petitioners’ claims challenging their conditions of confinement were cognizable in
habeas (they are not), then the Prison Litigation Report Act’s (“PLRA”) requirements for prisoner release orders must apply. Santana v. United States, 98 F.3d 752, 756 (3d Cir. 1996) (“the PLRA applies to special proceedings like habeas corpus” where claims are analogous to typical suits brought under § 1983); see also Blair-Bey v. Quick, 151 F.3d 1036, 1040-42 (D.C. Cir. 1998) (where challenges to prison conditions “are permissibly brought in habeas corpus,” they would be subject to the PLRA, “as they are precisely the sort of actions that the PLRA sought to address”), modified by other grounds by reh’g, 151 F.3d 1036 (D.C. Cir. 1998). “[I]t would defeat the purpose of the PLRA if a prisoner could evade its requirements by simply . . .joining it with a petition for habeas corpus.” See Blair-Bey, 151 F.3d at 1042.
A federal court may not enter a prisoner release order unless there has been a prior order “for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prison release order,” and respondent “has had a reasonable amount of time to comply with the previous court order[].” 18 U.S.C. § 3626(a)(3)(A). Moreover, only a three-
12

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judge court may enter a prison release order and can only do so after a prisoner files an appropriate request. 18 U.S.C. § 3626(3). The three-judge panel may enter such an order “only if the court finds by clear and convincing evidence that—(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 18 U.S.C. § 3626(3). Here, Petitioners have failed to satisfy obviously not satisfied any of these requirements. See, e.g., Coleman v. Newsom, 2020 U.S. Dist. LEXIS 62575 (E.D. Cal. April 4, 2020) (threejudge court pursuant to 28 U.S.C. § 2248 that denied the petitioners’ emergency motion to modify population reduction order due to COVID-19, noting that (1) prisoners must first go to single federal judge who, if finding constitutional violation, “may order [prison authorities] to take steps short of release necessary to remedy that violation; and (2) if lesser remedy “proves inadequate,” [petitioners] may return to convened three-judge panel to determine whether release order is appropriate under 18 U.S.C. § 3626(a)(3)).
Here, Petitioners should not be allowed to circumvent the PLRA’s unambiguous requirements to obtain release. Petitioners plainly complain about the current prison conditions of the Shelby County Jail. Such complaints fall squarely within the purview of the PLRA. Because Petitioners have failed to comply with the PLRA prior to seeking release, their petition must be dismissed.
CONCLUSION Based upon the foregoing, the Petition should be dismissed in its entirety.
13

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Respectfully submitted, PENTECOST, GLENN & MAULDIN, PLLC By: s/Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995 – Telephone (731) 668-7163 – Fax jpentecost@pgmfirm.com ntilly@pgmfirm.com astokes@pgmfirm.com AND Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100 Attorneys for Respondents-Defendants
14

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document (Memorandum in Support of Respondents-Defendants’ Motion to Dismiss) was served via ECF filing system, upon the following:

Amreeta Mathai Andrea Woods ACLU 125 Broad Street New York, NY 10004

Jonathan Silberstein-Loeb Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019

Brice Moffatt Timmons Black, Mclaren, Jones, Ryland & Griffee, P.C. 530 Oak Court Drive, Ste. 360 Memphis, TN 38117

on or before the filing date thereof.

DATE: This the 26th day of May, 2020.

By: s/Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308)

15

 
 Case 2:20-cv-02359-SHL Document 26 Filed 05/26/20 Page 1 of 8 PageID 338

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY, ET AL.,

)

)

Plaintiff,

)

)

vs.

)

No.: 2:20-CV-02359-SHL

)

FLOYD BONNER, JR., ET AL.,

)

)

Defendants.

)

______________________________________________________________________________

RESPONDENTS-DEFENDANTS’ RESPONSE IN OPPOSITION TO PETITIONERSPLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
______________________________________________________________________________

Respondents-Defendants, Floyd Bonner, Jr., Shelby County Sheriff and the Shelby County

Sheriff’s Office (“Respondents”), by and through their undersigned counsel, respond in opposition

to Petitioners-Plaintiffs’ (“Petitioners”) Motion for Class Certification (ECF No. 3).1

STANDARD

To be certified, the class must first meet the four “threshold requirements” of Federal Rule

of Civil Procedure 23(a): (1) numerosity (a class so large that joinder of all members is

impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality

(named parties' claims or defenses are typical of the class); and (4) adequacy of representation

(representatives will fairly and adequately protect the interests of the class). Whitlock v. FSL

Mgmt., LLC, 843 F.3d 1084, 1089-90 (6th Cir. 2016). In addition to satisfying the requirements of

Rule 23(a), the class must fit under one of the three subdivisions of Rule 23(b). Coleman v. GMAC,

296 F.3d 443, 446 (6th Cir. 2002). “The United States Court of Appeals for the Sixth Circuit has

1 Respondents-Defendants additionally rely upon and incorporate the arguments contained within their Motion to Dismiss and their Response in Opposition to Petitioners-Plaintiffs’ Motion for a Temporary Restraining Order filed in this cause.

Case 2:20-cv-02359-SHL Document 26 Filed 05/26/20 Page 2 of 8 PageID 339
recognized that the ‘class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Cole v. City of Memphis, 2014 U.S. Dist. LEXIS 183492, *11 (W.D. Tenn. Sept. 29, 2014) (citing In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013)). Accordingly, this Court has provided, “A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. at *11 (citing Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997) (explaining that plaintiffs bear the burden of establishing the propriety of class certification by a preponderance of the evidence)).
LAW & ARGUMENT A. FAILURE TO PRESENT ACTUAL EVIDENCE As a threshold matter, Petitioners have presented no actual evidence about the proposed class. Instead, Petitioners rely upon the allegations of their Petition and multiple exhibits and/or declarations containing hearsay, which is simply insufficient. See Rega v. Nationwide Mut. Ins. Co., 2012 U.S. Dist. LEXIS 151336, *10 (N.D. Ohio Oct. 22, 2012) (“[S]ome circuits expressly bar district courts from presuming that the plaintiffs' allegations in the complaint are 'true for purposes of the class motion…without resolving factual and legal issues that strongly influence the wisdom of class treatment.’”); see also Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012) (endorsing the view that a district court may probe behind the pleadings to decide the certification question when it is necessary to resolve disputed factual and legal issues that impact the wisdom of class treatment)). Thus, this Court should deny certification.2
2 Due to the lack of evidence offered by Petitioners, Petitioners have failed to establish the numerosity element necessary for class certification.

Case 2:20-cv-02359-SHL Document 26 Filed 05/26/20 Page 3 of 8 PageID 340
B. FAILURE TO ESTABLISH COMMONALITY AND/OR TYPICALITY
Under Rule 23(a)(2), a plaintiff must show that “there are questions of law or fact common
to the class.” Davis v. Cintas Corp., 717 F.3d 476, 487 (6th Cir. 2013); Fed. R. Civ. P. 23(a)(2). A
question of law or fact is common to the class if it is “capable of classwide resolution—which
means that its truth or falsity will resolve an issue that is central to the validity of each one of the
claims in one stroke.” Dukes, 131 S.Ct. at 2545. As the Supreme Court explained in Dukes:
What matters to class certification…is not the raising of common “questions”— even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.
Id.
Likewise, Petitioners’ claims must also be typical of the class members’ claims:
Typicality is met if the class members’ claims are “fairly encompassed by the named plaintiffs’ claims.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (en banc) (quoting [In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)]). This requirement insures that the representatives' interests are aligned with the interests of the represented class members so that, by pursuing their own interests, the class representatives also advocate the interests of the class members. Id.
These two concepts of commonality and typicality “tend to merge” in practice because both of them “serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Dukes, 131 S. Ct. at 2551 n.5.
In re Whirlpool Corp., 722 F.3d at 852-53 (considering commonality, typicality, and adequate
representation together due to their “intertwined nature”).
Moreover, in Money v. Pritzker, the United States District Court for the Northern District
of Illinois recently denied a similar request for class certification involving inmates seeking relief
in response to the COVID-19 pandemic. Money v. Pritzker, 2020 U.S. Dist. LEXIS 63599 (N.D.

Case 2:20-cv-02359-SHL Document 26 Filed 05/26/20 Page 4 of 8 PageID 341
Ill. April 10, 2020). In Money, the Court provided, “The imperative of individualized determinations, recognized by both sides in this case, makes this case inappropriate for class treatment.” Id. *50-51. The Court explained:
Each putative class member comes with a unique situation—different crimes, sentences, outdates, disciplinary histories, age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism, and danger to the community. Id. at *51. While acknowledging that perfect uniformity is not required, the Court reiterated, “But it does require more uniformity that these Plaintiffs would have on the only matter ‘apt to drive the resolution of the litigation’—namely, which class members should actually be given a furlough?” Id. (citing Dukes, 131 S. Ct. at 2541). Similar to the Court in Money, this Court should deny Petitioners’ request for class certification. Here, Petitioners are requesting this Court to certify a class, as well as a subclass, consisting of “[a]ll persons currently or in the future held at the Jail in pretrial custody during the COVID-19 pandemic who are 55 and older, as well as all persons currently or in the future held at the Jail of any age” who suffer from an array of medical conditions. (ECF No. 3, PageID 214). In support of their request, Petitioners have included the following questions: (1) Does COVID-19 present a risk of harm so severe to Class members detained at Shelby County Jail that the only constitutionally permissible way to protect them is to release them? (2) Have Defendants failed to provide Subclass members reasonable modifications to protect against COVID-19 in violation of disability rights laws? (3) Is release of Class and Subclass members from custody in light of the COVID-19 pandemic the only way the Jail can adequately protect vulnerable people from injury or death?” (ECF No. 3, PageID 222). While each of these proposed class members would ultimately seek the similar relief of

Case 2:20-cv-02359-SHL Document 26 Filed 05/26/20 Page 5 of 8 PageID 342
release from incarceration, the dissimilarities of said individuals – loosely defined by Petitioners as “hundreds of people,” some of which are future inmates/detainees – would undoubtedly “impede the generation of common answers” to the questions posed. Said differences would necessarily include, but are not limited to, whether each detainee/inmate can obtain necessary medical treatment within the Jail; whether the detainee/inmate can be safely released, especially considering the specific safety risks that each detainee/inmate would pose to his/her immediate family, prior victims, and the public at large3; whether the detainee/inmate has a safe host site; whether that host site poses less risk of infection than the Jail; and whether the detainee/inmate might potentially put a vulnerable family member and/or the public at large at risk of infection. Each of these issues would mandate an individualized assessment before determining whether the release of each specific detainee/inmate would be practicable, beneficial, and safe.
To that extent, the Tennessee Constitution provides certain basic constitutional rights to the victims of crimes. See Tenn. Const. art. I § 35. The applicable constitutional provision sets out eight specific rights for victims, including the right to “[t]he right to be heard, when relevant, at all critical stages of the criminal justice process as defined by the General Assembly,” “the right to be informed of all proceedings, and of the release, transfer or escape of the accused or convicted person,” and “[t]he right to be present at all proceedings where the defendant has the right to be present.” Id.; see also Tenn. Code Ann. §§ 40-38-101 to 40-38-117; State v. Mutory, 581 S.W.3d 741, 749 (Tenn. 2019). Moreover, Tennessee law provides that Tennessee courts must consider numerous factors in determining whether a pretrial detainee should be released and whether and for what amount bond should be set, including: (1) The defendant’s length of residence in the community; (2) The defendant’s employment status and history, and financial condition; (3) The
3 Both of the named Petitioners are each currently being detained on multiple felony charges. See Respondents’ Response in Opposition to Petitioners-Plaintiffs’ Motion for a Temporary Restraining Order.

Case 2:20-cv-02359-SHL Document 26 Filed 05/26/20 Page 6 of 8 PageID 343
defendant’s family ties and relationships; (4) The defendant’s reputation, character and mental condition; (5) The defendant’s prior criminal record, including prior releases on recognizance or bail; (6) The identity of responsible members of the community who will vouch for defendant's reliability; (7) The nature of the offense and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and (8) Any other factors indicating the defendant’s ties to the community or bearing on the risk of willful failure to appear. Tenn. Code Ann. § 40-11-115(b). Said provisions further highlight the specific and individualized nature of the assessment necessary to determine each detainee/inmate’s eligibility and need for release.
Ultimately, because the lack of commonality and typicality would impede any single remedy in this cause, the resolution of Petitioners’ asserted common questions would not resolve this case. Thus, the request for class certification should be denied.
CONCLUSION Based upon the above and upon the record as a whole, Respondents respectfully request that the Court enter an order denying Petitioners’ Motion for Class Certification.

Case 2:20-cv-02359-SHL Document 26 Filed 05/26/20 Page 7 of 8 PageID 344
Respectfully submitted,
PENTECOST, GLENN & MAULDIN, PLLC
By: s/J. Austin Stokes James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995 – Telephone (731) 668-7163 – Fax jpentecost@pgmfirm.com ntilly@pgmfirm.com astokes@pgmfirm.com
AND
Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100
Attorneys for Respondents-Defendants

Case 2:20-cv-02359-SHL Document 26 Filed 05/26/20 Page 8 of 8 PageID 345

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document was served via ECF filing system, upon the following:

Amreeta Mathai Andrea Woods ACLU 125 Broad Street New York, NY 10004

Jonathan Silberstein-Loeb Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019

Brice Moffatt Timmons Black, Mclaren, Jones, Ryland & Griffee, P.C. 530 Oak Court Drive, Ste. 360 Memphis, TN 38117

on or before the filing date thereof.

DATE: This the 26th day of May, 2020.

By: s/J. Austin Stokes James I. Pentecost Nathan D. Tilly J. Austin Stokes

 
 Case 2:20-cv-02359-SHL Document 35 Filed 05/29/20 Page 1 of 27 PageID 510

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. 20-cv-2359-SHL

PETITIONERS-PLAINTIFFS’ BRIEF IN OPPOSITION TO RESPONDENTSDEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS INTRODUCTION ...............................................................................................................1 STANDARD OF REVIEW.................................................................................................2 ARGUMENT ....................................................................................................................... 2 I. This Court Has Jurisdiction to Hear Plaintiffs’ Claims. ..............................................2
A. Plaintiffs’ Claims Are Properly Brought Under 28 U.S.C. § 2241. ........................2 B. The PLRA Does Not Apply to Plaintiffs’ Claims for Habeas Corpus. ...................5 C. This Court May Entertain Plaintiffs’ Claims for Habeas Corpus............................6 II. To Vindicate Plaintiffs’ Rights This Court Must Intervene. .....................................12 A. Plaintiffs’ Claims Entail Substantive Due Process Violations that Require This Court’s Review. .............................................................................................................12 B. Habeas Relief Can be Granted in a Way that Protects the Public. ........................16 CONCLUSION..................................................................................................................18
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TABLE OF AUTHORITIES

CASES

Page(s)

Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th Cir. 2004) ..............................................................................................................15

Archer v. State, 851 S.W.2d 157 (Tenn. 1993) .......................................................................................8

Atkins v. Michigan, 644 F.2d 543 (6th Cir. 1981) .........................................................................................4

Avendano Hernandez v. Decker, No. 20-cv-1589-JPO, 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020)............................4

Basank v. Decker, No. 20-cv-2518-AT, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020).............................4

Bell v. Wolfish, 441 U.S. 520 (1979).....................................................................................................13

Benson v. State, No. W2018-00967-CCA-R3-HC, 2019 WL 1388195 (Tenn. Crim. App. Mar. 26, 2019) ......................................................................................................8

Blair-Bey v. Quick, 151 F.3d 1036 (D.C. Cir. 1998).....................................................................................6

Burke v. Hall, No. 3:19-cv-1108(AAT), 2020 U.S. Dist. LEXIS 17774 (M.D. Tenn. Feb. 4, 2020) ..................................................................................................................9

Cameron v. Bouchard, 2020 U.S. Dist. LEXIS 89083 (E.D. Mich. May 21, 2020) .................................passim

Cameron v. Bouchard, No. 20-10949, 2020 U.S. App. LEXIS 16741 (6th Cir. May 26, 2020)..............3, 5, 12

Clark v. Lindamood, No. 3:17-cv-0968(AAT), 2018 WL 346230 (M.D. Tenn. Jan. 10, 2018) ..............................................................................................................................8

Coleman v. Newsom, 2020 U.S. Dist. LEXIS 62575 (E.D. Cal. Apr. 4, 2020) ...............................................6

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Coronel v. Decker, No. 20-cv-2472-AJN, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020)...........................4
Delk v. Atkinson, 665 F.2d 90 (6th Cir. 1981) ...........................................................................................4
Edwards v. State, 269 S.W.3d 915 (Tenn. 2008) .......................................................................................7
Farmer v. Brennan, 511 U.S. 825 (1994).......................................................................................................5
Fazzini v. N.E. Ohio Corr. Ctr., 473 F.3d 229 (6th Cir. 2006) .........................................................................................6
Francisco Hernandez v. Wolf, No. 20-cv-617-THJ, 202 U.S. Dist. LEXIS 71421 (C.D. Cal. Apr. 1, 2020) ..............................................................................................................................4
Geeter v. Lesatz, No. 5:17-cv-11510/18-cv-10994(JCO), 2018 WL 2064034 (E.D. Mich. May 3, 2018) .......................................................................................................9
Goar v. Civiletti, 688 F.2d 27 (6th Cir. 1982) ...........................................................................................7
Greenwood v. Batts, No. 2:16-cv-02867, 2018 U.S. Dist. LEXIS 115875 (W.D. Tenn. July 12, 2018) ........................................................................................................................9
Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531 (6th Cir. 2012) .........................................................................................2
Helling v. McKinney, 509 U.S. 25 (1993) .........................................................................14
Hernandez v. Sepanek, No. 12-CV-51-HRW, 2013 WL 556378 (E.D. Ky. Feb. 11, 2013) ............................12
Hogan v. Mills, 168 S.W.3d 753 (Tenn. 2005) .......................................................................................8
Howard v. Grinage, 82 F.3d 1343 (6th Cir. 1996) .......................................................................................13
I.L. through Taylor v. Knox Cty. Bd. of Ed., 257 F. Supp. 3d 946 (E.D. Tenn. 2017).......................................................................16
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J.H. v. Williamson Cty., 951 F.3d 709 (6th Cir. 2020) .......................................................................................13
Johnson v. Luttrell, No. W2006-01409-CCA-R3-HC, 2007 WL 700951 (Tenn. Crim. App. Mar. 6, 2007) .................................................................................................................8
Jovel v. Decker, No. 12-cv-308-GBD, 2020 WL 1467397 (S.D.N.Y. Mar. 26, 2020)............................4
Kingsley v. Hendrickson, 576 U.S. 389 (2015).....................................................................................................14
Lee v. Jabe, 989 F.2d 869 (6th Cir. 1993) .......................................................................................17
Malam v. Adducci, No. 20-10829-JEL, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020) ..................4, 14, 18
Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350 (D. Conn. May 12, 2020) .........................5, 15
McPherson v. Lamont, No. 3:20-cv-534-JBA, 2020 WL 2198279 (D. Conn. May 6, 2020).....................10, 12
Money v. Pritzker, No. 20-cv-2093/20-cv-2094-RMD, 2020 U.S. Dist. LEXIS 63599 (N.D. Ill. Apr. 10, 2020) ................................................................................................9
O’Sullivan v. Boerckel, 526 U.S. 838 (1999).......................................................................................................7
Patton v. Bonner, No. 2:19-cv-02344-TLP, 2020 U.S. Dist. LEXIS 74470 (W.D. Tenn. Apr. 28, 2020)................................................................................................................9
Patton v. Tennessee, No. W2018-01835-CCA-R3-HC, 2019 WL 1111151 (Tenn. Crim. App. Mar. 11, 2019) ..................................................................................................8, 9
Preiser v. Rodriguez, 411 U.S. 475 (1973)...................................................................................................3, 4
Rafael L.O. v. Tsoukaris, No. 20-cv-3481-JMV, 2020 WL 1808843 (D.N.J. Apr. 9, 2020) .................................4
Reaves v. Dep’t of Corr., 404 F. Supp. 3d 520 (D. Mass. 2019)............................................................................6
v

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Refunjol v. Adducci, No. 2:20-cv-2099-SDM, 2020 WL 2487119 (S.D. Ohio May 14, 2020)................4, 14
Rose v. Lundy, 455 U.S. 509 (1982).................................................................................................7, 12
United States v. Salerno, 481 U.S. 739 (1987).....................................................................................................14
Santana v. United States, 98 F.3d 752 (3d Cir. 1996) ............................................................................................6
Savino v. Souza, No. 20-10617-WGY, 2020 WL 1703844 (D. Mass. Apr. 8, 2020).............................18
Scott v. Parker, No. 3:09-0252-TC, 2012 WL 1292432 (M.D. Tenn. Apr. 16, 2012)............................7
Stack v. Boyle, 342 U.S. 1 (1951).........................................................................................................14
Taylor v. State, No. M2003-02954-CCA-R3-HC, 2004 WL 2636716 (Tenn. Crim. App. Nov. 15, 2004) ......................................................................................................8
Thakker v. Doll, No. 20-cv-480-JEJ, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ...............................4
Triplett v. Deputy Warden, 371 N.W.2d 862 (Mich. Ct. App. 1985)........................................................................9
Turner v. Tennessee, 858 F.2d 1201 (6th Cir. 1988) .......................................................................................4
Wershe v. Combs, 763 F.3d 500 (6th Cir. 2014) .........................................................................................3
Wilson v. Williams, No. 20-1469, 2020 U.S. App. LEXIS 14291 (6th Cir. May 4, 2020)........................3, 5
Wilson v. Williams, No. 4:20-cv-00794-JSG, 2020 WL 1940882 (N.D. Ohio, Apr. 22, 2020) ....................................................................................................................3, 5, 19
Winter v. Nat. Res. Def. Council, Inc., 55 U.S. 7 (2008)...........................................................................................................18
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INTRODUCTION COVID-19 is killing people at jails around the country who are at high risk of severe injury and/or death from the disease. The Shelby County Jail is no exception. On May 15, 2020, it was reported that 151 pretrial detainees and 66 staff at the Jail had tested positive for COVID-19, and a member of the Jail staff has died from the disease. But the Sheriff of Shelby County and the Sheriff’s Office, disregarding the established law of this Circuit and the actions of federal judges across the country, argue that this Court is powerless to help. They are wrong. This Court, like others in this Circuit and across the country, should refuse to stand idly by in the face of the grave danger to the vulnerable population at the Jail. Established law in this Circuit and from across the country, including from the U.S. Supreme Court, makes clear that this Court has jurisdiction to grant Mr. Busby, Mr. Edgington, and the classes they seek to represent, the relief they require. Their claims are properly brought under 28 U.S.C. § 2241, which is the only vehicle available for them to pursue the necessary relief of release or transfer from the Shelby County Jail. The Prison Litigation Reform Act (“PLRA”) therefore does not apply. There is no impediment to this Court entertaining Plaintiffs’ claims now regardless of the exaggerated federalism arguments Defendants have conjured in a last ditch attempt to avoid their obligations to the medically vulnerable people in their custody. Defendants cite no authority to the contrary. Conversely, the Sixth Circuit and the Supreme Court of the United States have blessed rulings granting the same relief Messrs. Busby and Edgington seek. Further, and in answer to the Court’s questions during oral argument, the vindication of Plaintiffs’ substantive due process and federal rights require this Court’s review.
1

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For these reasons, and for the reasons provided below, the Court should deny Defendants’ Motion to Dismiss.
STANDARD OF REVIEW In ruling on a motion to dismiss, a court “construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir. 2012) (citation omitted). A motion to dismiss must be denied if plaintiffs allege “facts that ‘state a claim to relief that is plausible on its face’ and that, if accepted as true, are sufficient to ‘raise a right to relief above the speculative level.’” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)).
ARGUMENT I. This Court Has Jurisdiction to Hear Plaintiffs’ Claims.
A. Plaintiffs’ Claims Are Properly Brought Under 28 U.S.C. § 2241. The core of Mr. Busby and Mr. Edgington’s claims is that they cannot be safely
held at the Jail because social distancing is impossible due to the congregate nature of the facility; therefore, their “release is the only reasonable response.”1 TRO Br. at 15. This is not a conditions-of-confinement case because there are no conditions of confinement in which Plaintiffs can be sufficiently safe. Instead, Plaintiffs’ challenge goes to the validity of the fact their confinement. When “a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is
1 The term “release” refers to the discharge of detained individuals from the physical confines of the Shelby County Jail, not necessarily release from all forms of custody. Release options may include, but are not limited to: supervised release (including through the use of GPS or other forms of location monitoring), halfway house residential placement, transfer to a hospital or other facility, or diversion to alternative community and treatment programs. See TRO Br. at 11 n.1. 2

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entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Wershe v. Combs, 763 F.3d 500, 504 (6th Cir. 2014) (same). As the Sixth Circuit has now held on two separate occasions, “[w]here a petitioner claims no set of conditions would be constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement.” Wilson v. Williams, No. 20-1469, 2020 U.S. App. LEXIS 14291, at *4 (6th Cir. May 4, 2020); Cameron v. Bouchard, No. 20-10949, 2020 U.S. App. LEXIS 16741, at *4 (6th Cir. May 26, 2020) (citing Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011)).
Because Mr. Busby and Mr. Edgington challenge the validity of the fact of their confinement, not the conditions of their confinement, § 2241 is the proper vehicle for their claim. In Cameron, the district court concluded “that § 2241 is the proper vehicle for Plaintiffs to challenge the continued confinement of medically-vulnerable Jail inmates during the COVID-19 pandemic.” Cameron v. Bouchard, 2020 U.S. Dist. LEXIS 89083, at *34 (E.D. Mich. May 21, 2020). Likewise, in Wilson the district court found that, because “the only true effective remedy to stop the spread [of COVID-19] is to separate individuals—a measure that in our nation’s densely populated prisons is typically impossible . . . such actions ultimately seek to challenge the fact or duration of confinement.” Wilson v. Williams, No. 4:20-cv-00794-JSG, 2020 WL 1940882, at *5 (N.D. Ohio, Apr. 22, 2020). And, the “sole federal remedy” for a challenge to “to the very
3

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fact” of confinement is “a writ of habeas corpus.” Preiser, 411 U.S. at 500. Federal courts
around the country have granted habeas relief on the same basis.2
The Sixth Circuits’ holdings in Wilson and Cameron establish beyond cavil that
habeas relief is available to pretrial detainees in precisely these circumstances and renders
nonsensical Defendants’ unsupported and erroneous contention that the Circuit has
“approved consideration of a pretrial § 2241 petition only in three exceptional
circumstances.” MTD Br. at 8–9 (citing Atkins v. Michigan, 644 F.2d 543, 546–47 (6th
Cir. 1981); Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir. 1981), and Turner v. Tennessee, 858
F.2d 1201, 1204 (6th Cir. 1988)).3 In fact, § 2241 extends to any “individual in custody in
violation of the Constitution or laws or treaties of the United States.” 18 U.S.C. § 2241.
Because Mr. Busby and Mr. Edgington challenge the fact of their confinement,
Defendants’ citations to cases regarding the applicability of § 2241 to conditions-of-
confinement claims are irrelevant. See MTD Br. at 9.4 Mr. Busby and Mr. Edgington, and
2 See, e.g. Malam v. Adducci, No. 20-10829-JEL, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020); Refunjol v. Adducci, No. 2:20-cv-2099-SDM, 2020 WL 2487119, at *17 (S.D. Ohio May 14, 2020); Rafael L.O. v. Tsoukaris, No. 20-cv-3481-JMV, 2020 WL 1808843 (D.N.J. Apr. 9, 2020); Francisco Hernandez v. Wolf, No. 20-cv-617-THJ, 202 U.S. Dist. LEXIS 71421 (C.D. Cal. Apr. 1, 2020); Thakker v. Doll, No. 20-cv-480-JEJ, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020); Avendano Hernandez v. Decker, No. 20cv-1589-JPO, 2020 WL 1547459 (S.D.N.Y. Mar. 31, 2020); Coronel v. Decker, No. 20-cv-2472-AJN, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, No. 20-cv-2518-AT, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Jovel v. Decker, No. 12-cv-308-GBD, 2020 WL 1467397 (S.D.N.Y. Mar. 26, 2020).
3 These cases in fact explain that habeas relief is generally applicable to any person held in custody. Atkins, 644 F.2d 546, n.1 (finding “[p]retrial petitions . . . are properly brought under s. 2241, which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him.”); Delk, 665 F.2d at 93 (holding a person “who has been released on bail while awaiting trial is in ‘custody’ for the purposes of s. 2241”); Turner, 858 F.2d at 1204 (same).
4 Defendants’ argument that “a writ of habeas corpus is not the proper vehicle to bring a deliberate indifference claim,” MTD Br. at 10, misunderstands that “deliberate
4

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other people at high risk of severe infection and/or death from COVID-19 cannot be safely
housed at the Jail under any circumstances. As Plaintiffs’ medical experts have concluded,
there is no acceptable alternative but release. See Goldenson Decl. ¶ 39; Fefferman Decl. ¶ 8; Griffin Decl. ¶ 13.5 Because there is no acceptable alternative but release, Plaintiffs
challenge the validity of the fact of their confinement and their claims are properly brought
under § 2241.
B. The PLRA Does Not Apply to Plaintiffs’ Claims for Habeas Corpus. The PLRA does not apply to habeas claims. Defendants’ contention that Plaintiffs
are subject to 18 U.S.C. § 3626 is wrong. Mr. Busby and Mr. Edgington’s proper
invocation of § 2241 “forecloses any argument that the PLRA applies given its express
exclusion of ‘habeas corpus proceedings challenging the fact or duration of confinement
in prison’ from its ambit.’” Wilson, 2020 U.S. App. LEXIS 14291, at *4 (quoting 18 U.S.C.
§ 3626(g)(2)); Cameron, 2020 U.S. App. LEXIS 16741, at *4 (same); see also Martinez-
Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350, at *16 (D. Conn. May 12, 2020)
(finding that the PLRA is inapplicable “unless the proceeding is a ‘civil action with respect
to prison conditions,’” which “does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.”) (emphasis original).6
indifference” is a legal standard. See Farmer v. Brennan, 511 U.S. 825, 828 (1994) (“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment”); see also Wilson, 2020 WL 1940882, at *8 (finding respondents “deliberately indifferent” because they “altogether failed to separate [their] inmates at least six feet apart”); Cameron, 2020 U.S. Dist. LEXIS 89083, at *66 (finding failure to release petitioners promptly is deliberate indifference). 5 “Goldenson Decl.” refers to the Declaration of Dr. Joe Goldenson dated May 20, 2020, “Fefferman Decl.” to the Declaration of Dr. Nina H. Fefferman dated May 19, 2020, and “Griffin Decl.” to the Declaration of Dr. Marie Griffin dated May 20, 2020. 6 Even if this was an action brought under 42 U.S.C. § 1983, Defendants’ analysis is wrong. That is because 18 U.S.C. § 3626 does not apply “to an order to transfer detainees out of a prison to correct the violation of a constitutional right where
5

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The three out-of-Circuit cases on which Defendants rely do not affect the conclusion that the PLRA is inapplicable here.7 They certainly do not suggest, as
Defendants imply, that § 3626 applies to habeas claims brought under § 2241. See MTD
Br. at 12. Defendants’ error is clear from the language of the PLRA. To interpret § 3626
improperly to encompass habeas claims “would mean that a court could never order an
inmate released unless a three-judge panel found by clear and convincing evidence that
overcrowding was the cause of the violation. In other words, if any other reason caused
the violation of an inmate’s constitutional rights, judges could not provide relief by
releasing the inmate.” Cameron, 2020 U.S. Dist LEXIS 89083, at *72–73. That is not
what Congress intended. See id.
C. This Court May Entertain Plaintiffs’ Claims for Habeas Corpus. The Court may entertain Plaintiffs’ claims for habeas corpus because there is no
available and adequate state corrective process to protect Plaintiffs’ rights. See Fazzini v.
N.E. Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2006) (finding failure to exhaust
“available state” remedies “may be excused where pursuing such remedies would be futile
overcrowding is not the primary cause of the violation.” Cameron, 2020 U.S. LEXIS 89083, at *73; see also Reaves v. Dep’t of Corr., 404 F. Supp. 3d 520, 522–24 (D. Mass. 2019). The PLRA also does not work to bar home confinement, which is not “release” but a form of pre-release custody. See 18 U.S.C. § 3624(g)(2)(A). 7 Santana, on which Defendants rely, supports Plaintiffs’ position. The Third Circuit held that the PLRA “explicitly excludes habeas corpus proceedings from its scope” and limits remedies in “conditions cases.” Santana v. United States, 98 F.3d 752, 754–55 (3d Cir. 1996). In Blair-Bey, the D.C. Circuit held that the “PLRA’s legislative history makes clear that Congress’s principal intent was to reduce frivolous litigation by prisoners challenging conditions of their confinement. . . . Nowhere in the PLRA’s legislative history is there any reference to cases challenging the fact or duration of confinement.” Blair-Bey v. Quick, 151 F.3d 1036, 1040 (D.C. Cir. 1998). Coleman was not a habeas case at all. It concerned a motion seeking modification of population reduction orders entered by three-judge district courts over a decade ago. Coleman v. Newsom, 2020 U.S. Dist. LEXIS 62575, at *6–11 (E.D. Cal. Apr. 4, 2020).
6

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or unable to afford the petitioner the relief he seeks”); Goar v. Civiletti, 688 F.2d 27, 28– 29 (6th Cir. 1982) (holding exhaustion is unnecessary if the remedy is “inadequate or cannot provide the relief requested”); O’Sullivan v. Boerckel, 526 U.S. 838, 847–48 (1999) (holding exhaustion is not required when a remedy in state court is “unavailable”). “Exhaustion is based on the assumption that the state remedies available to a prisoner are adequate and effective to vindicate federal constitutional rights. When state remedies become ineffective or inadequate, the rationale behind exhaustion is undercut.” Scott v. Parker, No. 3:09-0252-TC, 2012 WL 1292432, at *1 (M.D. Tenn. Apr. 16, 2012). Even if Tennessee state remedies were available and adequate, the exhaustion requirement should be waived in light of the unique threat posed by COVID-19. See Rose v. Lundy, 455 U.S. 509, 515–16 (1982) (holding the exhaustion requirement may be waived “where exceptional circumstances of peculiar urgency are shown to exist”).
First, whereas the federal habeas statutes permit this Court to review whether Plaintiffs are “in custody in violation of the Constitution,” 28 U.S.C. §§ 2241, Tennessee law precludes pretrial detainees from pursuing habeas claims and therefore accords Plaintiffs no such relief. “[H]abeas corpus under Tennessee law has always been, and remains a very narrow procedure.” Edwards v. State, 269 S.W.3d 915, 919 (Tenn. 2008) (quoting Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993)). Under Tennessee law, habeas corpus relief is only available in two circumstances: where “it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered that a convicting court was without jurisdiction, or that a defendant’s sentence of imprisonment or other restraint has expired.” Archer, 851 S.W.2d at 164; see also Clark v. Lindamood, No. 3:17-cv-0968(AAT), 2018 WL 346230, at *3 (M.D. Tenn. Jan. 10, 2018).
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Thus, in Tennessee a pretrial detainee’s habeas petition is dismissed as “premature”
because there is no conviction or sentence to challenge. See Benson v. State, No. W2018-
00967-CCA-R3-HC, 2019 WL 1388195, at *2 (Tenn. Crim. App. Mar. 26, 2019); see also
Patton v. Tennessee, No. W2018-01835-CCA-R3-HC, 2019 WL 1111151 (Tenn. Crim.
App. Mar. 11, 2019) (affirming decision of habeas court in summarily dismissing pretrial
petition); Johnson v. Luttrell, No. W2006-01409-CCA-R3-HC, 2007 WL 700951, at *1
(Tenn. Crim. App. Mar. 6, 2007) (same); Taylor v. State, No. M2003-02954-CCA-R3-HC,
2004 WL 2636716, at *2 (Tenn. Crim. App. Nov. 15, 2004) (finding that a petitioner
cannot attack the validity of a sentence with a habeas petition if they have not begun serving
that sentence). Indeed, pretrial detainees would not even have the opportunity to be heard
in state court because the “court may dismiss a habeas corpus petition without a hearing if
the petition fails to establish that the challenged judgment is void.” Hogan v. Mills, 168
S.W.3d 753, 755 (Tenn. 2005) (citing Tenn. Code Ann. § 29–21–109). Plaintiffs here are
consequently in the same constrained position as the plaintiffs in Cameron, who also lacked
state habeas remedies, and not in the position of the plaintiffs in Money, who had recourse to state based habeas remedies.8 Defendants cite no authority to the contrary.9
8 In Cameron, plaintiffs could only bring state habeas claims to challenge “radical defects rendering a judgment or proceeding absolutely void.” Triplett v. Deputy Warden, 371 N.W.2d 862, 780 (Mich. Ct. App. 1985); see also Geeter v. Lesatz, No. 5:17-cv-11510/18-cv-10994(JCO), 2018 WL 2064034, at *4 n.4 (E.D. Mich. May 3, 2018) (same). In Money v. Pritzker, No. 20-cv-2093/20-cv-2094-RMD, 2020 U.S. Dist. LEXIS 63599 (N.D. Ill. Apr. 10, 2020), on which Defendants rely (see MTD Br. at 5–6), the Illinois-based petitioners had an available state habeas remedy to pursue. See 735 Ill. Comp. Stat. Ann. 5/10-124 (providing for habeas relief if, “though the original imprisonment was lawful, nevertheless, by some act, omission or event which has subsequently taken place, the party has become entitled to be discharged”).
9 The non-Tennessee case law on which Defendants rely is irrelevant and the three Tennessee cases they cite are inapposite. Patton v. Bonner, No. 2:19-cv-02344-TLP, 2020 U.S. Dist. LEXIS 74470 (W.D. Tenn. Apr. 28, 2020), involved a pending state
8

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Second, because Defendants effectively concede that there is no state habeas
remedy available to Plaintiffs, Defendants hazard that Plaintiffs could move the state trial
court to alter their bond or other conditions of their release, see MTD Br. at 6, but such
mechanisms are wholly ineffective and inadequate to protect the constitutional and statutory rights at risk in this case.10 Tennessee’s procedures for setting bail and modifying
conditions of release are inadequate and ineffective because they do not consider the
validity of the fact of Plaintiffs’ continued confinement in light of their high risk of severe
infection and/or death from COVID-19. See Tenn. Code Ann. §§ 40-11-115, -118. The
procedures for setting bail and modifying conditions of release do not consider whether the
fact of Plaintiffs’ continued confinement amounts to unconstitutional punishment; they do
not consider whether their continued confinement constitutes an unacceptable risk to
Plaintiffs’ health and safety; and, they do not consider whether Plaintiffs’ continued
confinement constitutes impermissible disability discrimination. Indeed, the procedures
for setting bail and modifying conditions of release do not require any review of whether Plaintiffs are “in custody in violation of the Constitution,” as 28 U.S.C. §§ 2241 requires.11
criminal prosecution and turned on Younger abstention. Id. at *4. The state trial court confirmed that habeas relief in Tennessee is limited to two narrow grounds. See Patton, 2019 WL 1111151, at *1. Neither Burke v. Hall, No. 3:19-cv-1108(AAT), 2020 U.S. Dist. LEXIS 17774 (M.D. Tenn. Feb. 4, 2020), nor Greenwood v. Batts, No. 2:16-cv02867, 2018 U.S. Dist. LEXIS 115875 (W.D. Tenn. July 12, 2018) concern pre-trial detainees; they are about habeas petitions filed by federal inmates after sentencing. 10 Plaintiffs’ proposed relief contemplates weighing the violation to their constitutional and federal rights against any established risk of flight or danger to others. That is one approach to vindicating their rights, but consideration of their risk of flight or danger to others it is not an avenue to address the constitutional and disability claims raised in their Petition. 11 Further, the size of the proposed class numbers in the hundreds, and Defendants have not even suggested that Tennessee’s trial courts would be prepared to hear and adjudicate hundreds of individual bail reduction motions taking into account class members’ medical vulnerabilities in the urgent manner necessary under the
9

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The Tennessee Supreme Court’s Orders of March 13, March 25, and April 24 do not change this analysis, nor does the 30th Judicial District’s response to the Supreme Court’s March 25 Order, as neither modify the procedures for setting bail or modifying conditions of release to incorporate the necessary constitutional and federal law analysis required to address the violation to Plaintiffs’ rights. See Exs. A, B, C, and D.12 The Orders of March 13 and March 25 merely state that bond-related matters can continue to be heard. See Exs. A and B at 1 (stating that exceptions to the “suspension of in-person court proceedings include . . . bond-related matters”). The March 25 Order directed “each judicial district” to “develop a written plan to affirmatively address issues regarding the incarceration of nonviolent offenders in furtherance of efforts to reduce the jail population, including but not limited to bond reductions or eliminations, deferred sentences, and suspended sentences. . . . by . . . March 30, 2020,” but provided no further guidance on what that was to contain, what action was required to address the issues, or what legal principles that were to inform the efforts to reduce the jail population. Id.
That the Tennessee Supreme Court’s Orders wrought no meaningful change in the manner in which judges set bail and modify conditions of release is apparent from Judge John W. Campbell’s cursory letter of March 27, 2020 in response to the Supreme Court’s March 25 Order.13 That letter makes clear that there is no available and adequate state
circumstances. See McPherson v. Lamont, No. 3:20-cv-534 (JBA), 2020 WL 2198279, at *7 (D. Conn. May 6, 2020) (noting that state courts would be unlikely to respond to the volume of emergency petitions required for class members to exhaust state law claims for relief and waiving § 2241 exhaustion requirement). 12 “Ex. __” refers to the exhibits to the Declaration of Jonathan Silberstein-Loeb dated May 29, 2020. 13 The 30th Judicial District has not published a plan or any additional materials to the Tennessee State Courts website. See https://www.tncourts.gov/Coronavirus.
10

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corrective process in the 30th Judicial District to protect Plaintiffs’ substantive constitutional habeas rights. See Ex. D. Indeed, the letter does not set forth any steps that the judiciary is taking to address the constitutional and federal violations of which Plaintiffs complain. Rather, it merely outlines steps taken by the District Attorney to “prevent jail overcrowding during the current health crisis.” Ex. D. Overcrowding is not the issue here. The issue is that Plaintiffs, and other people housed at the Jail who are at high risk of severe infection and/or death from COVID-19, cannot be safe in a congregate facility, particularly because they cannot practice social distancing.14
Third, the exhaustion requirement should be waived in light of the unique threat posed by COVID-19. Even if the Court somehow finds that Plaintiffs could have attempted the futile act of exhausting state-level remedies, Defendants are wrong to contend that this requires dismissal of Plaintiffs’ federal habeas claim. The requirement “was judicially created, it is not a statutory requirement and, therefore, not jurisdictional.” Hernandez v. Sepanek, No. 12-CV-51-HRW, 2013 WL 556378, at *3 (E.D. Ky. Feb. 11, 2013). Rather, a court should waive the exhaustion requirement “where exceptional circumstances of peculiar urgency are shown to exist.” Rose, 455 U.S. 515–16.
The COVID-19 pandemic is the “quintessential example of when unusual and exceptional circumstances exist” and in which “peculiar urgency” is required. Cameron, 2020 U.S. Dist. LEXIS 89083, at *36-37; see also Cameron, 2020 U.S. App. LEXIS 16741,
14 In Cameron, the court explicitly noted that Michigan had, by executive order, granted judicial officers the authority to suspend or reduce jail sentences in light of the pandemic, and that the governor had issued an executive order requesting that jails and prisons consider actions to lower detainee populations. See Cameron, 2020 U.S. Dist. LEXIS 89083, at *36. Nonetheless, the court held that relief obtained via these processes were “not part of the ‘standard review process,’” and therefore did not need to be exhausted. Id. at *36-37 11

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at *4 (finding a plaintiff need not exhaust state-court remedies in “unusual circumstances”). Yet, Defendants insist that, “[t]o fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state’s highest court.” MTD Br. at 4. That is not what the law demands, and it would be futile to require it here. As the District of Connecticut recently concluded, “§ 2241’s exhaustion requirement should be waived in light of the extraordinary circumstances presented by the COVID-19 pandemic.” McPherson, 2020 WL 2198279, at *7.
Further delay in providing relief could mean the difference between life and death for Mr. Busby and Mr. Edgington and for the members of the Class and Subclass. The outbreak of COVID-19 at the Jail, the death of a staff member at the Jail, and the threat that this poses to the well-being of the Shelby County community generally, as documented in the declarations of Plaintiffs’ medical experts, establish beyond dispute that the threat of substantial harm is imminent. See, e.g. Goldenson Decl. ¶ 28 (“medically vulnerable persons at Shelby County Jail are at grave risk of death or serious illness”); Fefferman Decl. ¶ 11 (“Cases of infection occurring within a jail cause additional cases of infection, hospitalization and deaths in the wider community.”). Pretrial detention must not be permitted to become a death sentence. II. To Vindicate Plaintiffs’ Rights This Court Must Intervene.
A. Plaintiffs’ Claims Entail Substantive Due Process Violations that Require This Court’s Review. Plaintiffs’ continued detention, and that of the members of the Class and Subclass,
violates their rights under the Fourteenth Amendment, and their rights under the ADA and the Rehabilitation Act, because there is no safe alternative to their confinement short of release. Because the constitutional violation arises from Plaintiffs’ confinement, and not
12

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from the procedure that led to their confinement, the Court’s analysis should focus on the violation to Plaintiffs’ substantive due process and federal rights. See Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996) (distinguishing procedural due process as the right “to be heard in a meaningful manner,” whereas substantive due process relates to preventing “governmental power from being ‘used for purposes of oppression’” (citations omitted)).
To conduct this analysis, the Court should first address the merits of Plaintiffs’ constitutional and federal law claims. Plaintiffs bring two distinct substantive due process Fourteenth Amendment claims, either of which may form the basis for the relief they seek. Under the first claim, the Court must look at whether, because Plaintiffs and members of the Class and Subclass are exclusively pretrial detainees, and because they are at high risk of severe infection and/or death from COVID-19, their continued detention is not reasonably related to a legitimate, non-punitive government purpose or excessive in relation to that purpose. See Bell v. Wolfish, 441 U.S. 520, 561 (1979); J.H. v. Williamson Cty., 951 F.3d 709, 717 (6th Cir. 2020) (applying Bell test to pretrial detainee’s claim).15 And, because Plaintiffs are pretrial detainees, they need not show Defendants subjectively perceived facts from which to infer a substantial risk to Plaintiffs. See Kingsley v. Hendrickson, 576 U.S. 389, 392 (2015). Rather, it is enough that Plaintiffs are “exposed to a substantial risk of serious harm.” Cameron, 2020 U.S. Dist. LEXIS 89083, at *53 (quoting Amick v. Ohio Dep’t of Rehab. & Corr., 521 F. App’x 354, 361 (6th Cir. 2013)).
Plaintiffs’ second substantive due process claim is the Fourteenth Amendment equivalent of the Eight Amendment’s prohibition against detention conditions that amount
15 The only two legitimate interests are preventing flight or danger to the community. See Stack v. Boyle, 342 U.S. 1, 8 (1951); United States v. Salerno, 481 U.S. 739, 744–45 (1987). 13

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an unacceptable risk to health and safety. See Helling v. McKinney, 509 U.S. 25, 35 (1993) Under that claim, Plaintiffs are exposed to a substantial risk of serious harm because of the congregate nature of the Jail, which houses inmates who share sinks, toilets, and showers, as well as eating, sleeping, and living spaces, all of which makes it an ideal environment for the spread of COVID-19. See id. at *54. The structure of the facility heightens the risk of transmission. “This, along with the fact that there is an active outbreak of COVID-19 at the Jail and the fact that COVID-19 is a highly infectious virus that poses a significant risk of severe illness and death, particularly for the medically vulnerable, renders the objective component easily satisfied.” Id. (citing Wilson, 2020 WL 1940882, at *8); see also Prieto Refunjol v. Adducci, No. 2:20-CV-2099-SDM, 2020 WL 2487119, at *26 (S.D. Ohio May 14, 2020) (finding that “where there is a highly infectious disease circulating throughout the jail, the community, the nation, and the world, these poor-quality conditions serve no legitimate purpose and have the effect of punishing the detainees, because it affords the detainees’ little ability to protect their own health.”); Malam, 2020 WL 1672662, at *12 (explaining that since “petitioner faces significant risk of death due to COVID-19,” “her continued confinement . . . is both unrelated and contrary to the government purpose of carrying out her removal proceedings.”).
If, however, under the second due process claim, the Court determines that Plaintiffs, notwithstanding that they are pretrial detainees, must also show that Defendants are subjectively indifferent to Plaintiffs’ safety, that requirement is still easily satisfied. There is no denying that Defendants subjectively perceived facts from which to infer substantial risk to Plaintiffs and there is no denying that Defendants drew that inference. Defendants concede as much and in any event the risk is obvious. Defendants
14

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have disregarded this risk to Plaintiffs safety, and that of the members of the Class and Subclass, because, knowing of this substantial risk, Defendants have failed to provide an alternative to their continued confinement. For Plaintiffs and other detainees who are at high risk of severe infection and/or death from COVID-19, release is the only reasonable response.
The constitutional violation arises out of the fact of Plaintiffs’ confinement, not the procedure that led to their confinement. As the Cameron court said: “Considering the weight of the public health evidence demonstrating the medically-vulnerable population’s unique, specific, and life-threatening susceptibility to COVID-19—paired with the communal nature of jail facilities,” “release” is the only “reasonable response.” Cameron, 2020 U.S. Dist. LEXIS 89083, at *63; see also Martinez-Brooks, 2020 WL 2405350, at *23. Plaintiffs do not dispute that the Sheriff must be permitted to exercise discretion in choosing among equally effective measures to protect inmates from serious risks, but choosing inevitably inadequate measures to the exclusion of a plainly superior one constitutes deliberate indifference. See Martinez-Brooks, 2020 WL 2405350, at *23. In light of Defendants’ awareness of the deathly risk that COVID-19 poses to the medicallyvulnerable population, Defendants’ failure to make prompter, broader, and more meaningful use of their authority to release medically vulnerable detainees, although it is the only solution capable of adequately protecting them, constitutes deliberate indifference. Cameron, 2020 U.S. Dist. LEXIS 89083, at *66.
Separately, and independent of the analysis of Defendants’ constitutional violations, the Court may grant injunctive relief to the Subclass based on Defendant’s discrimination against disabled detainees. Defendants argue that Plaintiffs “must show
15

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prison officials took the challenged actions because of the inmate’s alleged disability”; that is, “because of their disabilities.” TRO Opp’n Br. at 14. But “there is nothing to indicate that a plaintiff must ever prove intentional discrimination—or deliberate indifference— under Title II and § 504.” I.L. through Taylor v. Knox Cty. Bd. of Ed., 257 F. Supp. 3d 946, 969 (E.D. Tenn. 2017). Defendants effectively concede that they are treating people with disabilities as they treat everyone else. Failure to provide reasonable accommodations to ensure equal access to people with disabilities is discrimination. Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th Cir. 2004).
Mr. Busby and the members of the Subclass are individuals protected by the ADA and the Rehabilitation Act. The ADA and the Rehabilitation Act impose affirmative obligations to make benefits, services, and programs available to people with disabilities, including by making accommodations to ensure that these programs are equally available to disabled people. The Subclass members are all at high risk of severe injury and/or death from COVID-19 by virtue of their disabilities. Absent reasonable “accommodation”— namely, the identification and release of all individuals who are at high risk of severe infection and/or death from COVID-19—they are and will continue to be denied equal access to the benefit of the Jail’s programs and services, including adjudication of their cases, safe preparation for these cases, and adequate medical and mental health care while in Jail. Because Defendants have failed to provide these reasonable accommodations, Plaintiffs are likely to succeed on their ADA and Rehabilitation Act claims.
B. Habeas Relief Can be Granted in a Way that Protects the Public. Given the severe and unavoidable risks to Mr. Busby and Mr. Edgington, the Court
can and should act quickly to implement a system for ordering their release and/or “enlargement” of custody and that of the members of the Class and Subclass.
16

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“Enlargement,” a term used only in the context of habeas, is not release. The person remains in custody even as the place of custody is changed and thereby “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is a provisional remedy that modifies custody by expanding the site in which it takes place. Federal judges have authority to release detainees in this manner while their habeas petitions are pending. See Lee v. Jabe, 989 F.2d 869, 871 (6th Cir. 1993) (citing Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990)); see also Cameron, 2020 U.S. Dist. LEXIS 89083, at *34.
In deciding whether to grant this emergency relief, the Court is directed to follow the well-known balancing test that governs preliminary relief, which includes weighing “the public interest.” Winter v. Nat. Res. Def. Council, Inc., 55 U.S. 7, 20 (2008); Malam v. Adducci, No. 20-10829-JEL, 2020 WL 1672662, at *6-7 (E.D. Mich Apr. 5, 2020). Thus, this Court can weigh the public interest when granting temporary release to Plaintiffs and members of the Class and Subclass. Once the Court finds that Plaintiffs are likely to succeed on the merits of their constitutional and statutory claims, then it may turn to balancing those violations against the public interest. For Plaintiffs, and for members of the Class and Subclass, that balancing exercise should lead to the conclusion that they should be released because of the risks to their health from remaining incarcerated and the risks to the public posed by the Jail becoming a source of source of transmission and a drain on public health resources, but if the Court concludes, notwithstanding these risks, that the risk to the public safety from granting temporary release to certain individuals outweighs the other factors, the Court could deny them emergency relief.
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Several such systems already exist. For example, a federal court in the District of Massachusetts has released, and continues to release, numerous immigration detainees on non-monetary bond conditions while their class habeas petition is pending. See Savino v. Souza, No. 20-10617-WGY, 2020 WL 1703844, at *8–9 (D. Mass. Apr. 8, 2020). In Wilson, the court ordered respondents to “identify, within one (1) day all members of the [medically-vulnerable] subclass” and to “evaluate each subclass member’s eligibility for transfer out of Elkton [prison] through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two (2) weeks.” Wilson, 2020 WL 1940882, at *10. The court also instructed that, in undertaking this evaluation, “Respondents will prioritize the review by the medical threat level.” Id. In Cameron, the court began to implement such a procedure by requiring the Oakland County Jail to provide the court and plaintiffs’ counsel with a list of medically vulnerable individuals, including inmate identification numbers, ages, any health vulnerabilities, as well as records detailing the instant charges or convictions and any criminal history of the individual. Cameron, 2020 U.S. Dist. LEXIS 89083, at *85. As the Cameron court explained, “the purpose of this order is to enable the Court to implement a system for considering the release on bond or other alternatives to detention in the Jail for each subclass member.” Id. This Court should impose a similar procedure here, and Plaintiffs have set forth such a procedure in their proposed order granting their Motion for a Temporary Restraining Order.
CONCLUSION For the foregoing reasons the Court should deny Defendants’ Motion to Dismiss and grant Plaintiffs’ Motion for a Temporary Restraining Order.
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Dated: May 29, 2020
Respectfully submitted, /s/ Brice M. Timmons
Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Andrea Woods Amreeta S. Mathai American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org
Zoe Brennan-Krohn* American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris* American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

19

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Jonathan M. Silberstein-Loeb David Kimball-Stanley* Adrienne Lee* Avery Medjuck* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com jsilberstein-loeb@paulweiss.com dkimball-stanley@paulweiss.com alee@paulweiss.com amedjuck@paulweiss.com Attorneys for Plaintiffs * Application for admission pro hac vice forthcoming
20

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CERTIFICATE OF SERVICE I, Brice M. Timmons, certify that on May 29, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the ECF system. Notice of this filing will be sent by e-mail to all parties of record by operation of the Court’s electronic filing system.
Respectfully submitted,
/s/ Brice M. Timmons

Case 2:20-cv-02359-SHL Document 35-1 Filed 05/29/20 Page 1 of 2 PageID 537

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby and Michael Edgington, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. 20-cv-2359-SHL

DECLARATION OF JONATHAN M. SILBERSTEIN-LOEB IN SUPPORT OF PETITIONERS-PLAINTIFFS’ BRIEF IN OPPOSITION TO RESPONDENTS-
DEFENDANTS’ MOTION TO DISMISS

I, Jonathan M. Silberstein-Loeb, certify under penalty of perjury that the following statement is true and correct pursuant to 28 U.S.C. §1746.
1. My name is Jonathan M. Silberstein-Loeb. I am over the age of 18 and I am competent to make this declaration.
2. I am an associate at the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, and I am one of the counsel of record for Petitioners-Plaintiffs (“Plaintiffs”).
3. I respectfully submit this Declaration in support of Plaintiffs’ Brief in Opposition to Respondents-Defendants’ Motion to Dismiss. The purpose of this Declaration is to identify certain documents relevant to Plaintiffs’ Brief.

1

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a. Attached as Exhibit A is a true and correct copy of the Supreme Court of Tennessee’s March 13, 2020 Order Suspending In-Person Court Proceedings, In re: COVID-19 Pandemic, No. ADM2020-00428.
b. Attached as Exhibit B is a true and correct copy of the Supreme Court of Tennessee’s March 25, 2020 Order Continuing Suspension of In-Person Court Proceedings and Extension of Deadlines, In re: COVID-19 Pandemic, No. ADM2020-00428.
c. Attached as Exhibit C is a true and correct copy of the Supreme Court of Tennessee’s April 24, 2020 Order Modifying Suspension of In-Person Court Proceedings and Further Extension of Deadlines, In re: COVID-19 Pandemic, No. ADM2020-00428.
d. Attached as Exhibit D is a true and correct copy of a letter, dated March 27, 2020, from Administrative Judge John W. Campbell of the 30th Judicial District to the Supreme Court of Tennessee.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and belief.
Executed on this 29th day of May, 2020, in New York, New York.
/s/ Jonathan M. Silberstein-Loeb Jonathan M. Silberstein-Loeb PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 jsilberstein-loeb@paulweiss.com
2

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EXHIBIT A

Case 2:20-cv-02359-SHL Document 35-2 Filed 05/29/20 Page 2 of 4 PageID 540

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
IN RE: COVID-19 PANDEMIC ______________________
No. ADM2020-00428 ______________________

03/13/2020

ORDER SUSPENDING IN-PERSON COURT PROCEEDINGS
In response to the COVID-19 pandemic, the Chief Justice of the Tennessee Supreme Court hereby declares a state of emergency for the Judicial Branch of Tennessee government and activates the following Continuity of Operations Plan for the courts of Tennessee. See Tenn. Const. Art. VI, § 1; Tenn. Code Ann. §§ 16-3-501 to 16-3-504 (2009); Moore-Pennoyer v. State, 515 S.W.3d 271, 276-77 (Tenn. 2017); Tenn. Sup. Ct. R. 49. First and foremost, the local and state courts of the State of Tennessee are open and will remain open under all circumstances, subject to the provisions of this order.
Under the constitutional, statutory, and inherent authority of the Tennessee Supreme Court, we adopt the following provisions. All in-person proceedings in all state and local courts in Tennessee, including but not limited to municipal, juvenile, general sessions, trial, and appellate courts, are suspended from the close of business on Friday, March 13, 2020 through Tuesday, March 31, 2020, subject to the exceptions below.
Exceptions to this suspension of in-person court proceedings include, but are not limited to:
! Proceedings necessary to protect constitutional rights of criminal defendants, including bond-related matters and plea agreements for incarcerated individuals
! Civil and criminal jury trials that are in progress as of March 13, 2020 ! Proceedings related to relief from abuse, including but not limited to orders of
protection ! Proceedings related to emergency child custody orders ! Department of Children’s Services emergency matters related to child protection ! Proceedings related to petitions for temporary injunctive relief ! Proceedings related to emergency mental health orders ! Proceedings related to emergency protection of elderly or vulnerable persons ! Proceedings directly related to the COVID-19 public health emergency ! Other exceptions as approved by the Chief Justice

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The presiding judge or the designee of the presiding judge of each judicial district is authorized to determine the manner in which in-person court proceedings for the exceptions listed above are to be conducted. Other exceptions to the suspension of in-person court proceedings must be approved by the Chief Justice. Any permitted in-court proceedings shall be limited to attorneys, parties, witnesses, security officers, and other necessary persons, as determined by the trial judge.
Judges are charged with the responsibility of ensuring that core constitutional functions and rights are protected. Additionally, court clerks are charged with ensuring that court functions continue. See Tenn. Code Ann. §§ 18-1-101 (2009); 18-1-105 (Supp. 2019). Nevertheless, all judges and court clerks are urged to limit in-person courtroom contact as much as possible by utilizing available technologies, including alternative means of filing, teleconferencing, email, and video conferencing. Any Tennessee state or local rule, criminal or civil, that impedes a judge’s or court clerk’s ability to utilize available technologies to limit in-person contact is suspended until March 31, 2020. See, e.g., Tenn. R. Civ. P. 43.01.
If it becomes necessary to close judges’ offices or court clerks’ offices during the period of suspension, these offices shall remain accessible by telephone and email to the extent possible during their regular business hours. If available, drop boxes should be used for conventionally filed documents.
This order expressly does not prohibit court proceedings by telephone, video, teleconferencing, email, or other means that do not involve in-person contact. This order does not affect courts’ consideration of matters that can be resolved without in-person proceedings.
Deadlines set forth in court rules, statutes, ordinances, administrative rules, or otherwise that are set to expire between March 13 and March 31, 2020 are hereby extended through April 6, 2020. Statutes of limitations and statutes of repose that would otherwise expire during the period between March 13 and April 6, 2020 are hereby extended through April 6, 2020. See Tenn. Code Ann. § 28-1-116 (2017). Deadlines, statutes of limitations, and statutes of repose that are not set to expire between March 13 and April 6, 2020 are not extended or tolled by this order.
Orders of protection and temporary injunctions that would otherwise expire between March 13 and March 31, 2020 are hereby extended until April 6, 2020.
This order applies statewide to all courts and court clerks’ offices except administrative courts within the Executive Branch and federal courts and federal court clerks’ offices located in Tennessee.

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Under the terms of this order, the courts of Tennessee remain open, consistent with the Judicial Branch’s obligation to mitigate the risks associated with COVID-19.
This order is intended to be interpreted broadly for protection of the public from risks associated with COVID-19.
It is so ORDERED. FOR THE COURT:
_________________________ Jeffrey S. Bivins, Chief Justice
C10240. G Cealk _________________________
Cornelia A. Clark, Justice
i_c_2_#_4-_a_,_1_4_"_,—_______________
Sharon G. Lee, Justice
_________________________ Holly Kirby, Justice
_________________________ Roger A. Page, Justice

Case 2:20-cv-02359-SHL Document 35-3 Filed 05/29/20 Page 1 of 5 PageID 543
EXHIBIT B

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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
IN RE: COVID-19 PANDEMIC ______________________
No. ADM2020-00428 ______________________

03/25/2020

ORDER CONTINUING SUSPENSION OF IN-PERSON COURT PROCEEDINGS AND EXTENSION OF DEADLINES
On March 13, 2020, in response to the COVID-19 pandemic, the Chief Justice of the Tennessee Supreme Court declared a state of emergency for the Judicial Branch of Tennessee government and activated a Continuity of Operations Plan for the courts of Tennessee. See Tenn. Const. Art. VI, § 1; Tenn. Code Ann. §§ 16-3-501 to 16-3-504 (2009); Moore-Pennoyer v. State, 515 S.W.3d 271, 276-77 (Tenn. 2017); Tenn. Sup. Ct. R. 49. This state of emergency constitutes a “disaster” for purposes of Tenn. Sup. Ct. R. 49 and Tenn. Code Ann. § 28-1-116. In light of ongoing concerns, the Tennessee Supreme Court hereby continues the suspension of in-person court proceedings and the extension of deadlines as set forth in this order. We again emphasize that the local and state courts of the State of Tennessee are open and will remain open under all circumstances, subject to the provisions of this order.
Under the constitutional, statutory, and inherent authority of the Tennessee Supreme Court, we adopt the following provisions. All in-person proceedings in all state and local courts in Tennessee, including but not limited to municipal, juvenile, general sessions, trial, and appellate courts, shall be suspended from the close of business on Friday, March 13, 2020, through Thursday, April 30, 2020, subject to the exceptions below.
Exceptions to this suspension of in-person court proceedings include, but are not limited to:
! Proceedings necessary to protect constitutional rights of criminal defendants, including bond-related matters, preliminary hearings for incarcerated individuals, and plea agreements for incarcerated individuals
! Proceedings related to relief from abuse, including but not limited to orders of protection
! Proceedings related to statutory order of protection hearings after entry of an ex parte order as necessary to satisfy any due process concerns

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! Proceedings related to emergency child custody or visitation orders ! Proceedings related to the voluntary surrender of parental rights ! Settlements involving a minor or a person with a disability ! Department of Children’s Services emergency matters related to child safety,
placement, permanency, or federal funding for children in foster care ! Proceedings related to petitions for temporary injunctive relief ! Proceedings related to emergency mental health orders ! Proceedings related to emergency protection of elderly or vulnerable persons ! Proceedings directly related to the COVID-19 public health emergency ! Other exceptions as approved by the Chief Justice
The presiding judge or the designee of the presiding judge of each judicial district is authorized to determine the manner in which in-person court proceedings for the exceptions listed above are to be conducted. Other exceptions to the suspension of in-person court proceedings must be approved by the Chief Justice. Any permitted in-court proceedings shall be limited to attorneys, parties, witnesses, security officers, and other necessary persons, as determined by the trial judge. Judges and their staff shall ensure that social distancing and other such measures are strictly observed. For purposes of implementing procedural matters during this time, the provisions of Rule 18(c) of the Rules of the Tennessee Supreme Court are suspended to allow judges to issue general orders.
Judges are charged with the responsibility of ensuring that core constitutional functions and rights are protected. Additionally, court clerks are charged with ensuring that court functions continue. See Tenn. Code Ann. §§ 18-1-101 (2009); 18-1-105 (Supp. 2019). Nevertheless, all judges and court clerks should minimize in-person contact by utilizing available technologies, including alternative means of filing, teleconferencing, email, and video conferencing.
Any Tennessee state or local rule, criminal or civil, that impedes a judge’s or court clerk’s ability to utilize available technologies to limit in-person contact is suspended through Thursday, April 30, 2020. See, e.g., Tenn. R. Civ. P. 43.01. With respect to plea agreements for non-incarcerated individuals, this suspension expressly applies to those provisions of Tenn. R. Crim. P. 11 which otherwise would require the proceeding to be in person in open court. See, e.g., Tenn. R. Crim. P. 11(b)(1) and (2), 11(c)(2)(A).
The presiding judge or the designee of the presiding judge of each judicial district shall develop a written plan to affirmatively address issues regarding the incarceration of nonviolent offenders in furtherance of efforts to reduce the jail population, including but not limited to bond reductions or eliminations, deferred sentences, and suspended sentences. The presiding judge or the designee of the presiding judge of each judicial district shall submit its plan to the Administrative Office of the Courts by the close of

Case 2:20-cv-02359-SHL Document 35-3 Filed 05/29/20 Page 4 of 5 PageID 546
business on Monday, March 30, 2020, absent an extension granted by the Chief Justice.
Judges’ offices and court clerks’ offices may limit in-person contact with the public during the period of suspension, but must remain functional. If it becomes necessary to close judges’ or court clerks’ physical offices during the period of suspension, these offices shall remain accessible by telephone, email and fax to the extent possible during regular business hours. If available, drop boxes should be used for conventionally filed documents.
This order expressly encourages and does not prohibit court proceedings by telephone, video, teleconferencing, email, or other means that do not involve in-person contact. This order does not affect courts’ consideration of matters that can be resolved without in-person proceedings. Although some non-emergency matters will need to be rescheduled, judges are to continue to resolve matters that do not require in-person court proceedings. Court clerks are to work cooperatively and at the direction of the presiding judge of each judicial district to fulfill the clerks’ obligation to facilitate continuing court function.
Deadlines set forth in court rules, statutes, ordinances, administrative rules, or otherwise that are set to expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020. Statutes of limitations and statutes of repose that would otherwise expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020. See Tenn. Code Ann. § 28-1-116 (2017). Deadlines, statutes of limitations, and statutes of repose that are not set to expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are not extended or tolled by this order.
With regard to notarizing documents at this time, attorneys and judges are encouraged to utilize the “Online Notary Public Act,” Tenn. Code Ann. § 8-16-301, et seq., and the regulations promulgated by the Secretary of State at Sec. of State, Tenn. R. and Reg. 1360-07-03-.01. Additionally, with regard to court filings, declarations under penalty of perjury may be used as an alternative to a notary.
Given the increasing economic issues caused by this pandemic, no judge, clerk, or other court official shall take any action to effectuate an eviction, ejectment, or other displacement from a residence during the effective dates of this order based upon the failure to make a rent, loan, or other similar payment absent extraordinary circumstances as determined by a judge in a court of competent jurisdiction. Nothing in this order affects the obligations, terms, or conditions for payment under existing contracts. Judges also are encouraged to work with court clerks and local law enforcement to develop policies severely limiting or eliminating any new garnishments during this time.

Case 2:20-cv-02359-SHL Document 35-3 Filed 05/29/20 Page 5 of 5 PageID 547
Orders of protection and temporary injunctions that would otherwise expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020.
This order applies statewide to all courts and court clerks’ offices except administrative courts within the Executive Branch and federal courts and federal court clerks’ offices located in Tennessee.
Under the terms of this order, the courts of Tennessee remain open, consistent with the Judicial Branch’s obligation to mitigate the risks associated with COVID-19. Judges should work with local law enforcement and other county officials to ensure that, to the extent possible, courthouses remain accessible to carry out essential constitutional functions and time-sensitive proceedings.
This order is intended to be interpreted broadly for protection of the public from risks associated with COVID-19.
It is so ORDERED. FOR THE COURT:
_________________________ Jeffrey S. Bivins, Chief Justice
CooLbG (LAI< _________________________
Cornelia A. Clark, Justice
cka.04, oze,_ _________________________
Sharon G. Lee, Justice
_________________________ Holly Kirby, Justice
_________________________ Roger A. Page, Justice

Case 2:20-cv-02359-SHL Document 35-4 Filed 05/29/20 Page 1 of 6 PageID 548
EXHIBIT C

Case 2:20-cv-02359-SHL Document 35-4 Filed 05/29/20 Page 2 of 6 PageID 549

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
IN RE: COVID-19 PANDEMIC ______________________
No. ADM2020-00428 ______________________

04/24/2020

ORDER MODIFYING SUSPENSION OF IN-PERSON COURT PROCEEDINGS AND FURTHER EXTENSION OF DEADLINES
On March 13, 2020, in response to the COVID-19 pandemic, the Chief Justice of the Tennessee Supreme Court declared a state of emergency for the Judicial Branch of Tennessee government and activated a Continuity of Operations Plan for the courts of Tennessee. See Tenn. Const. Art. VI, § 1; Tenn. Code Ann. §§ 16-3-501 to 16-3-504 (2009); Moore-Pennoyer v. State, 515 S.W.3d 271, 276-77 (Tenn. 2017); Tenn. Sup. Ct. R. 49. This state of emergency constitutes a “disaster” for purposes of Tenn. Sup. Ct. R. 49 and Tenn. Code Ann. § 28-1-116. On March 25, 2020, the Tennessee Supreme Court continued the suspension of in-person court proceedings and the extension of deadlines. Since that time, the State of Tennessee and its citizens have made progress in mitigating the risks associated with COVID-19 and preparing for a re-opening of various aspects of daily life. This includes a modification of the suspension of in-person court proceedings, with appropriate safeguards.
Under the constitutional, statutory, and inherent authority of the Tennessee Supreme Court, the prior suspension of in-person proceedings, except for jury trials, in all state and local courts in Tennessee, including but not limited to municipal, juvenile, general sessions, trial, and appellate courts, shall be modified as set forth in this order. Unless otherwise noted herein, the provisions of this order shall remain in place through Sunday, May 31, 2020.
1) The suspension of jury trials shall remain in effect through Friday, July 3, 2020. Any exceptions must be based on extraordinary circumstances and approved by the Chief Justice.
2) Courts should continue to conduct as much business as possible by means other than in-person court proceedings. Courts are encouraged to continue and even increase the use of telephone, teleconferencing, email, video conferencing or other means that do not involve in-person contact. All of these methods should be the preferred option over in-person court proceedings.

Case 2:20-cv-02359-SHL Document 35-4 Filed 05/29/20 Page 3 of 6 PageID 550
3) All courts within a judicial district shall continue to operate under the guidelines and restrictions set forth in this Court’s March 25, 2020 order until the Chief Justice has approved a written plan for the judicial district within which the court is located.
The presiding judge or the designee of the presiding judge of each judicial district, in coordination with the designated judge or other designee of the general sessions, juvenile, and municipal courts within each judicial district, shall develop a comprehensive written plan to gradually begin conducting in-person court proceedings (other than jury trials) in some non-emergency matters. Each plan should contain guidelines and restrictions designed to minimize to the greatest extent possible the risk of the spread of COVID-19 from in-person court proceedings. The written plans may include different guidelines and restrictions for different courts or counties within a judicial district. The written plans should include guidelines and restrictions addressing matters including but not limited to admission into the courthouse, limitation of the number of persons in the courtroom, staggering of hearing times, management of social distancing in the courthouse and in the courtroom, and handling of witnesses (e.g., having witnesses remain in their vehicles or placing them in separate rooms). The use of personal protection such as face masks, as well as appropriate use of disinfectants, is encouraged in courthouses to protect court personnel and the public. Screening measures such as touchless thermometers and health questions relevant to COVID-19 may be used for entry into courthouses. However, factors such as availability and cost of such measures should be taken into consideration before inclusion as mandatory requirements in a written plan. Alternatively, a written plan may consist of an election to continue to operate under the guidelines and restrictions set forth in this Court’s March 25, 2020 order. The presiding judge or the designee of the presiding judge of each judicial district shall submit its written plan to the Administrative Office of the Courts for approval by the Chief Justice.
4) Judges are charged with the responsibility of ensuring that core constitutional functions and rights are protected. Additionally, court clerks are charged with ensuring that court functions continue. See Tenn. Code Ann. §§ 18-1-101 (2009); 18-1-105 (Supp. 2019). Court clerks are to work cooperatively and at the direction of the presiding judge of each judicial district to fulfill the clerks’ obligation to facilitate continuing court function. Nevertheless, all judges and court clerks should continue to minimize in-person contact by utilizing available technologies, including alternative means of filing, teleconferencing, email, and video conferencing.
5) Any Tennessee state or local rule, criminal or civil, that impedes a judge’s or court clerk’s ability to utilize available technologies to limit in-person contact is suspended through Sunday, May 31, 2020. See, e.g., Tenn. R. Civ. P. 43.01. With respect to plea agreements for non-incarcerated individuals, this suspension expressly applies to those provisions of Tenn. R. Crim. P. 11 which otherwise would require the proceeding to be in
2

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person in open court. See, e.g., Tenn. R. Crim. P. 11(b)(1) and (2), 11(c)(2)(A). For purposes of implementing procedural matters during this time, the provisions of Rule 18(c) of the Rules of the Tennessee Supreme Court are suspended to allow judges to issue general orders.
6) Judges’ offices and court clerks’ offices may limit in-person contact with the public during the period of suspension, but must remain open for business. If it becomes necessary to restrict physical access to judges’ or court clerks’ offices during the period of suspension, these offices shall remain accessible by telephone, email and fax to the extent possible during regular business hours. If available, drop boxes should be used for conventionally filed documents.
7) Deadlines set forth in court rules, statutes, ordinances, administrative rules, or otherwise that are set to expire during the period from Friday, March 13, 2020, through Sunday May 31, 2020, are hereby extended through Friday, June 5, 2020. This extension does not apply to deadlines set forth in the Tennessee Rules of Appellate Procedure or the Rules of the Tennessee Supreme Court, except as otherwise provided by the orders of this Court entered March 27, 2020 (Order Suspending Board of Professional Responsibility’s Proceedings and Extending Deadlines) (Order Regarding Continuing Legal Education), March 31, 2020 (Order Clarifying the Extension of Deadlines), and April 2, 2020 (Order Temporarily Modifying Certain Provisions of Tennessee Supreme Court Rule 7). This extension does not apply to deadlines set forth in pre-trial scheduling orders, but such deadlines remain subject to extension by the trial courts in their discretion. Statutes of limitations and statutes of repose that would otherwise expire during the period from Friday, March 13, 2020, through Sunday May 31, 2020, are hereby extended through Friday, June 5, 2020. See Tenn. Code Ann. § 28-1-116 (2017). Deadlines, statutes of limitations, and statutes of repose that are not set to expire during the period from Friday, March 13, 2020, through Sunday, May 31, 2020, are not extended or tolled by this order.
8) Attorneys and judges are encouraged to utilize the “Online Notary Public Act,” Tenn. Code Ann. § 8-16-301, et seq., and the regulations promulgated by the Secretary of State at Sec. of State, Tenn. R. and Reg. 1360-07-03-.01. Additionally, Executive Order No. 26 issued by Governor Lee on April 9, 2020, addresses notary issues. With regard to court filings, declarations under penalty of perjury may be used as an alternative to a notary. The use of electronic signatures as provided under Rule 5B of the Tennessee Rules of Civil Procedure and Rules 46 and 46A of the Rules of the Tennessee Supreme Court is extended to any pleadings or documents to be filed or served by conventional means during the time that the state of emergency for the Judicial Branch remains in place.
9) Given the increasing economic issues caused by this pandemic, no judge, clerk, or other court official shall take any action to effectuate an eviction, ejectment, or other
3

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displacement from a residence during the effective dates of this order based upon the failure to make a rent, loan, or other similar payment absent extraordinary circumstances as determined by a judge in a court of competent jurisdiction. Nothing in this order affects the obligations, terms, or conditions for payment under existing contracts. Judges also are encouraged to work with court clerks and local law enforcement to develop policies severely limiting or eliminating any new garnishments during this time.
10) Orders of protection and temporary injunctions that would otherwise expire during the period from Friday, March 13, 2020, through Sunday, May 31, 2020, are hereby extended through Friday, June 5, 2020.
This order applies statewide to all courts and court clerks’ offices except administrative courts within the Executive Branch and federal courts and federal court clerks’ offices located in Tennessee.
Under the terms of this order, the courts of Tennessee remain open, consistent with the Judicial Branch’s obligation to mitigate the risks associated with COVID-19. Judges should work with local law enforcement and other county officials to ensure that, to the extent possible, courthouses remain accessible to carry out essential constitutional functions and time-sensitive proceedings.
This order is intended to be interpreted broadly for protection of the public from risks associated with COVID-19.
It is so ORDERED.
FOR THE COURT:
_________________________ Jeffrey S. Bivins, Chief Justice
Colvka a Uwd<
________________________ Cornelia A. Clark, Justice 4

Case 2:20-cv-02359-SHL Document 35-4 Filed 05/29/20 Page 6 of 6 PageID 553
f/iit4.01,,.
_________________________ Sharon G. Lee, Justice _________________________ Holly Kirby, Justice _________________________ Roger A. Page, Justice
5

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EXHIBIT D

Case 2:20-cv-02359-SHL Document 35-5 Filed 05/29/20 Page 2 of 3 PageID 555

Case 2:20-cv-02359-SHL Document 35-5 Filed 05/29/20 Page 3 of 3 PageID 556

 
 Case 2:20-cv-02359-SHL Document 37 Filed 06/04/20 Page 1 of 11 PageID 663

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY, ET AL.,

)

)

Plaintiff,

)

)

vs.

)

No.: 2:20-CV-02359-SHL

)

FLOYD BONNER, JR., ET AL.,

)

)

Defendants.

)

______________________________________________________________________________

RESPONDENTS-DEFENDANTS’ REPLY TO PETITIONERS-PLAINTIFFS’ RESPONSE IN OPPOSITION TO MOTION TO DISMISS
______________________________________________________________________________

Respondents-Defendants submit this Reply to Petitioners-Plaintiffs’ Response in

Opposition to their Motion to Dismiss (ECF No. 35).

LAW & ARGUMENT

I.

PETITIONERS SHOULD NOT BE EXCUSED FROM EXHAUSTING STATE LAW REMEDIES.

Petitioners concede that they did not attempt to exhaust state remedies prior to initiating

this § 2241 action. However, they argue that they should be excused from this requirement because

(1) state law remedies are unavailable in Tennessee and (2) the exhaustion requirement should be

waived “in light of the unique threat posed by COVID-19.” (ECF No. 35, PageID 526). Said

arguments are without merit, and dismissal is appropriate.

a. State law remedies are available under Tennessee Law.

State courts, like federal courts, are obliged to enforce federal law. O’Sullivan v. Boerckel,

526 U.S. 838, 844 (1999). “Comity thus dictates that when a prisoner alleges that his continued

confinement…violates federal law, the state courts should have the first opportunity to review this

claim and provide any necessary relief.” Id. It is only when state law remedies do not provide the

1

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petitioner the ability to obtain the relief he seeks that state law remedies are considered unavailable. See, e.g., Fazzini v. Ne.Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2009).
Contrary to Petitioners’ assertions that state law remedies are unavailable, Tennessee courts regularly entertain motions from pre-trial detainees seeking release from custody on the basis that their federal constitutional rights, including rights secured by the Fourteenth Amendment, are being violated due to their detention.1 These examples and numerous other criminal cases reveal that as part of the “standard review process,” pre-trial detainees in Tennessee can – and often do – seek relief, including release, due to alleged violations of their constitutional rights during their pre-trial detainment. Nothing prohibits these Petitioners from asserting such a claim in their respective state court proceedings simply because the underlying cause of their alleged rights violation is a pandemic.
Moreover, in response to COVID-19, the Tennessee Supreme Court ordered that as part of this “standard review process,” Tennessee courts must specifically consider the effects of COVID19 in setting or eliminating bond. See In Re: COVID-19 Pandemic, ADM2020-00428 (Tenn. March 25, 2020) (ordering all judicial districts to implement plans to reduce the jail population due to the COVID-19 pandemic through “bond reductions or eliminations, deferred sentences, and suspended sentences….”). Trial courts are given “very wide latitude” on whether to set bail. See
1 See e.g., State v. Burgins, 464 S.W.3d 298, 307-08 (Tenn. 2015) (considering on appeal pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure whether a pre-trial detainee’s due process rights as secured by the Fourteenth Amendment were violated when her bond was revoked); State v. Hill, 2019 Tenn. Crim. App. LEXIS 643, *6 (Tenn. Crim. App. March 21, 2019) (considering on appeal pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure whether a pre-trial detainee’s due process rights as secured by the Fourteenth Amendment were violated based upon the trial court’s order concerning the conditions of the detainee’s pre-trial release); State v. Clouse, 2001 Tenn. Crim. App. LEXIS 504, *11 (Tenn. Crim. App. July 11, 2001) (considering whether pre-trial detainee’s constitutional right to be free from double jeopardy as secured by the Fifth Amendment was being violated); State v. Clark, 2010 Tenn. Crim. App. LEXIS 249, *14 (Tenn. Crim. App. March 18, 2010) (considering whether convicted defendant’s right to a speedy trial as secured by the Sixth Amendment was violated when trial court denied a motion to dismiss for denial of a speedy trial prior to trial); State v. Leavy, 1999 Tenn. Crim. App. LEXIS 1296, *7 (Tenn. Crim. App. Dec. 21, 1999) (considering whether convicted defendants’ pre-trial detention was “punitive”).
2

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State v. Melson, 638 S.W.2d 342, 358 (Tenn. 1982). Pursuant to the Tennessee Supreme Court’s
orders, Tennessee judges have and continue to consider a pre-trial detainee’s vulnerability to
contracting COVID-19, in addition to other statutory factors, in making determinations on whether
to reduce bond and/or to release a pre-trial detainee from custody.
Petitioners rely heavily upon Cameron v. Bouchard, 2020 U.S. Dist. LEXIS 89083, **36-
37 (E.D. Mich. May 21, 2020) to argue they should be excused from exhausting state law remedies.
In Cameron, the Court found that Michigan did not have adequate state law remedies available for
the petitioners to pursue release due to COVID-19 prior to bringing their habeas petition. There,
the Court did not excuse exhaustion because there was not a state law remedy that exactly mirrored
a federal habeas petition. The Court excused exhaustion because the Court knew of no Michigan
law which allowed state law judges to release detainees as part of the “standard review process.”
The Court explained:
Defendants identify four instances where Oakland County Circuit Court judges released Jail inmates due to the coronavirus. In two cases, the state court did not identify the court rule or state statute on which it was relying to grant relief. In the remaining two cases, the court cited Michigan Compiled Laws Section 801.59b, which is part of Michigan’s County Jail Overcrowding Act. The statute does not set forth a remedy for inmates to pursue. Instead, it grants judicial officers the authority to suspend or reduce a jail sentence or modify bond in response to “a county jail overcrowding state of emergency.” See id.; Mich. Exec Order 2020-29 (Mar. 29, 2020). To the extent prisoners have obtained relief through this mechanism during the coronavirus pandemic, it is not part of the “standard review process” and is not a remedy through which state courts have “provided relief ... in the past.”
Cameron, 2020 U.S. Dist. LEXIS 89083 at *36-37.2 Here, unlike in Cameron, Respondents have
2 While Petitioners rely on Cameron to assert that they need not exhaust state law remedies because they are “unavailable,” the Eastern District of Michigan’s analysis of remedies available in the state of Michigan has no bearing on whether remedies are available in Tennessee. Furthermore, federal courts in Michigan are divided on whether state law remedies in Michigan are available to obtain release in light of COVID-19. See Williams v. Rapelje, 2020 U.S. Dist. LEXIS 84609, *3 (E.D. Mich. May 14, 2020) (dismissing a § 2254 petition seeking release due to COVID-19 for failure to exhaust state law remedies); Evil v. Whitmer, 2020 U.S. Dist. LEXIS 70653, *8 (W.D. Mich. April 22, 2020) (dismissing a petition seeking release due to COVID-19 because the petitioner failed to exhaust state law remedies which were available pursuant to Michigan rules allowing for the modification of pretrial custody orders).
3

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demonstrated that (1) Tennessee courts regularly entertain motions for release from pre-trial detainees based upon allegations that their federal constitutional rights are being violated due to their detention, (2) in-person “proceedings necessary to protect constitutional rights of criminal defendants,” have never been suspended in Tennessee during the COVID-19 pandemic, and (3) the Tennessee Supreme Court has specifically directed courts to consider the effects of COVID19 in setting, reducing, and eliminating bonds. Thus, Petitioners possess the means to challenge their confinement in state courts based upon allegations of constitutional rights violations and pursuant to the Tennessee Supreme Court’s orders, state courts must consider the effects of COVID-19 in deciding whether to detain or release them. Because state law remedies are available, Petitioners cannot be excused from seeking those remedies, and the petition should be dismissed.
b. No “exceptional circumstances” exist. Petitioners cite Rose v. Lundy, 455 U.S. 509, 515-16 (1982), for the proposition that exhaustion may be excused in “exceptional circumstances.” Notably, the Rose Court provided no guidance on what “exceptional circumstances” would justify waiving the exhaustion requirement. See Rose, 455 U.S. at 515 (“[I]t is a principle controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only in rare cases where exceptional circumstances of peculiar urgency are shown to exist.”). Though not cited by Petitioners, five years after Rose, the Supreme Court clarified when such “exceptional circumstances” exist. See Granberry v. Greer, 481 U.S. 129 (1987). In Granberry, the Court found an “exceptional circumstance” existed when the state failed to raise the petitioner’s failure to exhaust at the district court level. Notably, even there, the Court held that the district court must balance the principles of comity and judicial efficiency to determine whether exhaustion should be waived in such a unique circumstance. Id. at 134. The Court again
4

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emphasized, “[I]t is a principle controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only in rare cases where exceptional circumstances of peculiar urgency are shown to exist.”3 Id.
Indeed, intrusion into state proceedings already underway is warranted only in “extraordinary circumstances.” Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir. 1981). In the prison context, the Supreme Court has emphasized, “It is difficult to imagine an 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.” Preiser v. Rodriguez, 411 U.S. 475, 492 (1973). Here, in determining whether to release a pre-trial detainee due to COVID-19, Tennessee courts consider its effects along with other factors to make an individualized assessment of a detainee’s flight risk and danger to society. See Tenn. Code Ann. § 40-11-115. Said assessment is conducted by the state court which is familiar with, among other things, the seriousness of the detainee’s charges, the detainee’s prior criminal record, the detainee’s family-ties, and the strength of the prosecution’s case. Id. Notably, this is exactly the type of assessment Petitioners propose this Court make in determining which, if any, detainees should be released from the Shelby County Jail and if so, upon what terms they can be released.
Unexplainably, Petitioners stress that if this Court does not swiftly remove them from the Shelby County Jail, they will suffer irreparable harm, yet they have not even attempted to obtain the relief they seek from Tennessee state courts. If Petitioners truly believed their unproven assumptions that they will contract COVID-19 and then suffer significant adverse effects as a
3 Other than the narrow example provided for in Granberry, the Supreme Court has provided no other examples of “exceptional circumstances,” by which exhaustion should be excused, and other courts have limited their definition of “exceptional circumstances” to only situations when “state remedies are inadequate or fail to afford a full and fair adjudication of federal claims, or when exhaustion in state court would be futile.” See Victor v. Hopkins, 90 F.3d 276, 279-80 n.2 (8th Cir. 1996); Doty v. Lund, 78 F. Supp. 2d 898, 901 (N.D. Iowa 1999).
5

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result, they would have, at minimum, attempted to obtain relief from Tennessee Courts. Notably,
had Petitioners filed motions in their state court proceedings seeking an elimination of their bond
due to the alleged violation of their constitutional rights, their motions would have likely been
heard prior to the Court’s hearing on the Petitioners’ motion for temporary restraining order, and
certainly prior to the briefing deadlines set by the Court since the hearing. In light of the state law
remedies available to Petitioners, “exceptional circumstances” do not exist to justify waiving the
exhaustion requirement and the principles of federalism, comity, and judicial efficiency require
dismissal of Petitioners’ petition. II. PETITIONERS HAVE NOT SUFFERED A CONSTITUTIONAL DEPRIVATION.4
In their request for injunctive relief, Petitioners have also inappropriately attempted to
carve out a separate claim for unconstitutional “punishment” in addition to seeking relief from
alleged unconstitutional “conditions of confinement” at the Jail. Notwithstanding, the Fourteenth
Amendment’s due process clause protects pretrial detainees from cruel and unusual punishments.
Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir.
2018) (explaining that the Sixth Circuit has not determined whether the Kingsley v. Hendrickson
4 Petitioners have likewise failed to state a colorable claim for discrimination under the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act (“RA”). As a threshold matter, district courts within the Sixth Circuit have recently explained that alleged violations of the ADA are “inappropriate for a habeas corpus case.” Shaholli v. Deangelo-Kipp, 2020 U.S. Dist. LEXIS 92014, *27 (E.D. Mich. May 27, 2020) (referencing Meyers v. Hedgpeth, 2014 U.S. Dist. LEXIS 67198, (N.D. Cal. May 15, 2014) (“The ADA is not a federal constitutional provision or guarantee.”); see also Cometa v. Warden, 2020 U.S. Dist. LEXIS 33630, *4 (E.D. Ky. Feb. 27, 2020) (“[T]he Court will not address the merits of these [Eighth Amendment and ADA] claims because they are not proper in a habeas petition filed pursuant to 28 U.S.C. § 2241.”)). Moreover, “Inmates alleging claims under the ADA and the RA must show prison officials took the challenged actions because of the inmate’s alleged disability.” Finfrock v. Mohr, 2019 U.S. Dist. LEXIS 192024 (N.D. Ohio Nov. 5, 2019) (citing Clayton v. Michigan Dep’t of Corr., 2017 U.S. App. LEXIS 27251, **5-6 (6th Cir. Aug. 21, 2017) (explaining that “even accepting as true the inmate’s allegation that prison officials denied a request to transfer him to a facility with inpatient mental health treatment, he set forth no allegations to suggest that this denial was due to his HIV status.”)). Here, Petitioners have failed to allege sufficient facts or provide substantive evidence to establish that Respondents failed to provide Petitioners with any reasonable accommodations – other than immediate release from Jail – or that any specific action was taken against Petitioners because of their proposed disabilities. Accordingly, Petitioners’ ADA and RA claims must fail.
6

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decision abrogated the subjective component when evaluating the deliberate indifference claims of pretrial detainees); Martin v. Warren Cty., 799 F. App’x 329 (6th Cir. 2020) (determining that a district court did not inappropriately apply the deliberate indifference standard to a pre-trial detainee’s failure to provide adequate medical care claim and confirming, “[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”); Cameron, 2020 U.S. App. LEXIS 16741 at *22 (Bush, J., dissenting) (“In a deliberate indifference claim challenging the conditions of a prisoner’s confinement, the plaintiff must satisfy both the objective and subjective components of the Eighth Amendment inquiry. The same requirements apply to a pre-trial detainee’s due process rights under the Fourteenth Amendment.”). Fourteenth Amendment due process claims “are analyzed under the same rubric as Eighth Amendment claims brought by prisoners.” Huq, 885 F.3d at 938; Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013); Cooper v. Montgomery Cty., 768 F. App’x 385, 392 (6th Cir. 2019); Taylor v. Madison Cty. Sheriff’s Dep’t, 2019 U.S. Dist. LEXIS 212614, *4 n.1 (W.D. Tenn. Dec. 10, 2019) (“Although a pretrial detainee’s claim regarding the conditions of his confinement is reviewed under the Fourteenth Amendment's due process clause, the standard is the same.”). “In the context of a conditions-of-confinement claim, only extreme deprivations can be characterized as punishment prohibited by the Constitution.” Cox v. Gentry, 2019 U.S. Dist. LEXIS 209822, *7 (M.D. Tenn. Dec. 5, 2019).
Respondents have shown that they have adhered to and trained their personnel on numerous relevant policies and operating procedures, as well as continued to implement supplementary operational measures in compliance with CDC guidelines, to mitigate the spread of COVID-19. Respondents have further established that said policies, protocols, and measures, as applied, meet the community standard of medical care in a correctional setting, have successfully mitigated the
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spread of COVID-19, and have created a safe environment for detainees to reside. On the other hand, neither Petitioner has claimed, much less established with actual proof,
to have personally contracted COVID-19 or even contacted any COVID-19 positive individuals while housed within the Jail. To that extent, Petitioners’ own expert testified that Tennessee, unlike the other states referenced within his declaration, is not the site of an outbreak and that an individual is not more likely to contract COVID-19 simply because he is a certain age and/or suffers from an underlying medical condition. In reciting general, unsupported assertions, like “inmates…share sinks, toilets, and showers, as well as eating, sleeping, and living spaces,” Petitioners ultimately take the position that “there is no safe alternative to their confinement short of release.” (ECF No. 35, PageID 527, 529) (emphasis added).5 However, Respondents have established that neither Petitioner has an assigned cellmate and that all Jail detainees/inmates, including Petitioners, are supplied with masks, cleaning supplies, and adequate hygiene materials.
Furthermore, Respondents have shown that they, in conjunction with other law enforcement agencies and local state judicial officials, have engaged in successful efforts to reduce the overall Jail population by accelerating the cases for detainees with serious medical issues, for detainees of advanced age, and for detainees with pending misdemeanor or lesser felony charges. While Tennessee courts already consider numerous factors in determining whether pretrial detainees, like Petitioners, should be released and whether and for what amount bail should be set,6 the Criminal Court of Tennessee, Thirtieth Judicial District at Memphis has additionally implemented steps “to prevent jail overcrowding during the current health crisis…while not
5 In an attempt to advance this unsupported narrative, Petitioners again rely upon the Sixth Circuit’s recent decision in Cameron. Notably, the Court in Cameron, clarified, “And, as yet, the district court has not ordered the release of any inmate. If the district court does order the release of a prisoner, that may present a different question.” Cameron, 2020 U.S. App. LEXIS 16741 at *6. 6 See Tenn. Code Ann. § 40-11-115(b). Courts must also adhere to the Tennessee Constitution, which provides certain basic constitutional rights to the victims of crimes. See Tenn. Const. art. I § 35
8

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endangering public safety” and policies that have “greatly reduced the jail population.” (See ECF No. 35-5).
Based upon the above, Respondents have confirmed that Petitioners cannot establish that Respondents were deliberately indifferent to their constitutional rights at any time.7 Nevertheless, Petitioners are requesting this Court to assume the role of “super-warden” and to allow Petitioners to completely disregard the widespread efforts taken by Shelby County, Tennessee, the Sheriff’s Office, and the local state judicial officers to combat this “unprecedent pandemic.” See Swain v. Junior, 2020 U.S. App. LEXIS 14301 (11th Cir. May 5, 2020). In doing so, Petitioners have tellingly failed to include insight concerning various practical aspects of their request for wholesale release, including but not limited to: (1) Why is this Court in a better position to evaluate the factors outlined within Tenn. Code Ann. § 40-11-115(b) than the local state judicial officers, especially considering that neither Petitioner has even attempted to request relief in state court; (2) How should the known answers to the factors outlined within Tenn. Code Ann. § 40-11-115(b) be balanced against the possibility of contracting COVID-19 and its unknown consequences for each detainee; (3) How should more immediately dangerous charges, like aggravated domestic violence offenses, be evaluated prior to a detainee’s release; (4) Should the victim(s) of crimes have any influence and/or receive notification of a detainee’s potential release; (5) Should law enforcement
7 Likewise, Petitioners have failed to establish that their detention bears no relation to a legitimate, non-punitive purpose. Edgington is being detained on two (2) Class A felony charges involving conspiracy to manufacture/ deliver/sell controlled substance (cocaine) and trafficking high amounts of cocaine. Edgington is one (1) of thirtyeight (38) individuals indicted in a trafficking case and is accused of distributing a controlled substance within a school zone. Edgington’s bond was set at $500,000.00. Busby is being detained on numerous criminal charges including involving manufacture/delivery/sale of a host of controlled substances and being a felon in possession of a firearm. Busby sustained injuries after jumping from the second-floor balcony while attempting to evade arrest for said offenses. Busby’s bond was set at $239,000.00 for the drug charges and $25,000.00 for the felon in possession charge. Petitioners have failed to provide this Court with actual evidence to warrant an overhaul of the assessment conducted by the local state judicial officers that resulted in Petitioners’ respective bond amounts and detainment.
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cease their efforts to arrest future violators even if said violators pose a threat to the community;8 (6) If law enforcement officers are allowed to continue arresting violators, should arrestees be booked in the Jail prior to their ultimate release; (7) How long should arrestees remain within the Jail before their release; (8) What Court should make the determination(s) concerning future detainee release; (9) Should law enforcement officials be prohibited from arresting any detainee that was previously released if s/he commits a subsequent offense; and (10) What Court or official should maintain the authority to permit the Jail to resume “normal” activities and when should said processes resume.9
CONCLUSION Based upon the above and upon the record as a whole, this Court should grant Respondents’ Motion to Dismiss in its entirety, should deny Petitioners’ Motion for a Temporary Restraining Order, and should deny Petitioners’ Motion for Class Certification.
Respectfully submitted, PENTECOST, GLENN & MAULDIN, PLLC By: s/Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995
8 The Memphis Police Department and the Shelby County Sheriff’s Office are already issuing citations for all misdemeanor arrests unless the defendant poses a threat to the community. (ECF No. 35-5, PageID 555, ¶ 4). 9 Petitioners’ medical expert confirmed that he has never physically visited the Shelby County Jail.
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AND
Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100
Attorneys for Respondents-Defendants

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document was served via ECF filing system, upon the following:

Amreeta Mathai Andrea Woods ACLU 125 Broad Street New York, NY 10004

Jonathan Silberstein-Loeb Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019

Brice Moffatt Timmons Black, Mclaren, Jones, Ryland & Griffee, P.C. 530 Oak Court Drive, Ste. 360 Memphis, TN 38117

Zoe Brennan-Krohn ACLU 39 Drumm Street San Francisco, CA 94111

Thomas Hauser Castelli Stella Marie Yarbrough ACLU 210 25th Avenue N. P.O. Box 120160 Nashville, TN 37212

on or before the filing date thereof.

DATE: This the 4th day of June, 2020.

By: s/Nathan D. Tilly James I. Pentecost Nathan D. Tilly J. Austin Stokes

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 Case 2:20-cv-02359-SHL Document 38 Filed 06/10/20 Page 1 of 18 PageID 674

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY and MICHAEL

)

EDGINGTON, on their own behalf and on )

behalf of those similarly situated,

)

)

Plaintiffs,

)

v.

)

)

FLOYD BONNER, JR., in his official

)

capacity, and SHELBY COUNTY

)

SHERIFF’S OFFICE,

)

)

Defendants.

)

No. 20-cv-2359-SHL

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Before the Court is Defendants’ Motion to Dismiss, filed May 26, 2020. (ECF No. 25.) Plaintiffs responded on May 29, 2020 (ECF No. 35) and Defendants replied on June 4, 2020 (ECF No. 37.) For the following reasons, Defendants’ Motion to Dismiss is DENIED.
Also before the Court is Plaintiffs’ Motion for Class Certification, filed May 20, 2020. (ECF No. 3.) Defendants responded in opposition to Plaintiff’s Motion for Class Certification on May 26, 2020. (ECF No. 26.) For the following reasons, Plaintiffs’ Motion for Class Certification is GRANTED IN PART and DENIED IN PART. The Court will address Plaintiffs’ Motion for a Temporary Restraining Order shortly.
BACKGROUND The world is currently in the midst of a pandemic as a result of the novel coronavirus known as COVID-19. It has changed our way of life, both globally and in our community,

Case 2:20-cv-02359-SHL Document 38 Filed 06/10/20 Page 2 of 18 PageID 675
including in our detained population. It is highly contagious1 and potentially deadly.2 There is no vaccine at this time, nor an effective treatment protocol, other than basic treatment of the symptoms. The Centers for Disease Control and Prevention (“CDC”) currently concludes that certain individuals are at “higher risk for severe illness from COVID-19,” 3 including “people who are 65 years and older” as well as those with several “underlying medical conditions.”
We face a world today that we have not previously experienced. COVID-19 is unlike any virus those living today have seen, causing us all to alter our lives, stay distanced from one another and wear protective gear to keep the virus at bay. Examining how we confine those accused of crimes in this environment, particularly those who face a higher risk for a severe illness, is as novel as the virus itself, challenging us to apply accepted concepts of law to extraordinarily unique questions. The importance of getting it right cannot be overstated.
Plaintiff Favian Busby is a pretrial detainee at the Jail who “has diabetes and takes insulin.” (ECF No. 1, PageID 4.) Plaintiff Michael Edgington is also a pretrial detainee at the Jail who is 60 years old. (Id.) Named Plaintiffs seek to represent the proposed class, with their
1 “The virus that causes COVID-19 is thought to spread mainly from person to person, mainly through respiratory droplets produced when an infected person coughs or sneezes. . . Spread is more likely when people are in close contact with one another (within about 6 feet).” Centers for Disease Control and Prevention, Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019-Basics (last visited June 6, 2020.). 2 While the data changes daily, at the time of this Order, the CDC reports 1,973,797 confirmed cases of COVID-19 cases in the United States, resulting in 112,133 known deaths. Centers for Disease Control and Prevention, Cases in the U.S., https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html (last visited June 10, 2020.) 3 Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited June 5, 2020.)
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current counsel serving as class counsel. (ECF No. 3, PageID 214.) Plaintiff Busby seeks to represent the Subclass, with his current counsel serving as counsel to the Subclass. (Id.)
PROCEDURAL BACKGROUND On May 20, 2020, named Plaintiffs filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Class Action Complaint for Declaratory Injunctive Relief. (ECF No. 1.) Plaintiffs seek “urgent habeas and injunctive relief to protect medically vulnerable people and people with disabilities detained” at the Shelby County Jail (“Jail”), located at 201 Poplar Avenue in Memphis, Tennessee, in light of the COVID-19 pandemic. (Id.) Concurrently, Plaintiffs filed a Motion for a Temporary Restraining Order (“TRO”) (ECF No. 2) and a Motion for Expedited Consideration (ECF No. 3) of the TRO. The following day, the Court granted Plaintiffs’ Motion for Expedited Consideration and ordered Defendants to respond. (ECF No. 12.) Defendants timely responded with a Motion to Dismiss (ECF No. 25) and Response in Opposition to Plaintiff’s Motion for Class Certification (ECF No. 26) on May 26, 2020. The Court held a hearing via video teleconference on May 27, 2020. (See ECF Nos. 34, 36.) Following the hearing, Plaintiffs responded to Defendants’ Motion to Dismiss on May 29, 2020. (ECF No. 35.) Defendants replied on June 4, 2020. (ECF No. 37.)
PROPOSED CLASS DEFINITION
Plaintiffs seek to certify a class defined as:
All persons currently or in the future held at the Jail in pretrial custody during the COVID19 pandemic who are 55 and older, as well as all persons currently or in the future held at the Jail of any age who have: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g., bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d)
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diabetes or other endocrine disorders; (e) hypertension; (f) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (g) blood disorders (including sickle cell disease); (h) inherited metabolic disorders; (i) history of stroke; (j) neurological or developmental disability; (k) cancer or cancer treatments; (l) a BMI of 40 or more; and/or (m) muscular dystrophy or spinal cord injury.

(ECF No. 3, PageID 214.)

Within the Class, Plaintiffs seek to certify one subclass (“Subclass.”)

The proposed Subclass is defined as:

All persons currently or in the future held at the Jail in pretrial custody during the COVID19 pandemic who are at increased risk of COVID-19 complications or death because of disabilities as defined in the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The Subclass includes everyone in the Class except those people who are vulnerable solely due to age or BMI. People with all other conditions listed in paragraph (1) above are people with disabilities as defined under federal law.

(Id.) I. Motion to Dismiss

ANALYSIS

Defendants contend that Plaintiffs’ Petition must be dismissed for three reasons:4 (1) the

Petition is not cognizable under 28 U.S.C. § 2241 because it challenges the conditions of

confinement rather than the fact or duration of confinement, (2) Plaintiffs have yet to exhaust

state law remedies and (3) Plaintiffs’ have failed to comply with the requirements of the Prison

Litigation Report Act’s (“PLRA”). In response, Plaintiffs argue that (1) their claims are properly

brought under § 2241, (2) there is no available state remedy and (3) the PLRA does not apply to

their habeas claims.

4 In their Reply to Plaintiffs’ Response to the Motion to Dismiss, Defendants argue that Plaintiffs’ claims under the Americans with Disabilities Act and the Rehabilitation Act must fail. (ECF No. 37, PageID 668.) However, because Defendants raise this argument for the first time in their Reply, it is not well-taken, and not considered here.
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A. Cognizable as a Habeas Claim Generally, inmates in state custody seeking pretrial habeas relief must bring their claims under 28 U.S.C. § 2241. Atkins v. People of State of Mich., 644 F.2d 543, 546 n.1 (6th Cir. 1981); Winburn v. Nagy, No. 19-2398, at *2 (6th Cir. Apr. 23, 2020). Section 2241 provides a federal district court with jurisdiction over petitions for habeas corpus where a petitioner is in “custody in violation of the Constitution or laws or treaties of the United States.” § 2241(c)(3). Suits challenging the “fact or duration of confinement fall within the traditional scope of habeas corpus and accordingly are not cognizable under § 1983.” Thomas v. Eby, 481 F.3d 434, 438 (6th Cir. 2007.) These claims are cognizable under § 2241. Plaintiffs are challenging the execution or manner of their pretrial detention. See Edwards v. Dewalt, 681 F.3d 780, 784 (6th Cir. 2012) (“A prisoner can, for instance, use § 2241 to challenge the “execution or manner in which the sentence is served.”) They do not challenge, or seek alteration of, jail conditions. At the hearing, when asked directly if they are seeking a change in jail conditions, Plaintiffs’ counsel explained: We are certainly not asking you, Your Honor, to go in and make changes to the [jail] conditions. But the reason why we're not asking for that is because the challenge that we are presenting is to the validity of the confinement . . . . [T]here are no conditions at the jail under which Petitioners and the class members who are medically vulnerable or at otherwise at high risk of severe infections or death from COVID-19 can be safe. (ECF No. 36, PageID 582.) Plaintiffs argue that, regardless of whether conditions improve at the Jail, their challenge is to the fact that they are being confined in a community facility such as the Jail. (ECF No. 1, PageID 19–20.) So long as they are confined at the Jail during the pandemic, Plaintiffs contend that their confinement is unconstitutional. (ECF No. 2, PageID 53.) The nature of Plaintiffs’
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challenge, along with their requested relief— release or enlargement of custody—means that their claims are properly brought under § 2241.5 See Wilson v. Williams, 2020 U.S. App. LEXIS 14291, *4 (6th Cir. 2020) (“Where a petitioner claims no set of conditions would be constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement”); see also Wilson, Case No. 20-3441, ECF No. 54 (6th Cir. June 9, 2020) (same).
Given the facts here, Plaintiffs could have theoretically pled a § 1983 claim, but under which law they plead is their prerogative. See Ansfield v. Omnicare, Inc., 769 F.3d 455, 467 (6th Cir. 2014) (finding that a plaintiff is the “master of its complaint, which means that it can choose the forum in which to file and the law under which it wishes to seek relief”). Of course, this does not require the Court to ultimately grant the relief they seek. But, at a minimum, the Court finds that Plaintiffs’ pleading under § 2241 was proper.
B. Availability of State Remedies Generally, where state inmates seek relief under § 2241, they “must exhaust all available state court remedies before proceeding in federal court.” Phillips v. Court of Common Pleas, Hamilton Cty., Ohio, 668 F.3d 804, 810 (6th Cir. 2012). However, “exhaustion is a problem only if the state still provides a remedy for the habeas petitioner to pursue, thus providing the state courts an opportunity to correct a constitutionally infirm state court conviction.” Rust v.
5 That part of Plaintiffs’ requested relief is not release from custody but simply “enlargement” of the custody, in a form such as home confinement, does not preclude Plaintiffs from filing under § 2241. After all, unlike the other habeas statute, § 2255, there is “no similar requirement in § 2241 that a petitioner claim release from custody.” Wagner v. United States, 2020 WL 974894, at *6 (6th Cir. Feb. 28, 2020) (emphasis in original). For this reason, under § 2241, an inmate can bring “challenges to the location where a sentence is served, prison transfers, or a prison’s requirement that a prisoner make restitution payments while confined.” Id. (citations omitted).
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Zent, 17 F.3d 155, 160 (6th Cir. 1994). “If no remedy exists, and the substance of a claim has not been presented to the state courts, no exhaustion problem exists.” Id.
No exhaustion problem exists here. Certainly, state courts have an obligation to uphold federal constitutional law, and they often have procedures in place for people seeking relief for constitutional violations. See Stone v. Powell, 428 U.S. 465, 494 (1976). But given ample opportunity, Defendants fail to show that courts in Shelby County have procedures in place for the type of substantive due process grievances Plaintiffs bring to this Court. That is understandable. Pretrial detention should not last long.
Yet, what we have here are potentially hundreds of medically vulnerable people who seek release from a county jail amid a pandemic. The absence in Tennessee law of both a normal and a proven procedure which provides relief based on these unique medical needs for release means pretrial inmates in Shelby County have no available state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (noting that “state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past”).
Defendants cite to various Tennessee statutes, but none provide an avenue for inmates to seek the relief requested here. The Tennessee habeas statute is triggered in only two situations, neither of which arise here: where a conviction is void because the trial court was without jurisdiction or where a defendant remains confined despite the expiration of his sentence. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000); Benson v. State, 2019 WL 1388195, at *2 (Tenn. Crim. App. Mar. 26, 2019) (affirming denial of a pretrial inmate's habeas petition because it was “premature in that there were no convictions at the time of the . . . petition”) .
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Neither do the Tennessee’s pretrial processing statutes cited by Defendants provide an available remedy. After an arrest, Tennessee courts first consider releasing a “bailable” inmate—all pretrial criminal defendants save those charged with capital offenses—on their own recognizance or on an unsecured bond. See Hill v. Hall, No. 3:19-CV-00452, 2019 WL 4928915, at *3 (M.D. Tenn. Oct. 7, 2019). In deciding whether to release an inmate on their own recognizance, courts look to the following factors, none of which require consideration of an inmate’s health risks during confinement:
1. The defendant's length of residence in the community; 2. The defendant's employment status and history, and financial condition; 3. The defendant's family ties and relationships; 4. The defendant's reputation, character and mental condition; 5. The defendant's prior criminal record, including prior releases on recognizance or bail; 6. The identity of responsible members of the community who will vouch for defendant's
reliability; 7. The nature of the offense and the apparent probability of conviction and the likely
sentence, insofar as these factors are relevant to the risk of nonappearance; and 8. Any other factors indicating the defendant's ties to the community or bearing on the risk
of willful failure to appear. Tenn. Code Ann. § 40-11-115.
If release upon recognizance or on an unsecured bond is not appropriate, the court may impose conditions, such as bail, to help ensure the defendant’s appearance in court. See id. And even after those conditions are imposed, courts may alter those conditions, an option heavily relied on by Defendants. Yet, the same agnosticism to an inmate’s medical condition in the initial bail decision process pervades these pretrial processing statutes. See Tenn. Code Ann. §§ 40-11-116, -118. At none of these pretrial junctures do state courts have to consider an inmate’s request for release due to health risks. And because pretrial inmates in Shelby County seek exactly that, the various appellate procedures Defendants cite are equally unavailable to inmates. See Cameron, 2020 WL 2569868, at *14 (E.D. Mich. May 21, 2020).
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Defendants also point to recent Tennessee Supreme Court orders relating to the COVID19 pandemic, but unfortunately none address this particular issue. While the Tennessee Supreme Court has ordered various measures to ensure that critical proceedings continue, none of the measures in its orders outline a way in which a medically vulnerable pretrial detainee, in any state jail, may seek release based on that status. See In Re: Covid-19 Pandemic, No. ADM202000428 (Tenn. March 25, 2020).
Defendants attempt to rely on several state court decisions to argue that Tennessee courts regularly entertain similar constitutional grievances, but those cases are not on-point. In none of the cases did the Tennessee courts consider a pretrial inmate’s allegation that her substantive right to medical treatment under the Eighth Amendment was violated. Rather, in the cases cited, the state courts considered inmates’ procedural grievances, unrelated to health concerns, that arose amid pretrial detention. See, e.g., State v. Burgins, 464 S.W. 3d 298, 307–08 (considering whether pretrial detention without bond was a procedural due process violation); State v. Leavy, 1999 Tenn. Crim. App. LEXIS 1296, *7 (finding detention of a pretrial juvenile inmate without bond was not a procedural due process violation).
Defendants’ reliance on the declarations of Shelby County Criminal Court judges is also inapposite. The declarations, (ECF Nos. 27-3, 27-4), while addressing several important issues, do not point to any instance where a pretrial inmate’s request for release due to medical reasons was heard, and ruled on, based on a state statute or rule of criminal procedure. Of course, certain judges may be discretionarily (and sua sponte) considering pretrial inmates’ health risks. But evidence of even that happening in a particular instance in Shelby County has not been presented to this Court. Moreover, even if that was the case sometimes, it would be among those
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“extraordinary” state law remedies that are “technically available to the litigant but not required to be exhausted.” Smith v. Morgan, 371 F. App'x 575, 579 (6th Cir. 2010).
In sum, there is no normal and proven available state remedy by which a medicallyvulnerable pretrial detainee may challenge his custody or bond based on his medicallyvulnerable status. Therefore, exhaustion is not required.
C. Applicability of the PLRA Given that Plaintiffs’ claims are cognizable under § 2241, the PLRA’s requirements do not apply here. See 18 U.S.C. 3626(g)(2)(noting that the PLRA’s requirements do not apply to “habeas corpus proceedings challenging the fact or duration of confinement in prison”); Wilson, 2020 U.S. App. LEXIS 14291, *4 (“Petitioners’ proper invocation of § 2241 also forecloses any argument that the PLRA applies given its express exclusion of habeas corpus proceedings challenging the fact or duration of confinement in prison from its ambit”) (quotations omitted). Even if this was a § 1983 action, it is unclear whether the PLRA would preclude the Court’s consideration of this matter. See Cameron, 2020 WL 2569868, at *14 (holding that the PLRA’s requirement that a three-judge panel enter a prison release order due to a constitutional violation does not apply where overcrowding is not the primary cause of the violation). For these reasons, Defendants’ Motion to Dismiss is DENIED. II. Motion for Class Certification The Court next turns to Plaintiffs’ Motion for Class Certification.
A. Class Definition Plaintiffs seek to certify a class of detainees who are at a higher risk for severe illness from COVID-19. However, the definition offered by Plaintiffs for that proposed Class is much
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broader than the CDC’s list of persons who are at higher risk for adverse reaction should they
contract COVID-19.6
First, the CDC concludes that those age 65 and older, and those with certain underlying
medical conditions face a higher risk of severe consequences should they contract COVID-19.
According to the CDC, the underlying medical conditions include:
• People with chronic lung disease or moderate to severe asthma o Including chronic obstructive pulmonary disease (COPD) (including emphysema and chronic bronchitis), idiopathic pulmonary fibrosis and cystic fibrosis
• People who have serious heart conditions o Including heart failure, coronary artery disease, congenital heart disease, cardiomyopathies and pulmonary hypertension
• People who are immunocompromised o Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
• People with severe obesity (body mass index [BMI] of 40 or higher) • People with diabetes • People with chronic kidney disease undergoing dialysis • People with chronic liver disease, including cirrhosis • People with hemoglobin disorders, including sickle cell disease and thalassemia7
Despite the CDC’s position on the age of the vulnerable population, Plaintiffs’ proposed
Class includes all persons who are 55 years of age or older. Plaintiffs justify this expanded class
definition because “incarcerated patients tend to age faster than non-incarcerated persons.” (ECF
6 Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited June 5, 2020.)
7 Id.; Centers for Disease Control and Prevention, Groups Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higherrisk.html. The Court notes that medical information regarding COVID-19 is constantly evolving. Defendants do not contest the legitimacy of any of the medical conditions Plaintiffs propose to be used to consider membership in the Class.
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No. 2, PageID 46.) However, the Court is not persuaded by this argument and declines to depart
from the CDC’s guidelines in this sole area.
As to the “medically vulnerable,” Plaintiffs specifically list hepatitis, endocrine disorders,
metabolic disorders, people with a history of stroke and people with muscular dystrophy or a
spinal cord injury in their list of medically vulnerable class members. These conditions are not
listed on the CDC website, which is the cited source of information in Plaintiffs’ filings. (See
ECF No. 2, PageID 45 n.4.) Further, while Plaintiffs list asthma as a condition, the CDC
concludes that only “moderate to severe asthma” is a condition which may exacerbate COVID19.8
The Court has “broad discretion to modify class definitions.” Wilson v. Williams, 2020
U.S. Dist. LEXIS 70674, at *15 n.49 (N.D. Ohio April 22, 2020.) Because both Parties rely on
the CDC for guidance regarding health information related to COVID-19, the Court narrows the
proposed Class to be in conformity with the CDC guidelines. The Court will consider the
following to be the definition of the Class:
1. People 65 years and older; 2. People with chronic lung disease or moderate to severe asthma (including chronic
obstructive pulmonary disease (COPD) (including emphysema and chronic bronchitis), idiopathic pulmonary fibrosis and cystic fibrosis); 3. People who have serious heart conditions (including heart failure, coronary artery disease, congenital heart disease, cardiomyopathies and pulmonary hypertension); 4. People who are immunocompromised (including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications); 5. People with severe obesity (body mass index [BMI] of 40 or higher); 6. People with diabetes; 7. People with chronic kidney disease undergoing dialysis; 8. People with chronic liver disease, including cirrhosis; and 9. People with hemoglobin disorders, including sickle cell disease and thalassemia.
8 Id. 12

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B. Criteria for Class Certification Rule 23 of the Federal Rules of Civil Procedure (“FRCP”) governs class certification. Four requirements must be met for the Court to certify a class: numerosity (“the class is so numerous that joinder of all members is impracticable”); commonality (“there are questions of law or fact common to the class”); typicality (“the claims and defense of the representative parties are typical of the claims or defenses of the class”); and adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class.”). Fed. R. Civ. P. 23(a). In addition to these requirements, the class must fall into at least one of the categories listed in FRCP 23(b). Coleman v. GMAC, 296 F.3d 443, 446 (6th Cir. 2002.) Plaintiffs carry the burden of proof by a preponderance of the evidence that the class is proper. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011.)
1. Numerosity Joinder of all parties must be impractical to meet the first factor of FRCP 23(a). While there is no strict minimum number of plaintiffs defined by law, “Courts within the Sixth Circuit have recently stated that the numerosity requirement is fulfilled when the number of class members exceeds forty.” In re Wal-Mart ATM Fee Notice Litigation, 2015 WL 6690412, at *7 (W.D. Tenn. Nov. 3, 2015) (quotation and citation omitted.) Here, Plaintiffs, largely using the open-source research that is available to them at this stage of the litigation, estimate that membership of the proposed Class and Subclass “exceeds 300.”9 (ECF No. 3, PageID 218–19.)
9 Plaintiffs calculate this estimate based on the number of people in the Jail, epidemiologists’ estimates on the number of people who have a chronic health condition and publicly available data regarding the age of currently detained individuals at the Jail. (ECF No. 3, PageID 218–19.) The Court finds, that, despite its narrowing of the proposed class, it is highly likely that there are more than 40 detainees who fit the modified Class definition.
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Defendants argue that Plaintiffs “have presented no actual evidence about the proposed class.” (ECF No. 26, PageID 339.) Notably, while Defendants criticize the strength of Plaintiffs’ proof on numerosity, they do not actually contradict any of the data Plaintiffs rely on in their estimate, nor do they aver that it is incorrect. In fact, part of Plaintiffs’ request for data in the TRO is that which would likely be used to satisfy this requirement. However, Defendants oppose producing that data. Defendants’ demanding that Plaintiffs meet their burden while also keeping the information from them smacks of the proverbial “having one’s cake and eating it, too.” They cannot have it both ways.
The Court finds that, based on the record at this stage and by a preponderance of the evidence, joinder is impractical and numerosity is met.
2. Commonality FRCP 23(a)(2) requires that “there [be] questions of law or fact common to the class.” “What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (citation omitted.) Plaintiffs aver that there are questions of both law and fact which pertain to all members of the Class and Subclass and propose three that meet this criteria. (ECF No. 3, PageID 221.) First, “[d]oes COVID-19 present a risk of harm so severe to Class members detained at Shelby County Jail that the only constitutionally permissible way to protect them is to release them?” (Id. at PageID 222.) Second, “[h]ave Defendants failed to provide Subclass members reasonable modifications to protect against COVID-19 in violation of disability rights laws?” (Id.) Lastly,
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“[i]s release of Class and Subclass members from custody in light of the COVID-19 pandemic the only way the Jail can adequately protect vulnerable people from injury or death?” (Id.)
Defendants contest the commonality of the purported Class and Subclass based on the “individualized assessment” which would be required prior to the release of any detainee. (ECF No. 26, PageID 342.) They contend that an individual assessment must be done to determine whether the Jail can provide proper medical treatment, whether the detainee is a threat to the safety of the community, whether the detainee has a safe place to go should he or she be released and whether the detainee might put the public at risk of infection. (Id.) Defendants also raise issues related to the rights of crime victims, who, under the Tennessee Constitution, have enumerated rights which could be impacted by class certification. See Tenn. Const. art. I § 35. Notably, these rights include the right to be informed of proceedings and release of an accused, as well as to be present at all proceedings at which a defendant has the right to be present. Id.
Here, all members of the purported Class and Subclass are allegedly suffering the same injury due to Defendants’ alleged response to COVID-19. Despite the individual assessments that must occur if Plaintiffs are ultimately successful on the merits of their claims, there are common questions of fact and law that can be answered for the entire proposed Class to expedite a resolution. While Defendants are correct that individual assessments will have to be conducted, the commonality requirement does not require that all questions must be the same for all class members. “Even if individualized determinations . . . are necessary, the ‘mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant’s liability have been resolved does not dictate the conclusion that a class action is impermissible.” Cameron, 2020 WL 2569868, at *18 (quoting Sterling v. Veliscol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1998.))
15

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Because there are questions of law and fact that are common among the proposed members of the Class and Subclass, the Court finds by a preponderance of the evidence that commonality has been met.
3. Typicality
"A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the named plaintiff's] claims are based on the same legal theory." Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (quotation omitted.) Here, the purported Class and Subclass have the same claim, that, given their age and/or medical status, their current detention is unconstitutional in light of COVID-19. The legal theories are the same despite the potential for different results after individualized assessments later in litigation.
The Court finds by a preponderance of the evidence that typicality has been met. 4. Adequacy of Representation
There are two criteria for determining whether “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The representative and the unnamed members must have common interests, and it must appear that the representative will vigorously prosecute the interests of the class. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996.)
Here, Defendants did not contest the adequacy of representation. Named Plaintiffs and the remainder of the purported class have incentive to prosecute the case vigorously because their interests are identical. Due to the potential fatal result of contracting COVID-19, their incentive is high. Further, Plaintiffs are represented by several competent counsel and organizations that have experience in this area of litigation.
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C. FRCP 23(b)(2) In addition to meeting all of the factors under FRCP 23(a), plaintiffs must meet one of the criteria under FRCP 23(b). Certification under FRCP 23(b)(2) is appropriate where the party seeking it shows that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Courts have found that the requirements of Rule 23(b)(2) are “almost automatically satisfied in actions primarily seeking injunctive relief.” Williams v. City of Philadelphia, 270 F.R.D. 208, 222 (E.D. Pa. 2010) (citing Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1995)) (additional citation omitted). "Numerous courts have held that Rule 23(b)(2) is an appropriate vehicle in actions challenging prison conditions." Id. at 222 (citing cases). Here, Plaintiffs seek injunctive relief that requires Defendants to take specific action to address alleged ongoing constitutional violations of pretrial detainees at the Jail. This action falls under FRCP 23(b)(2).
CONCLUSION For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED, and Plaintiffs’ Motion for Class Certification is GRANTED IN PART and DENIED IN PART. The Court concludes that the modified Class and Subclass meet the requirements for class certification. The Class consists of all:
1. People 65 years and older; 2. People with chronic lung disease or moderate to severe asthma (including chronic
obstructive pulmonary disease (COPD) (including emphysema and chronic bronchitis), idiopathic pulmonary fibrosis and cystic fibrosis); 3. People who have serious heart conditions (including heart failure, coronary artery disease, congenital heart disease, cardiomyopathies and pulmonary hypertension); 4. People who are immunocompromised (including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or
17

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AIDS, and prolonged use of corticosteroids and other immune weakening medications); 5. People with severe obesity (body mass index [BMI] of 40 or higher); 6. People with diabetes; 7. People with chronic kidney disease undergoing dialysis; 8. People with chronic liver disease, including cirrhosis; and 9. People with hemoglobin disorders, including sickle cell disease and thalassemia. The subclass consists of: All persons currently or in the future held at the Jail in pretrial custody during the COVID19 pandemic who are at increased risk of COVID-19 complications or death because of disabilities as defined in the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The Subclass includes everyone in the Class except those people who are vulnerable solely due to age or BMI. People with all other conditions listed in paragraph (1) above are people with disabilities as defined under federal law. The Court ORDERS Defendants to file a list of Class and Subclass members on the docket, no later than noon on Friday, June 12, 2020. This list shall include: the detainee’s full name, the pod and cell number where the detainee is currently housed at the time of this Order and whether the detainee is occupying the cell alone, or the number of cellmates who live with the detainee. The Court will address the Motion for Temporary Restraining Order shortly and will include a schedule for the next steps in this litigation at that time. IT IS SO ORDERED, this 10th day of June, 2020.
s/ Sheryl H. Lipman SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE
18

 
 Case 2:20-cv-02359-SHL Document 45 Filed 06/12/20 Page 1 of 4 PageID 731

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY and MICHAEL

)

EDGINGTON, on their own behalf and on )

behalf of those similarly situated,

)

)

Plaintiffs,

)

v.

)

)

FLOYD BONNER, JR., in his official

)

capacity, and SHELBY COUNTY

)

SHERIFF’S OFFICE,

)

)

Defendants.

)

No. 20-cv-2359-SHL

ORDER ADDRESSING MOTION FOR TEMPORARY RESTRAINING ORDER

Before the Court are Plaintiffs’ Motion for Temporary Restraining Order (“TRO Motion”), (ECF No. 2), filed May 20, 2020, and Defendants’ Response, (ECF No. 27), filed May 26, 2020.
Along with this TRO Motion, Plaintiffs filed a Motion for Class Certification. (ECF No. 3.) On May 26, 2020, along with their Response to the TRO Motion, Defendants filed a Motion to Dismiss, and a Response to the Motion for Class Certification. (ECF Nos. 25, 26.) This Court denied Defendants’ Motion to Dismiss and granted in part Plaintiffs’ Motion for Class Certification on June 10, 2020. (ECF No. 38.)
In their TRO Motion, Plaintiffs seek urgent habeas and injunctive relief to protect medically vulnerable people and people with disabilities detained at the Shelby County Jail (“Jail”). Plaintiffs allege that their constitutional rights, under the Fourteenth Amendment, and their statutory rights, under the Americans with Disabilities Act and the Rehabilitation Act, are being violated. (ECF No. 2 at PageID 53-59.) Specifically, Plaintiffs allege that because testing,

Case 2:20-cv-02359-SHL Document 45 Filed 06/12/20 Page 2 of 4 PageID 732
screening, social distancing and hygiene measures are deficient at the Jail, only immediate release of medically vulnerable inmates will vindicate their constitutional and statutory rights. (Id. at PageID 50-51.) Furthermore, Plaintiffs allege that the confinement of medically vulnerable people in a congregate setting like the Jail is itself unconstitutional. (ECF No. 2, PageID 47.) Defendants contend in the Response that they are following all applicable standards. (ECF No. 27.)
ANALYSIS When deciding whether to issue a temporary restraining order, courts consider whether the moving party establishes the following four factors: (1) a strong or substantial likelihood of success on the merits; (2) irreparable harm unless injunctive relief is granted; (3) that the requested relief will cause substantial harm to third parties; and (4) whether injunctive relief is in the public interest. Northeast Ohio Coal. for Homeless and Service Emps. Int'l Union v. Blackwell, 467 F.3d 999 (6th Cir. 2006). The final two factors “merge when the Government is the opposing party.” Gun Owners of Am., Inc. v. Barr, 2019 WL 1395502, at *1 (6th Cir. Mar. 25, 2019). The standard for issuing a TRO is essentially the same as for a preliminary injunction. See ABX Air, Inc. v. Int'l Bhd. of Teamsters, Airline Div., 219 F. Supp. 3d 665, 670 (S.D. Ohio 2016). Here, the lack of a developed factual record prevents the Court from ruling on the merits. Consideration of Plaintiffs’ constitutional and statutory allegations requires a detailed examination of the facts. See, e.g., Cameron v. Bouchard, Case No. 20-1469 (6th Cir. Jun. 11, 2020) (noting that “all Eighth Amendment cases” require a “detailed examination of a distinct factual record”) (Cole, C.J., dissenting). No such record is before the Court. Plaintiffs and Defendants take divergent positions on several critical factual issues. For instance, the Parties
2

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dispute whether inmates are socially distanced, whether appropriate cleaning procedures have been implemented and whether inmates have proper access to hygiene supplies.
While this § 2241 case is about the fact of confinement and does not challenge the conditions themselves, the Court must have more evidence as to how Plaintiffs are being housed to determine whether there exist constitutional or statutory violations. Because material facts are contested here, an evidentiary hearing must be held before injunctive relief is considered. See Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 553 (6th Cir. 2007) (noting that “where facts are bitterly contested and credibility determinations must be made to decide whether injunctive relief should issue, an evidentiary hearing must be held”).
The Court is mindful that analysis of the other TRO factors may favor Plaintiffs. The exceptionally dangerous nature of the COVID-19 pandemic is lost on none. Yet, because the facts require further development to determine likelihood of success on these particular claims, a ruling on the Motion for a Temporary Restraining Order is held in abeyance. See Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor.”) (quotation marks omitted).
While further fact-finding is still necessary, the Court notes that the allegations of the lack of appropriate accommodations for at-risk inmates are disturbing. Amid this public health crisis, medically vulnerable people have been urged to take strong precautions. Yet, the vulnerable people seeking relief here are at the mercy of Jail officials as to the precautions implemented. As an example of the Court’s concern, the Class and Subclass lists filed by Defendants (ECF Nos. 43, 44 (sealed)) show that some members are being housed in dormitorystyle arrangements. This Court will not hesitate to act appropriately if it finds that Defendants
3

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have, in fact, violated medically vulnerable inmates’ constitutional rights. See Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 137 (1977) (noting that a prisoner does not lose his constitutional protections “as he passes through the prison's gates”).
CONCLUSION The Court’s ruling on the Motion for a Temporary Restraining Order is held in abeyance. Due to the conflicting facts presented by the Parties and pursuant to Federal Rule of Evidence 706, the Court will order an inspection of the Jail by an Independent Inspector. The Parties are hereby ORDERED to submit a joint recommendation for an Independent Inspector no later than 5:00 p.m. on Tuesday, June 16, 2020 as well as a proposed scope of inspection. If the Parties are unable to agree on an inspector or on the scope, each party is to propose two recommendations, along with curriculum vitae and a letter no longer than three pages, with supporting grounds for selection as well as a proposed scope. The Inspection will take place as soon as possible with the purpose of providing the Court and the Parties an independent assessment of the way in which COVID-19 is being taken into account in the Jail. The Court will hold a hearing on June 30, 2020 at 9:00 a.m. to hear from the Independent Inspector on his or her findings as well as any other proof the Parties wish to offer. IT IS SO ORDERED, this 12th day of June, 2020.
s/ Sheryl H. Lipman SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE
4

 
 Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 1 of 13 PageID 847

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby, Michael Edgington, Russell Leaks, and Joseph Nelson, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. 20-cv-2359-SHL

MOTION FOR EXPEDITED DISCOVERY

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 2 of 13 PageID 848 Favian Busby, Michael Edgington, Russell Leaks, and Joseph Nelson, on their own
behalf and on behalf of those similarly situated (“Plaintiffs”), by and through their undersigned attorneys, hereby move this Court for an order expediting discovery pursuant to Federal Rule of Civil Procedure 26(d) and (f). In support of this Motion, Plaintiffs rely on the facts, law, and argument set forth in the accompanying Brief in Support.
WHEREFORE, Plaintiffs respectfully request that this Court set an expedited briefing schedule as necessary and appropriate under the circumstances and order expedited discovery in this matter as set forth in the accompanying Brief in Support. Dated: June 19, 2020 Respectfully submitted /s/ Brice M. Timmons
2

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 3 of 13 PageID 849

Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Andrea Woods Amreeta S. Mathai American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org
Zoe Brennan-Krohn American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris* American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

3

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 4 of 13 PageID 850
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Jonathan M. Silberstein-Loeb David Kimball-Stanley* Adrienne Lee* Avery Medjuck* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com jsilberstein-loeb@paulweiss.com dkimball-stanley@paulweiss.com alee@paulweiss.com amedjuck@paulweiss.com
Attorneys for Plaintiffs * Application for admission pro hac vice forthcoming
4

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 5 of 13 PageID 851

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby, Michael Edgington, Russell Leaks, and Joseph Nelson, on their own behalf and on behalf of those similarly situated,
PetitionersPlaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
RespondentsDefendants.

Case No. 20-cv-2359-SHL

BRIEF IN SUPPORT OF MOTION FOR EXPEDITED DISCOVERY

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 6 of 13 PageID 852
INTRODUCTION To address the Court’s concerns regarding the incomplete factual record and to begin to resolve the factual disputes between the parties on several critical issues, Plaintiffs seek limited, expedited discovery. Specifically, Plaintiffs seek responses to four tailored interrogatories and eight narrow requests for production, see Exs. A and B, focused on the Jail’s response to COVID-19 and its efforts to protect the Class members in this action. Plaintiffs also seek the Court’s leave to depose Kirk Fields, the Chief Jailer at the Jail, Bruce Randolph, the County Health Officer with the Shelby County Health Department, and Donna Randolph, the Medical Director for the Jail all of whom filed declarations in support of Defendants’ opposition to Plaintiffs’ Motion for a Temporary Restraining Order; namely. See Exs. C, D, and E. As allowed for in the Court’s June 18 Inspection Order (ECF No. 56), Plaintiffs also seek leave to inspect the Shelby County Jail. See Ex. F. Plaintiffs are entitled to and have good cause for expedited discovery. Plaintiffs seek expedited discovery in connection with their pending motion for temporary injunctive relief and the Court has already ruled that a determination on the merits of Plaintiffs’ motion requires further factual development. Plaintiffs seek this discovery on an expedited basis prior to the Court’s scheduled hearing on their motion on July 1, 2020. The discovery sought is readily available to Defendants and easily produced, and even allowing for expedited discovery, Defendants have had and will have ample time to review the factual record. For these reasons, and for the reasons explained further below, the Court should grant Plaintiffs’ motion for expedited discovery.
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ARGUMENT I. Good Cause Exists to Grant Expedited Discovery.
Plaintiffs have shown good cause for and they are entitled to expedited discovery. The Court has already determined that “[h]ere, the lack of a developed factual record prevents the Court from ruling on the merits,” and “[c]onsideration of Plaintiffs’ constitutional and statutory allegations requires a detailed examination of the facts.” Order, ECF No. 45 at 2. As the Court has observed, because “[n]o such record is before the Court,” and because “Plaintiffs and Defendants take divergent positions on several critical factual issues,” “the facts require further development to determine the likelihood of success on these particular claims.” Order, ECF No. 45 at 2, 4. Accordingly, the Court has ordered its own independent inspection of the Jail and left open the possibility that either party may hire “its own expert to conduct its own inspection.” Inspection Order, ECF No. 56 at 4. Accordingly, and in order to develop the facts necessary to determine their likelihood of success on their claims, Plaintiffs seek expedited discovery in the form of targeted interrogatories and requests for production, depositions of three of Defendants’ declarants in this matter, and an expert inspection of the Jail.
Plaintiffs have good cause for expedited discovery. To determine whether good cause exists, courts may consider: (1) whether a request for injunctive relief is pending, (2) the breadth of the discovery requests, (3) the purpose of the requests, (4) the burden to comply, and (5) how far in advance of the typical discovery process the request was made. Arab Am. Civil Rights League v. Trump, No. 17-10310, 2017 WL 5639928, at *2 (E.D. Mich. Mar. 31, 2017). Plaintiffs satisfy all five factors.
First, Plaintiffs’ Motion for a Temporary Restraining Order is pending, and the Court has already made clear the need to develop the evidentiary record before the Court
3

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can rule on the merit of Plaintiffs’ Motion. Second, Plaintiffs’ discovery requests are “narrowly tailored” to obtain the information relevant to this determination. See 5ith Element Creative, LLC v. Kirsch, 2010 WL 4102907, at *2 (E.D. Ky. Oct. 18, 2010). Specifically, Plaintiffs interrogatories, requests for production, and proposed depositions are limited to ascertaining information regarding the measures the Jail has taken since March 12, 2020, the date on which Governor Bill Lee issued Executive Order No. 14 declaring a state of emergency, to prevent the spread of COVID-19 and to identify and protect the members of the Class (as defined in the Court’s June 10, 2020 Order (see ECF No. 38 at 17–18)).
Third, the compelling purpose of Plaintiffs’ discovery requests is to develop the “distinct factual record” the Court needs to rule on the merits of Plaintiffs’ claims. Order, ECF No. 45 at 2. The information Plaintiffs seek is necessary to show, for example, “whether inmates are socially distanced, whether appropriate cleaning procedures have been implemented and whether inmates have proper access to hygiene supplies.” Order, ECF No. 45 at 3. Plaintiffs are entitled to corroborate Defendants’ representations regarding the population of the Jail, the extent of the COVID-19 testing undertaken there, and the results of that testing, as well as their contention that they have mitigated the risk to members of the Class. See Defs. Opp., ECF No. 27 at 8, 27. The depositions Plaintiffs seek will provide an efficient and effective means in the limited time available to clarify the factual record. For the reasons in the Court’s Orders of June 12 and 18, the Jail inspection that Plaintiffs seek is necessary to develop the factual record required for the adjudication of Plaintiffs’ claims.
4

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Fourth, Defendants can readily comply with Plaintiffs’ requests. The information sought is available and easily produced. The information and documentation sought are either routinely created in the course of business or maintained in accordance with reporting requirements and monitoring of COVID-19. Defendants likely compiled much of the information in opposing Plaintiffs’ Motion for a Temporary Restraining Order. Likewise, the three witnesses Plaintiffs seek to depose have already submitted declarations in this matter.
Fifth, Defendants have already had adequate time to analyze the relevant facts such that they will not be prejudiced by expedited discovery at this stage. Indeed, Defendants have already opposed Plaintiffs’ motions for a temporary restraining order and for class certification and they have briefed a motion to dismiss. Given that they will still have further and sufficient opportunity to review the facts of the case, expedited discovery may be ordered without prejudice to Defendants.
Plaintiffs are also entitled to expedited discovery now. Limited expedited discovery is appropriate if there is “insufficient evidence to establish whether a Temporary Restraining Order should be issued.” Hanover Am. Ins. Co. v. Tattooed Millionaire Entertainment, LLC, 2016 WL 9307506 (W.D. Tenn. Nov. 22, 2016). Indeed, “[g]ood cause is usually found in cases involving requests for injunctive relief, [and] class actions . . . .” Giltnane v. Tenn. Valley Auth., 2009 WL 230594, at *2 (E.D. Tenn. Jan. 30, 2009); see also Advisory Committee Notes to 1993 amendments to Fed. R. Civ. P. 26(d) (noting that discovery before a Rule 26(f) conference “will be appropriate in some cases, such as those involving requests for a preliminary injunction”); Wilson v. Gordon, 2014 WL 12788888, at *3 (M.D. Tenn. Aug. 14, 2014) (collecting cases) (“courts within the Sixth
5

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 10 of 13 PageID 856
Circuit have endorsed the view that expedited discovery . . . may be appropriate in cases in which a preliminary injunction is sought.”). II. The Court Should Order Defendants to Oppose this Motion on an Expedited
Basis. So Defendants may submit arguments in reply to this motion before the July 1,
2020 hearing, Plaintiffs respectfully request that this Court set an expedited briefing schedule and order that Defendants file their opposition to this Motion, if any, not later than Monday, June 22, at 12:30 pm.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion. Dated: June 19, 2020 Respectfully submitted, /s/ Brice M. Timmons
6

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 11 of 13 PageID 857

Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Andrea Woods Amreeta S. Mathai American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org
Zoe Brennan-Krohn American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris* American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

7

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 12 of 13 PageID 858
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Jonathan M. Silberstein-Loeb David Kimball-Stanley* Adrienne Lee* Avery Medjuck* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com jsilberstein-loeb@paulweiss.com dkimball-stanley@paulweiss.com alee@paulweiss.com amedjuck@paulweiss.com
Attorneys for Plaintiffs * Application for admission pro hac vice forthcoming
8

Case 2:20-cv-02359-SHL Document 57 Filed 06/19/20 Page 13 of 13 PageID 859
CERTIFICATE OF SERVICE I, Brice Timmons, hereby certify that on June 19, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the Court’s electronic filing system. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system.
Respectfully submitted, /s/ Brice M. Timmons

 
 Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 1 of 14 PageID 912

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY, ET AL.,

)

)

Plaintiff,

)

)

vs.

)

No.: 2:20-CV-02359-SHL

)

FLOYD BONNER, JR., ET AL.,

)

)

Defendants.

)

______________________________________________________________________________

RESPONDENTS-DEFENDANTS’ RESPONSE IN OPPOSITION TO PETITIONERSPLAINTIFFS’ MOTION FOR EXPEDITED DISCOVERY
______________________________________________________________________________

Respondents-Defendants, Floyd Bonner, Jr., Shelby County Sheriff and the Shelby County

Sheriff’s Office (“Respondents-Defendants”) respond in opposition to Petitioners-Plaintiffs’

Motion for Expedited Discovery. [ECF No. 57.]

ARGUMENT

A. Petitioners-Plaintiffs are not automatically entitled to discovery, much less expedited discovery.

Unlike a normal civil plaintiff, a habeas petitioner is not entitled to discovery as a matter

of course, but only upon a fact-specific showing of good cause and in the Court’s exercise of

discretion. USCS Sec. 2254 Cases R 6; Bracy v. Gramley, 520 U.S. 899, 117 S. Ct. 1793, 138 L.

Ed. 2d 97 (1997).1 Before determining whether discovery is warranted, the Court must first identify

the essential elements of the claim on which discovery is sought. Id. (citing United States v.

Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996)). The burden of demonstrating

1 Pursuant to Rule 1(b) of the Rules Governing § 2254 Cases, federal courts apply the Habeas Rules to § 2241 proceedings. See White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (applying Habeas Rules to a § 2241 petition); Settle v. Parris, 2020 U.S. Dist. LEXIS 104922 (W.D. Tenn. June 16, 2020) (applying Habeas Rules to a § 2241 petition); Williams v. Holloway, 2016 U.S. Dist. LEXIS 32264, at *12 n.2 (W.D. Tenn. Mar. 14, 2016) (“The Habeas Rules apply to petitions brought under § 2241 challenging a prisoner’s detention”).

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 2 of 14 PageID 913
the materiality of the information requested is on the moving party. Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001) (citing Murphy v. Johnson, 205 F.3d 809, 813-15 (5th Cir. 2000)).
Under Rule 6(b), “a party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any documents.” USCS Sec. 2254 Cases R 6(b). While the Court may afford a habeas petitioner the right to conduct discovery, the Court may limit the extent of the discovery. USCS Sec. 2254 Cases R 6(a). When addressing a motion for discovery, “a habeas court must identify the ‘essential elements’ of the petitioner’s substantive claim . . . [and] evaluate whether ‘specific allegations . . . show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.’” Newton v. Kemna, 354 F.3d 776, 783 (8th Cir. 2004) (quoting Bracy, 520 U.S. at 904 & 908-09). A petitioner’s factual allegations may not be speculative or conclusory, and “Rule 6 does not authorize fishing expeditions.” Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000).
Here, Petitioners-Plaintiffs assume that they are entitled to discovery; however, they have failed to undergo the process as set forth by Rule 6 by providing specific reasons for their requests so that the Court may set the parameters of the discovery sought. Before the Court allows four (4) days of written discovery, depositions, and an on-site inspection by Petitioners-Plaintiffs, the Petitioners-Plaintiffs must provide reasons for their specific requests, and the Court must be given the opportunity to determine the parameters of what, if any, discovery will be allowed in the case as a whole. Because Petitioners-Plaintiffs have disregarded Rule 6, their motion for expedited discovery should be denied.

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 3 of 14 PageID 914
B. Petitioners-Plaintiffs have failed to show “good cause” for expedited discovery under the Federal Rules of Civil Procedure.
To the extent the Federal Rules of Civil Procedure apply to Petitioners-Plaintiffs’ expedited discovery request, Petitioners-Plaintiffs have failed to show the requisite “good cause” necessary to support their motion. Expedited discovery is not the norm. Branch Banking & Trust Co. v. Jones, 2018 U.S. Dist. LEXIS 204659, at *20 (E.D. Kent. Dec. 4, 2018); In re Paradise Valley Holdings, Inc., 2005 Bankr. LEXIS 2951, at *4 (E.D. Tenn. Bankr. Dec. 29, 2005). Generally, “[e]xcept in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E), or when authorized under these rules or by order or agreement of the parties, a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).” In re Paradise Valley Holdings, Inc., 2005 Bankr. LEXIS 2951 at *4. Expedited discovery can only be appropriate, if at all, to the extent the discovery is necessary to support a plaintiff’s request for an injunction. See Degeeter v. McNeill, 2007 U.S. Dist. LEXIS 105812, *7-8 (W.D. Tenn. Sept. 21, 2007). Even then, expedited discovery is appropriate only where discovery of certain facts is “unusually difficult or impossible.” Nellson v. Barnhart, 2020 U.S. Dist. LEXIS 98112, at *9 (D. Colo. June 4, 2020) (quoting Pod-Ners, LLC v. N. Feed & Bean of Lucerne Ltd. Liability Co., 204 F.R.D. 675, 676 (D. Colo. 2002)). “Courts should not grant leave without some showing of the necessity for expedited discovery. The court must protect defendants from unfairly expedited discovery.” Waggin’ Train LLC v. Normerica, Inc., 2009 U.S. Dist. LEXIS 110564, *3 (W.D. Tenn. Aug. 18, 2009) (citing Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982)). As such, litigants are entitled to expedited discovery only “upon a showing of good cause.” North Atlantic Operating Co. v. Huang, 194 F. Supp. 3d 634, 637 (E.D. Mich. 2016).
“Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.” Fabreeka Int’l

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 4 of 14 PageID 915
Holdings, Inc. v. Haley, 2015 U.S. Dist. LEXIS 116007, at *12 (E.D. Mich. Dept. 1, 2015). In considering whether good case exists, courts examine multiple factors including “[1] the danger that the nonmovant will not preserve the information sought, [2] whether expedited discovery will substantially contribute to moving the case forward, and [3] the narrow scope of the information sought.” Branch Banking & Trust Co., 2018 U.S. Dist. LEXIS 204659, at *21 (E.D. Ky. Dec. 4, 2018). Notably, the party requesting expedited discovery bears the burden of demonstrating good cause to abandon the usual discovery process. Id.
i. There is no danger that Respondents-Defendants will not preserve the information sought.
Regarding the first factor—the danger of destruction of the evidence— it was not addressed by Petitioners-Plaintiffs. There is, therefore, no allegation or basis to conclude that any relevant information in Respondents-Defendants’ possession will not be preserved.
ii. Expedited discovery will not substantially contribute to the case moving forward. Expedited discovery will not substantially contribute to this case moving forward. The hearing scheduled for July 1, 2020, is a continuation of the previously conducted hearing on Petitioners-Plaintiffs’ motion for a temporary restraining order and it is the Petitioners’ burden to show they are entitled to relief. The discovery Petitioners-Plaintiffs seek prior to the hearing is largely irrelevant. Petitioners-Plaintiffs brought a petition for habeas corpus, not a 42 U.S.C. § 1983 claim. To be a petition for habeas corpus, their claims must challenge the fact of their confinement, not the past conditions of their confinement. See e.g., Nelson v. Campbell, 541 U.S. 637, 643 (2004). The relief they seek is release, not damages, nor modifications to the Shelby County Jail’s response to COVID-19. [See ECF No. 50.] Indeed, this Court has already determined that Petitioners “do not challenge, or seek alteration of, jail conditions.” [ECF No. 38, PageID 678.] Instead, Petitioners-Plaintiffs’ “challenge is to the fact that they are being confined in a

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 5 of 14 PageID 916
community facility such as the Jail….and [s]o long as they are confined at the Jail during the pandemic, Plaintiffs contend that their confinement is unconstitutional.” [ECF No. 38, PageID 679.] As Petitioners-Plaintiffs’ counsel explained at the hearing:
We are certainly not asking you, Your Honor, to go in and make changes to the [jail] conditions. But the reason why we’re not asking for that is because the challenge that we are presenting is to the validity of the confinement . . . . [T]here are no conditions at the jail under which Petitioners and the class members who are medically vulnerable or at otherwise at high risk of severe infections or death from COVID-19 can be safe. [ECF No. 36, PageID 582.] Thus, Petitioners-Plaintiffs do not believe any remedy is available to protect their constitutional rights other than release. See also, Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S. Ct. 1242, 161 L. Ed. 2d 253 (2005) (explaining that the purpose of a writ of habeas corpus is to obtain release from “unlawful confinement”). Despite Petitioners-Plaintiffs’ contention that their claims concern the current fact of their confinement, they demand broad, expedited discovery concerning, not only the current conditions of the Shelby County Jail, but also its previous responses to the COVID-19 pandemic. For example, Petitioners seek a copy of “[a]ll written policies adopted or implemented…since March 12, 2020 regarding management of the COVID-19 pandemic as it relates to the Jail, Detainees, or Staff,” all “[d]ocuments reflecting or relating to communications, projections, estimates, studies, graphs, charts, spreadsheets, memos, reports, models, or calculations concerning the actual or potential impact of COVID-19,” and “Documents sufficient to show a daily count of the Detainee population from March 12, 2020 to the date of Your response to these requests.” [ECF No. 57-2.] Based upon these requests, it is also likely that during the depositions they propose to conduct, Petitioners-Plaintiffs would question deponents concerning the four-month history of the Shelby County Jail’s response to COVID-19. While such information could relate to a § 1983 conditions

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 6 of 14 PageID 917
of confinement claim, it does not relate to the current fact of Petitioners-Plaintiffs’ confinement. Accordingly, such discovery would not contribute to this case moving forward.2
Petitioners-Plaintiffs’ proposed expert inspection is likewise well-beyond what is relevant for this matter and would not substantially contribute to the case moving forward. PetitionersPlaintiffs seek permission for their expert to “inspect physical spaces for cleanliness….and to assess other issues relevant to the reduction of risk of contracting COVID-19.” [ECF No. 57-6, PageID 893.] Additionally, they propose their expert be allowed to “assess the adequacy and accessibility of cleaning and hygiene supplies…[and] observe and assess the degree to which staff implement the Jail’s policies regarding COVID-19.” [ECF No. 57-6, PageID 893.] Unexplainably, Petitioners-Plaintiffs desire to seek whether the jail is “clean,” whether cleaning supplies are supplied, and whether the Jail is following CDC guidelines, when in their own view, the answers to those questions are not determinative or relevant to whether their constitutional rights are being violated. Again, Petitioners-Plaintiffs brought a habeas petition – not a § 1983 claim. Their theory is that in light of COVID-19, no conditions in the Jail can satisfy constitutional standards. They fail to explain why they now wish to conduct discovery almost solely about the conditions of the Jail or how such information in any way advances this case.
Even if conditions of confinement are relevant to this matter, this case is akin to Nellson v. Barnhart, where the District Court of Colorado denied the plaintiffs’ motion for expedited discovery. In Nellson, the plaintiff, purportedly representing a class of similarly situated inmates, alleged that the defendants were not “(1) not screening inmates or staff members for COVID-19,
2 Notably, during the pendency of this case, Petitioners-Plaintiffs have publicly threatened a separate 42 U.S.C. § 1983 lawsuit against Respondents-Defendants. See https://dailymemphian.com/section/metro/article/14717/aclu-threatenssecond-lawsuit-against-shelby. Petitioners-Plaintiffs should not be allowed to conduct irrelevant discovery in this matter, on an expedited basis, in an attempt to learn information they actually intend to utilize for a future suit.

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 7 of 14 PageID 918
(2) not testing prisoners for COVID-19, (3) not isolating prisoners who test positive for COVID19, and (4) not preventing infected staff members from working” under the Eighth Amendment. Nellson, 2020 U.S. Dist. LEXIS 98112, at *1-2. The plaintiff filed a motion for temporary restraining order and preliminary injunction, requesting the defendants institute screening and testing of inmates and staff. Id. at *2. Subsequently, the plaintiff moved the court for expedited discovery, seeking, among other requests, communications “between state, regional, and national BOP officials on the BOP's response to COVID-19 at [the defendant prison].” Id. at *10-11. The court denied this request, noting that “[w]hile the facts underlying the[] various requests may be ‘unusually difficult or impossible’ to obtain without discovery, they are also irrelevant to the preliminary matter before the Court….What decisions the BOP could have taken is irrelevant to whether defendants should be required to screen, test, and isolate staff and inmates, or whether defendants are already implementing those measures.” Id. at *11. Here, like in Nellson, PetitionersPlaintiffs’ proposed discovery concerning what steps the Shelby County Jail should or could have taken in response to COVID-19 is irrelevant to the question before the Court – whether the “fact” of Petitioners-Plaintiffs’ confinement is constitutional.3
Furthermore, to the extent that Petitioners-Plaintiffs seek discovery concerning the current “fact” of their confinement or other issues the Court deems relevant to the “fact” of their confinement, they have likewise failed to show that expedited discovery will substantially contribute to this case moving forward. Learning such information would be duplicative in light of the Court already appointing Michael Brady to “render an expert opinion on the current health and safety of medically vulnerable Plaintiff-detainees at the Shelby County Jail. . . in light of the
3 Petitioners-Plaintiffs’ basis for their contention is that social distancing cannot occur in the Shelby County Jail. Thus, even if the Shelby County Jail fully complied with applicable CDC and other applicable guidelines and standards, Petitioners-Plaintiffs’ position is that their constitutional rights would still be violated if social distancing could not occur.

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 8 of 14 PageID 919
COVID-19 pandemic[.]” [ECF No. 56.] Mr. Brady will be granted “unrestricted access to the Facility unannounced, and may bring with him laptops or other similar equipment with internet access, cameras, cell phones, writing implements, and any other equipment required to conduct his site visit/s.” [ECF No. 56, PageID 844.] He will be permitted to “inspect areas of the facilities without limitation…[and will] be permitted to review all pertinent Facility and detainee records and documents including medical and mental health records, electronic or otherwise, and video footage in connection with his investigation.” [ECF No. 56, PageID 844-45.] He will further be allowed to interview “all supervisors and staff…immediately and without undue delay.” [ECF 56, 845.] After his inspection, Mr. Brady will prepare a written report and testify before the Court concerning his findings at the upcoming July 1, 2020 hearing. [ECF No. 56, PageID 845.]
“Courts should not grant leave without some showing of the necessity for expedited discovery [as] [t]he court must protect defendants from unfairly expedited discovery.” Waggin’ Train LLC v. Normerica, Inc., 2009 U.S. Dist. LEXIS 110564, *3 (W.D. Tenn. Aug. 18, 2009) (citing Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982)). Here, Petitioners-Plaintiffs fail to explain why expedited discovery is necessary when this Court has already appointed Mr. Brady to provide the Court an opinion on the Jail’s current response to COVID-19. Notably, they fail to identify even a single relevant fact they believe they can discover that Mr. Brady cannot. They seek documents, but Mr. Brady will already be allowed access to all relevant documents. They seek written interrogatory responses and deposition testimony, but Mr. Brady will already be allowed to interview Jail supervisors and staff. They seek to inspect the Jail, but Mr. Brady will already be allowed to do so.

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 9 of 14 PageID 920
Petitioners-Plaintiffs have failed to meet their burden to show that expedited discovery is necessary to move the case forward even one iota, much less that it is necessary for the case to substantially move forward. Accordingly, their request for expedited discovery must be denied.
iii. The discovery sought by Petitioners-Plaintiffs is overly broad, unduly burdensome, and prejudicial to Respondents-Defendants.
Contrary to Petitioners-Plaintiffs’ assertion, their requests are not narrowly-tailored, and it would in reality be impossible for Respondents-Defendants to fully respond to their requests within the time proposed. In Petitioners-Plaintiffs’ requests for production, Petitioners-Plaintiffs seek countless documents generated since March 12, 2020, concerning Respondents-Defendants response to the COVID-19 pandemic. [ECF No. 57-2.] For example, Petitioners-Plaintiffs seek “[d]ocuments sufficient to show all efforts, measures, or other steps You or the Jail have taken or are taking specifically on behalf of Detainees who are ‘high-risk for severe illness from COVID19’ as defined by the CDC.” [ECF No. 57-2, Req. No. 4.] Petitioners-Plaintiffs define “documents” broadly and seek not only hardcopy records, but also “electronic copies of electronic mail [and] text messages….” [ECF No. 57-2, PageID 57-2.] It would be impossible for RespondentsDefendants to perform an electronically stored information (“ESI”) search of all Shelby County Jail custodians’ email accounts and cell phones, identify any potentially responsive documents, review all potentially responsive documents, determine which, if any of said documents would be privileged, prepare any needed privilege log, and then produce to Petitioners-Plaintiffs all of said responsive documents within the proposed two-day time frame.4 To the contrary, such an undertaking would likely take several weeks, if not longer.
Forcing Respondents-Defendants to participate in a four-day discovery marathon would
4 Petitioners-Plaintiffs propose Respondents-Defendants respond to their proposed written discovery by 5:30 p.m. on Wednesday, June 24, 2020. [ECF No. 57-1, PageID 861; 57-2, PageID 871.]

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 10 of 14 PageID 921
likewise be unduly burdensome on Respondents-Defendants. As addressed at the previous hearing, the Shelby County Jail has two days of extensive COVID-19 testing scheduled during the week of June 22, 2020. During those two days, in addition to safely operating the Jail, jail staff will devote much of their time to ensuring detainees can be safely and efficiently tested. Additionally, depending upon the volume of documents Mr. Brady will request from Respondents-Defendants and upon the number of interviews that he wishes to conduct, jail staff will also be devoted to accommodating Mr. Brady’s requests. Forcing jail staff to additionally participate in written and/or oral discovery would cause undue burden on the Jail’s ability safely and efficiently operate the facility, provide the scheduled COVID-19 testing, and timely respond to Mr. Brady’s inquiries. Moreover, allowing such discovery could likewise interfere with Mr. Brady’s unannounced inspection. For example, if Petitioners-Plaintiffs are allowed to conduct depositions, it is likely they would be deposing a witness who at the exact same time Mr. Brady might wish to interview on-site during his inspection.
Similarly, allowing Petitioners-Plaintiffs’ own expert to conduct his or her own inspection of the Jail during the same week that Respondents-Defendants are conducting extensive COVID19 testing and making accommodations for Mr. Brady’s inspection causes an undue burden on Respondents-Defendants. In light of COVID-19, jail staff are already taking numerous additional steps to safely and efficiently operate the jail as well as protect the health of inmates. Being forced to accommodate two separate inspections at the same time that jail staff are already undertaking additional obligations due to COVID-19 would jeopardize jail staff’s ability to efficiently operate the facility. Additionally, because Mr. Brady’s inspection will be unannounced, allowing Petitioners-Plaintiffs access to the Jail via their own expert could result in their expert being present during and interfering with Mr. Brady’s inspection.

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 11 of 14 PageID 922
Forcing Respondents-Defendants to arrange for three depositions in addition to preparing the other discovery sought by Petitioners-Plaintiffs would cause an undue burden on RespondentsDefendants in other ways. For example, two of the three proposed deponents, Chief Kirk Fields and Dr. Donna Randolph, are intricately involved, not only in the day-to-day operations and medical care provided at the Jail, but also in its response to COVID-19.5 Forcing them into depositions with just a few days’ notice creates an undue hardship on Respondents-Defendants to ensure appropriate staff members are available in their absence. The third proposed deponent, Dr. Bruce Randolph, is Shelby County’s Health Officer. Among other many duties, Dr. Randolph oversees Shelby County, Tennessee’s response to COVID-19. As part of his duties, Dr. Randolph participates in regular COVID-19 briefings and advises numerous Shelby County entities on a daily basis. With almost no advanced notice, Petitioners-Plaintiffs seek to depose Dr. Randolph without regard to his numerous obligations in protecting the health and safety of the citizens of Shelby County. [See ECF No. 27-5, PageID 476.]
If allowed, Petitioners-Plaintiffs’ discovery will unduly burden Respondents-Defendants and will cause them prejudice by affecting Respondents-Defendants’ ability to be fully responsive and accommodating to Mr. Brady. Accordingly, Petitioners-Plaintiffs’ motion must be denied.
iv. Other factors support denying Petitioners-Plaintiffs’ request for expedited discovery.
Petitioners-Plaintiffs additionally cite “how far in advance of the typical discovery process the request was made” as a factor for the Court to consider. [ECF No. 57, PageID 853.] While Petitioners-Plaintiffs gloss over said factor, it likewise supports denying their motion. This case has been pending since May 20, 2020. [ECF 1.] When they initially filed their suit, Petitioner-
5 Dr. Donna Randolph is not an employee of Shelby County, Tennessee, and therefore, counsel cannot confirm her current ability to even attend the deposition sought by Petitioners-Plaintiffs.

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 12 of 14 PageID 923
Plaintiffs made no request for expedited discovery. On June 12, 2020, the Court initially set the case for another hearing on Petitioners-Plaintiffs’ motion for temporary restraining order. [ECF No. 45.] Unexplainably, Petitioners-Plaintiffs made no request for expedited discovery until a full week later. Obviously, in light of the swiftly moving nature of the case, the obligations that have been imposed on the Respondents, and the continuing obligations on the Respondents and their counsel, a full week is considerable. Had Petitioners-Plaintiffs truly believed that expedited discovery was necessary, there is no reason they should have waited until Friday, June 19, 2020, to file their motion. The effect of such a delay only serves to further burden RespondentsDefendants by forcing them to respond to discovery in a much tighter window of time during which they must also be fully available to accommodate Mr. Brady.6 In light of said delay, Petitioners-Plaintiffs cannot support their contention that they are “entitled to expedited discovery now,” and they should not be allowed to force Respondents-Defendants to engage in a four-day expedited discovery process.
CONCLUSION Based upon the above and upon the record as a whole, the Court should deny PetitionersPlaintiffs’ motion for expedited discovery.
6 It is also notable that Petitioners-Plaintiffs did not seek such relief until after they learned counsel, James I. Pentecost, had a family vacation planned beginning on June 24, 2020, the same day they now propose to begin conducting depositions and after they learned counsel, Nathan D. Tilly, had a vacation planned beginning on June 26, 2020, the last day of their proposed depositions. [ECF 47-1; 47-2.] Additionally, Petitioners-Plaintiffs make their request without regard to defense counsel’s professional schedules and defense counsel have other matters scheduled this week in other cases. For example, Mr. Tilly previously scheduled three depositions in another case this week and Mr. Pentecost as well as Mr. Stokes previously scheduled a mediation in another case this week.

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 13 of 14 PageID 924
Respectfully submitted,
PENTECOST, GLENN & MAULDIN, PLLC
By: s/Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995
AND
Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100
Attorneys for Respondents-Defendants

Case 2:20-cv-02359-SHL Document 64 Filed 06/22/20 Page 14 of 14 PageID 925

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document was served via ECF filing system, upon the following:

Amreeta Mathai Andrea Woods ACLU 125 Broad Street New York, NY 10004

Jonathan Silberstein-Loeb Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019

Brice Moffatt Timmons Black, Mclaren, Jones, Ryland & Griffee, P.C. 530 Oak Court Drive, Ste. 360 Memphis, TN 38117

Zoe Brennan-Krohn ACLU 39 Drumm Street San Francisco, CA 94111

Thomas Hauser Castelli Stella Marie Yarbrough ACLU 210 25th Avenue N. P.O. Box 120160 Nashville, TN 37212

on or before the filing date thereof.

DATE: This the day 22nd of June, 2020.

By: s/Nathan D. Tilly James I. Pentecost Nathan D. Tilly J. Austin Stokes

 
 Case 2:20-cv-02359-SHL Document 69 Filed 06/23/20 Page 1 of 8 PageID 979

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY and MICHAEL

)

EDGINGTON, on their own behalf and on )

behalf of those similarly situated,

)

)

Plaintiffs,

)

v.

)

)

FLOYD BONNER, JR., in his official

)

capacity, and SHELBY COUNTY

)

SHERIFF’S OFFICE,

)

)

Defendants.

)

No. 20-cv-2359-SHL

ORDER GRANTING IN PART AND LIMITING IN PART PLAINTIFFS’ MOTION FOR EXPEDITED DISCOVERY

Before the Court are Plaintiffs’ Motion for Expedited Discovery, (ECF No. 57), filed June 19, 2020, and Defendants’ Response in Opposition, (ECF No. 64), filed June 22, 2020. Plaintiffs seek the Court’s leave to conduct expedited discovery. For the following reasons, the Court GRANTS IN PART and LIMITS IN PART the Plaintiffs’ Motion for Expedited Discovery.
BACKGROUND On May 20, 2020, named Plaintiffs filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and a Class Action Complaint for Declaratory Injunctive Relief. (ECF No. 1.) Plaintiffs seek “urgent habeas and injunctive relief to protect medically vulnerable people and people with disabilities detained” at the Shelby County Jail (“Jail”), located at 201 Poplar Avenue in Memphis, Tennessee, in light of the COVID-19 pandemic. (Id.) Specifically, Plaintiffs allege that their constitutional rights, under the Fourteenth Amendment, and their statutory rights, under the Americans with Disabilities Act and the Rehabilitation Act, are being

Case 2:20-cv-02359-SHL Document 69 Filed 06/23/20 Page 2 of 8 PageID 980
violated. (ECF No. 2 at PageID 53-59.) Concurrently, Plaintiffs filed a Motion for a Temporary Restraining Order (“TRO”). (Id.)
This Court certified the Class, (ECF No. 38), but reserved ruling on the TRO Motion, given the need for further fact-finding, (ECF No. 45). To that end, the Court appointed its own expert (“Independent Inspector”) to render an opinion to the Court on the current accommodations provided to the medically vulnerable inmates in the Jail but noted that the Inspection Order did not preclude “either party from hiring its own expert to conduct its own inspection.” (ECF No. 56.)
Here, Plaintiffs seek the answers to four interrogatories and documents responsive to eight requests for production of documents (“RFPs”). Additionally, Plaintiffs seek to depose three Shelby County health officials and conduct an inspection of the Jail. Plaintiffs request the Court’s leave to conduct this discovery on an expedited schedule. If the Plaintiffs’ expedited discovery schedule is adopted, the written discovery responses are due on June 24, with the Shelby County health officials deposed on June 25 and June 26. Plaintiffs do not provide a date as to its desired inspection of the Jail, but aver that it will be at a mutually agreed upon time.
Defendants oppose the Motion on three grounds: (1) Plaintiffs, as habeas petitioners, do not show that good cause exists for any discovery, (2) Plaintiffs do not show that good cause exists for expedited discovery and (3) the discovery sought is overly broad, unduly burdensome and prejudicial to Defendants.
ANALYSIS The Court first turns to whether Plaintiffs meet their burden to conduct discovery as habeas petitioners and then to whether they meet their burden to conduct expedited discovery.
2

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After finding that Plaintiffs largely meet these burdens, the Court limits the scope of certain

overbroad discovery requests.

I.

Discovery as Habeas Petitioners

Habeas petitioners are “entitled to invoke the process of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so.” Rule 6(a), RULES GOVERNING SECTION 2254 CASES.1 Good cause exists where specific allegations show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief. See Harris v. Nelson, 394 U.S. 286, 300 (1969); Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991). Petitioner need not show that the additional discovery would definitely lead to relief. See Payne v. Bell, 89 F. Supp. 2d 967, 970 (W.D. Tenn. 2000). Rather, he need only show good cause that the evidence sought would lead to relevant evidence regarding his petition. Id.
Here, Plaintiffs are entitled to discovery because the evidence sought is directly relevant to the essential elements of their Fourteenth Amendment and ADA claims. Plaintiffs allege that they are being confined in violation of the Constitution, and include affidavits with support for those allegations. (See, e.g., ECF Nos. 2-6, 2-7, 2-8, 2-9.) Plaintiffs’ discovery requests probe into the health and safety measures implemented at the Jail amid the COVID-19 pandemic. The specific information that Plaintiffs seek from Defendants—e.g., how inmates are tested, Jail policies regarding the COVID-19 pandemic, how inmates are housed—are material to how Defendants are addressing the potential spread of the virus within the facility. The Court has reason to believe that if Plaintiffs can uncover sufficient facts through its discovery requests that

1 The Rules Governing Section 2254 cases may also be applied to habeas actions filed under § 2241. See Rule 1(b), RULES GOVERNING SECTION 2254 CASES.
3

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Defendants’ detention measures are “excessive” or that Defendants acted with “deliberate

indifference” toward Plaintiffs, Plaintiffs may be entitled to relief. (ECF No. 2 at PageID 53-59.)

See also Payne v. Bell, 89 F. Supp. 2d 967, 970 (2000).

Recall why the Court withheld ruling on Plaintiff’s TRO Motion. Plaintiffs contend that

Defendants are punishing pretrial inmates through confinement, that Defendants are deliberately

indifferent to medically vulnerable inmates’ health needs and that Defendants fail to provide

reasonable accommodations to disabled inmates. Plaintiffs provided sworn affidavits and

declarations attesting to these allegations. For instance, Plaintiffs’ declarants stated that Jail staff

are moving from pod-to-pod without masks, and without regard to the medically vulnerable

inmates. (ECF Nos. 2-7, 2-9.) If some of their graver allegations are true, Plaintiffs may be

entitled to habeas relief.

Yet, because Defendants attested to the exact opposite of Plaintiffs’ allegations, i.e. that

the Jail’s health measures are aligned with those recommended by the Centers of Disease Control

and Prevention, the Court reserved ruling on the TRO Motion until it could determine whose

factual allegations are accurate. That the TRO Motion is pending due to an undeveloped factual

record suggests that the Parties do their part, and speedily conduct discovery in the coming days

and weeks. While the facts can never be developed enough for the Court to rule on such an

emergency motion, Plaintiffs’ proposed expedited discovery is a step in the right direction. This

habeas petition is one where discovery is permitted, indeed is necessary.

II.

Expedited Discovery

In some cases, “such as those involving requests for preliminary injunction,” expedited discovery may be appropriate. See Fed. R. Civ. P. 26(d) 1993 Advisory Committee Notes. Courts look to whether circumstances show “good cause” for expedited discovery. See Fabreeka

4

Case 2:20-cv-02359-SHL Document 69 Filed 06/23/20 Page 5 of 8 PageID 983
Int'l Holdings, Inc. v. Haley, 2015 WL 5139606, at *5 (E.D. Mich. Sept. 1, 2015). Specifically, a party seeking discovery “must demonstrate the need to deviate from the normal timing of discovery.” Arab Am. Civil Rights League v. Trump, 2017 WL 5639928, at *2 (E.D. Mich. Mar. 31, 2017). Some factors courts consider under the good cause standard include whether a preliminary injunction is pending, the breadth of the discovery requests, the purpose for the request, the burden to comply and how far in advance of the typical discovery process the request was made. Id.
Plaintiffs show a sufficient need to conduct expedited discovery. Plaintiffs are pretrial inmates with an increased risk of significant health issues, even death, if they contract COVID19. They allege constitutional violations that cannot be remedied if the worst occurs. Therefore, Plaintiffs have a pressing reason to conduct a speedy probe into what health and safety measures Defendants are implementing at the Jail, and more generally how the medically vulnerable are being confined.
Consider how some of the other factors under the good cause standard also favor expedited discovery. First, a Motion for Temporary Restraining Order is pending here. See Degeeter v. McNeill, 2007 U.S. Dist. LEXIS 105812, *8, 2007 WL 9706576 (noting that expedited discovery may be appropriate “to the extent the discovery is necessary to support plaintiff’s motion for preliminary injunction”). The sole reason it is pending is because of an undeveloped factual record. Second, the burden on Defendants to comply with the requests, with certain exceptions discussed below, is relatively low. Most of the written discovery Plaintiffs seek, such as testing information or Jail policies, should be readily available and easily produced. While expedited discovery will undoubtedly burden Jail officials, ultimately, that burden is greatly outweighed by a pressing need of further fact-finding. See Trump, 2017 WL 5639928, at
5

Case 2:20-cv-02359-SHL Document 69 Filed 06/23/20 Page 6 of 8 PageID 984
*2 (“An important inquiry in determining if good cause exists is whether the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party.”).
Also, the breadth of Plaintiffs’ discovery requests is largely tailored to their immediate fact-finding needs. Interrogatories 1 and 2 relate to testing; the remaining two Interrogatories relate to how inmates exposed to, or infected with, COVID-19 are housed. RFPs 1, 3, 4, 5 and 7 relate to the policies and medical measures at the Jail, including those implemented for curbing the spread of COVID-19 in the facility; RFP 6 seeks a daily count of the Jail’s detainee population; RFP 8 seeks production of documents that are provided to the Independent Inspector.
Whether Defendants’ detention measures are “excessive”, or that they have been “deliberately indifferent” to pretrial inmates’ medical needs, as Plaintiffs allege, can likely be uncovered through these discovery requests. See J.H. v. Williamson County, Tennessee, 951 F.3d 709, 717, 720-23 (2020). Similarly, Plaintiffs’ proposed depositions and inspection of the Jail also relate directly, with certain exceptions discussed below, to these constitutional and statutory allegations.
That an Independent Inspector will also provide an expert opinion on the current situation in the Jail does not preclude Plaintiffs’ discovery. The Independent Inspector was appointed by the Court, and is the Court’s witness—not either Party’s. See Fed. R. Evid. 706 (governing the procedure for court-appointed expert witnesses, and noting that “this rule does not limit a party in calling its own experts”). It is with this in mind that the Court expressly stated that nothing “precludes either party from hiring its own expert to conduct its own inspection.” (ECF No. 56.) Given that Defendants have virtually full access to the Jail, with the opposite being true for
6

Case 2:20-cv-02359-SHL Document 69 Filed 06/23/20 Page 7 of 8 PageID 985

Plaintiffs, that Plaintiffs seek to inspect the Jail via its own expert should raise no eyebrows. See

Nellson v. Barnhart, 2020 U.S. Dist. LEXIS 98112, *9 (D. Colo. June 4, 2020) (noting that

expedited discovery may be appropriate “where discovery of certain facts is unusually difficult

or impossible”).

Defendants argue that the discovery requests focus on the conditions of confinement but

this petition is about the fact of confinement. While it is true that Plaintiffs do not seek to alter

the conditions at the Jail, the Court must understand the Jail’s current conditions, as well as its

responses to the COVID-19 pandemic, to assess whether the fact of confinement violates the

Constitution or the ADA and Rehabilitation Act. Indeed, Plaintiffs must show that the

conditions at the Jail are so constitutionally deplorable that “no set of conditions would be

constitutionally sufficient.” Wilson v. Williams, 2020 U.S. App. LEXIS 14291, *4 (6th Cir.

2020). If Plaintiffs can prove their allegations through discovery, they may be entitled to release,

the relief appropriate for such a fact of confinement suit.

III.

Limitation of Certain Requests

Plaintiffs have good cause to conduct expedited discovery, with the exceptions outlined below. See Branch Banking & Trust Co. v. Jones, 2018 U.S. Dist. LEXIS 204659, *24, 2018 WL 6331684 (E.D. Ky. Dec. 4, 2018) (“Courts may limit the scope of overbroad discovery requests”). If Defendants have specific objections to certain written discovery requests, e.g., on medical privacy or attorney-client privilege grounds, the Parties must engage in good-faith consultation before asking the Court to resolve any objection. The Court hereby LIMITS the scope of the following discovery requests due to their overbroad nature:
• RFP 2’s scope is limited to the documents related to the Jail.

7

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• Plaintiffs may retain an expert to inspect the Jail, but that expert may not be accompanied by counsel during the inspection, nor may the expert take videos or photos during the inspection. Defendant shall provide the same courtesies and support to this inspector as they have or will to the Independent Inspector.
Defendants shall immediately begin responding to the written discovery, in rolling-
batches, until June 26, 2020. For those requests which Defendants are genuinely unable to
respond to by June 26, they are to be responded to by June 29, 2020.
Plaintiffs’ depositions and the proposed inspection will have to wait until after the July 1
hearing.
SCHEDULE

The Court recognizes the need to balance the Parties’ interest in gathering the facts they

need with the difficulties presented by the expedited nature of this case. In that light, the Court

ORDERS the following deadlines:

• Defendants Produce Written Discovery:

June 24-29, 2020

• Independent Inspector Hearing: (This hearing will only include the presentation of the

independent inspector. No other proof may be offered.)

July 1, 2020

• Depositions and Plaintiffs’ Inspection:

July 2-8, 2020

• TRO Hearing:

July 10, 2020 at 9:30 a.m.

IT IS SO ORDERED, this 23rd day of June, 2020.

s/ Sheryl H. Lipman SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE

8

 
 Case 2:20-cv-02359-SHL Document 78 Filed 06/30/20 Page 1 of 3 PageID 1131

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY, ET AL.,

)

)

Plaintiff,

)

)

vs.

)

No.: 2:20-CV-02359-SHL

)

FLOYD BONNER, JR., ET AL.,

)

)

Defendants.

)

______________________________________________________________________________

RESPONDENTS-DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED PETITION
______________________________________________________________________________

Respondents-Defendants, Floyd Bonner, Jr., Shelby County Sheriff and the Shelby County

Sheriff’s Office, by and through their undersigned counsel, respectfully move the Court to dismiss

the Petitioners’ First Amended Petition for Writ of Habeas Corpus pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. In support of this motion, Respondents-Defendants rely upon

their Memorandum in Support of Respondents-Defendants’ Motion to Dismiss the First Amended

Petition.

Respectfully submitted,

PENTECOST, GLENN & MAULDIN, PLLC
By: s/Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995 – Telephone (731) 668-7163 – Fax jpentecost@pgmfirm.com ntilly@pgmfirm.com astokes@pgmfirm.com

Case 2:20-cv-02359-SHL Document 78 Filed 06/30/20 Page 2 of 3 PageID 1132
AND Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100 Attorneys for Respondents-Defendants

Case 2:20-cv-02359-SHL Document 78 Filed 06/30/20 Page 3 of 3 PageID 1133

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document was served via ECF upon the following:

Amreeta Mathai Andrea Woods ACLU 125 Broad Street New York, NY 10004

Jonathan Silberstein-Loeb Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019

Brice Moffatt Timmons Black, Mclaren, Jones, Ryland & Griffee, P.C. 530 Oak Court Drive, Ste. 360 Memphis, TN 38117

Zoe Brennan-Krohn ACLU 39 Drumm Street San Francisco, CA 94111

Thomas Hauser Castelli Stella Marie Yarbrough ACLU 210 25th Avenue N. P.O. Box 120160 Nashville, TN 37212

Maria V. Morris
ACLU 915 15th St. NW Ste 7th Floor
Washington, DC 20005

on or before the filing date thereof.

DATE: This the day 30th of June, 2020.

By: s/Nathan D. Tilly James I. Pentecost Nathan D. Tilly J. Austin Stokes

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 1 of 14 PageID 1134

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY, ET AL.,

)

)

Plaintiff,

)

)

vs.

)

No.: 2:20-CV-02359-SHL

)

FLOYD BONNER, JR., ET AL.,

)

)

Defendants.

)

______________________________________________________________________________

RESPONDENTS-DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS THE FIRST AMENDED PETITION
______________________________________________________________________________

Respondents-Defendants, Floyd Bonner, Jr., Shelby County Sheriff and the Shelby County

Sheriff’s Office (“Respondents-Defendants”) file this memorandum in support of their motion to

dismiss the First Amended Petition. [ECF No. 50.]

BACKGROUND

Petitioners Favian Busby and Michael Edgington originally filed this action on May 20,

2020, seeking class certification of similarly situated pretrial detainees and requesting an order

from this Court requiring their release from the Shelby County Jail due to fears that they would

contact COVID-19. [ECF No. 1.] In response, Respondents-Defendants filed a motion to dismiss

and a response in opposition to Petitioners’ motion for class certification. [ECF No. 25.] This Court

denied Respondents-Defendants’ motion to dismiss and granted Petitioners’ motion for class

certification. [ECF No. 38.] Subsequently, Petitioners, Favian Busby, Michael Edgington, Russell

Leaks, and Joseph Nelson, filed an Amended Petition. [ECF No. 50.]

In said Amended Petition, Petitioners allege there are specific conditions at the Shelby

County Jail that make them susceptible to being infected by COVID-19. For example, they allege

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 2 of 14 PageID 1135
that during mealtimes, detainees are required to “line up inches apart.” [ECF No. 50, ¶ 32.] They further claim that they must “use and reuse” the same “high-touch” items, such as telephones and kiosks, but that the jail does not provide disinfectant or other cleaning supplies to sanitize these items. [ECF No. 50, ¶ 33.] They also allege that the jail does not test enough new arrestees for COVID-19 and worry that asymptomatic detainees could be infecting others. [ECF No. 50, ¶ 34.] Petitioners claim that by remaining in the Shelby County Jail, their constitutional rights secured under the Fourteenth Amendment are being violated. [ECF No. 50, ¶¶ 59-68.] They also claim that the Shelby County Jail is violating Title II of the ADA and Section 504 of the Rehabilitation Act. [ECF No. 50, ¶¶ 69-77.]
STANDARD To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Assuming they are true, a plaintiff’s allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. Pursuant to Rule 201(b) of the Federal Rules of Evidence, a court must take judicial notice of adjudicative facts if the fact is not subject to reasonable dispute and it can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned. State court proceedings, which are a matter of public record, meet Federal Rule of Evidence 201(b)’s criteria. Smith v. Maloon, 2010 U.S. Dist. LEXIS 69709, *16-18 (S.D. Ohio July 13, 2010). The Court may take judicial notice of these state court proceedings without converting a motion to dismiss into

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 3 of 14 PageID 1136
one for summary judgment. See Scarso v. Cuyahoga Cty. Dep’t of Human Service, 1990 U.S. App. LEXIS 19728 (6th Cir. Nov. 2, 1990) (“In determining the legal efficacy of plaintiff's complaint, the lower court properly took judicial notice of facts in the public record, specifically the records of state court proceedings.”) (citations omitted); U.S. v. Board of County Com’rs. of Hamilton Cty., 2010 U.S. Dist. LEXIS 2933 (S.D. Ohio Jan. 14, 2010) (taking judicial notice of state court complaint and public statements in consideration of a motion for judgment on the pleadings).
ARGUMENT A. STATE LAW REMEDIES THAT ARE A PART OF A STANDARD REVIEW PROCESS ARE
AVAILABLE FOR PETITIONERS-PLAINTIFFS BUT HAVE NOT BEEN EXHAUSTED. In their original motion to dismiss, Respondents-Defendants’ moved for dismissal on multiple grounds, including Petitioners-Plaintiffs’ failure to exhaust state law remedies. [ECF No. 25-1.] In denying Respondents-Defendants’ initial motion to dismiss, the Court held that Defendants failed “show that courts in Shelby County have procedures in place for the type of substantive due process grievances Plaintiffs bring to this Court.” [ECF No. 38, PageID 680.] The Court reasoned that an “inmate’s medical condition in the initial bail decision process pervades” Tennessee’ pretrial processing statutes. [ECF No. 38, PageID 681.] Thus, while the Court acknowledged that Tennessee courts regularly entertain motions concerning constitutional grievances, the Court found state law remedies were not available because it could not identify any Tennessee court that had considered a “pretrial inmate’s allegation that her substantive right to medical treatment under the Eighth Amendment was violated.” [ECF No. 38, PageID 682.] The exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Thus, state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 4 of 14 PageID 1137
State’s established appellate review process. Id. State prisoners do not have to invoke
“extraordinary” remedies when those remedies are alternatives to the standard review process. Id.
at 844. Thus, in determining whether state law remedies are available, the Court must examine
whether a standard review process exists by which a petitioner can seek relief. See, e.g., Fazzini
v. Ne.Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2009).
Admittedly, the COVID-19 pandemic presents a novel situation for both state and federal
courts alike. Just because the COVID-19 pandemic is novel, however, does not mean that
Tennessee does not have a standard review process by which pretrial detainees can challenge the
constitutionality of the conditions of their pretrial detention. As previously briefed by
Respondents-Defendants, challenging a pretrial detainee’s confinement status based upon
constitutional grounds is undoubtedly part of the standard review process allowed under Tennessee
law. The Tennessee Rules of Appellate Procedure provide a clear, well-established avenue for a
pretrial detainee to challenge the conditions of his or her release:
Before or after conviction the prosecution or defendant may obtain review of an order entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals granting, denying, setting or altering conditions of defendant's release. Before conviction, as a prerequisite to review, a written motion for the relief sought on review shall first be presented to the trial court. After conviction and after the action is pending on appeal, a written motion may be made either in the trial court in which judgment was entered or in the appellate court to which the appeal has been taken. On entry of an order granting or denying a motion for a change in bail or other conditions of release, the trial court shall state in writing the reasons for the action taken.
Tenn. R. App. P. 8. Pursuant to the standard review process established by Rule 8, pretrial
detainees can challenge the constitutionality of their pretrial detention and can obtain immediate review of the trial court’s orders on such challenges by Tennessee appellate courts.1
1 See e.g., State v. Burgins, 464 S.W.3d 298, 307-08 (Tenn. 2015) (considering on appeal pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure whether a pre-trial detainee’s due process rights as secured by the Fourteenth Amendment were violated when her bond was revoked); State v. Hill, 2019 Tenn. Crim. App. LEXIS 643, *6 (Tenn.

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 5 of 14 PageID 1138
Tennessee courts do not and cannot cherry pick which constitutional challenges they must consider when hearing challenges to the constitutionality of pretrial detention. O’Sullivan, 526 U.S. at 844 (“State courts, like federal courts, are obliged to enforce federal law.”). Pursuant to the standard review process established by Rule 8, pretrial defendants can and do challenge the constitutionality of their pretrial detention on various constitutional grounds. Even before the COVID-19 pandemic, Tennessee courts heard challenges that detention amounted to “punishment” in violation of a criminal defendant’s substantive and procedural due process rights. State v. Johnson, 980 S.W.2d 414, 421 (Tenn. Ct. App. 1998) (holding that “Pre-trial detention that is remedial as distinguished from punitive is permissible provided that the individual is afforded sufficient due process.”); State v. Hill, 2019 Tenn. Crim. App. LEXIS 643, *5-6 (Tenn. Crim. App. March 21, 2019) (considering whether the criminal defendant’s pretrial detention was remedial or punitive in violation of his substantive due process right to liberty). Notably, in determining whether a pretrial detainee’s right to be free from “punishment” is being or was violated, Tennessee courts’ considerations include (1) whether the detention served an alternative purpose, and (2) whether detention is excessive in relation to the purpose. State v. Coolidge, 915 S.W.2d 820, 824 (Tenn. 1995); see also, State v. Larsen, 2013 Tenn. Crim. App. LEXIS 19, *1617 (Tenn. Ct. App. Jan. 9, 2013); State v. Pennington, 1997 Tenn. Crim. App. LEXIS 1220, *9-10 (Tenn. Ct. App. Sept. 30, 1997). The Tennessee Supreme Court has further explained:
Crim. App. March 21, 2019) (considering on appeal pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure whether a pre-trial detainee’s due process rights as secured by the Fourteenth Amendment were violated based upon the trial court’s order concerning the conditions of the detainee’s pre-trial release); State v. Clouse, 2001 Tenn. Crim. App. LEXIS 504, *11 (Tenn. Crim. App. July 11, 2001) (considering whether pre-trial detainee’s constitutional right to be free from double jeopardy as secured by the Fifth Amendment was being violated); State v. Clark, 2010 Tenn. Crim. App. LEXIS 249, *14 (Tenn. Crim. App. March 18, 2010) (considering whether convicted defendant’s right to a speedy trial as secured by the Sixth Amendment was violated when trial court denied a motion to dismiss for denial of a speedy trial prior to trial); State v. Leavy, 1999 Tenn. Crim. App. LEXIS 1296, *7 (Tenn. Crim. App. Dec. 21, 1999) (considering whether convicted defendants’ pre-trial detention was “punitive”).

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 6 of 14 PageID 1139
[I]f a particular condition or restriction of…detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” 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. Doe v. Norris, 751 S.W.2d 834, 838-840 (Tenn. 1988) (citing Bell v. Wolfish, 441 U.S. 520 (1979)). Here, Petitioners’ claim in this case is exactly what the aforementioned Tennessee courts considered, namely that their pretrial custody amounts to “punishment” in violation of their Fourteenth Amendment rights. [ECF No. 50, ¶¶ 59-62.] While the COVID-19 pandemic may present new grounds to claim that their pretrial detention is “punitive,” constitutional challenges in Tennessee courts to pretrial detention as “punitive” are nothing new, nor “extraordinary.” In light of the well-established procedure in Tennessee law for pretrial detainees to challenge the constitutionality of their pretrial detention, numerous pretrial detainees have filed, and Shelby County Criminal Courts have considered, motions to eliminate and/or reduce bonds based upon challenges that conditions in the Shelby County Jail violate a pretrial detainee’s constitutional rights due to COVID-19. For example, attached are three separate motions filed by pretrial detainees in Shelby County Courts seeking release and/or a reduction in bond on grounds that the conditions created by COVID-19 in the Shelby County Jail violate their constitutional rights. Notably, in the case of State of Tennessee v. Roterrio Johnson, Case No. 20100946, Roterrio Johnson, specifically argued that denying him pretrial release “during the COVID-19 pandemic could result not only in the loss of [his] health, but also [his] life, reflecting deliberate indifference in violation of due process.”2 (Exhibit A). Similarly, in State of Tennessee v. Jaylon Faulkner,
2 In preparing his motion, Roterrio Johnson utilized a form, prepared by the Shelby County Public Defenders’ Office. Notably, the Shelby County Public Defenders Officer prepared said form motion and provided to pretrial detainees in Shelby County to complete and file at their discretion. The fact that the Shelby County Public Defenders’ Office

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 7 of 14 PageID 1140
Case No. C2002284, Jaylon Faulkner moved for release on the grounds that his pretrial detention violated both the Eighth and Fourteenth Amendments because of the COVID-19 “outbreak” in “prisons and jails.” (Exhibit C). In State of Tennessee v. Mark Noelker, Case No. M46350, the sentencing judge reduced Mr. Noelker’s bond from $1,000,000.00 to $75,000.00 after Mark Noelker argued his bond was excessive in light of the “Sheriff of Shelby County” being “desirous of reducing the number of inmates at the jail due to the COVID-19 pandemic.” (Exhibit B). These motions reveal that pretrial detainees are utilizing the standard review process as set forth by Rule 8 to challenge the constitutionality of their pretrial detention in light of COVID-19, and Shelby County courts are considering those challenges.3
Importantly, it is the petitioner who has the burden of showing exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The requirement that a habeas petitioner exhaust state-court remedies before seeking relief in federal court “protect[s] the state courts” opportunity to confront initially and resolve constitutional issues arising within their jurisdictions and to limit federal judicial interference in state adjudicatory processes.” Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir. 1981). A court must “abstain from the exercise of…jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state courts or by other state procedures available to the petitioner.” Id. A state prisoner’s federal habeas petition must be dismissed if the prisoner has not exhausted available state remedies concerning any of his federal claims. Coleman
prepared such a form, further proves that even the Shelby County Public Defenders’ Office recognizes that pursuant to the standard review process available under Tennessee law, Tennessee courts have and will consider constitutional challenges to pretrial detention due to the COVID-19 pandemic. 3 As previously addressed by Respondents-Defendants, the Tennessee Supreme Court ordered that as part of the standard review process, Tennessee courts must specifically consider the effects of COVID-19 in setting or eliminating bond. See In Re: COVID-19 Pandemic, ADM2020-00428 (Tenn. March 25, 2020) (ordering all judicial districts to implement plans to reduce the jail population due to the COVID-19 pandemic through “bond reductions or eliminations, deferred sentences, and suspended sentences….”); See also, In re: Covid-19 Pandemic, No. ADM202000428 (Tenn. March 13, 2020).

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 8 of 14 PageID 1141
v. Thompson, 501 U.S. 722, 731 (1991); Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013); Graham v. Snyder, 68 F. App’x 589, 590 (6th Cir. 2003). In fact, a district court must raise the exhaustion issue sua sponte when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen v. Perini, 424 F.2d 134, 138-39 (6th Cir. 1970).
Here, Petitioners have undoubtedly failed to exhaust state law remedies that are available pursuant to Tennessee’s standard review process. Accordingly, their claims must be dismissed as a matter of law.
B. PETITIONERS-PLAINTIFFS CHALLENGE THE CONDITIONS OF THEIR CONFINEMENT – NOT THE “FACT OR DURATION” OF THEIR CONFINEMENT. A habeas corpus petition under 28 U.S.C. § 2241 is typically “reserved for challenges to
the execution of a sentence, such as a computation of parole or sentencing credits....” Velasco v. Lamanna, 16 F. App’x 311, 314 (6th Cir. 2001) (citing Cohen v. United States, 593 F.2d 766, 77071 (6th Cir. 1979)); see Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004). Additionally, while the Sixth Circuit has long recognized that pretrial detainees may pursue habeas relief under § 2241, pretrial detainees can do so only in rare, “extraordinary” instances. Christian v. Wellington, 739 F.3d 294, 297 (6th Cir. 2014). In fact, the Sixth Circuit has approved consideration of a pretrial § 2241 petition only in three exceptional circumstances: (1) when the petitioner seeks a speedy trial, (2) when a petitioner seeks to avoid a second trial on double jeopardy grounds, and (3) when a petitioner faces prejudice from prior ineffective assistance of counsel and due process violations on retrial. Turner v. Tennessee, 858 F.2d 1201, 1204 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902, 109 S. Ct. 3208, 106 L. Ed. 2d 559 (1990); Atkins v. Michigan, 644 F.2d 543, 545 (6th Cir. 1981); Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir. 1981).

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Habeas corpus is never available to pre- or post-trial prisoners who complain about the conditions of confinement. See e.g., Nelson v. Campbell, 541 U.S. 637, 643 (2004); Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013); Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004). see also, Sanchez v. Dallas County, 2020 U.S. Dist. LEXIS 90667, *39 (N.D. Tex. May 22, 2020) (holding that a habeas petitioner was the improper vehicle for pre-trial detainees to seek release from jail due to COVID-19); Barrett v. Carvajal, 2020 U.S. Dist. LEXIS 84873 (N.D. Ohio May 14, 2020) (holding a complaint that deteriorating conditions in a prison due to COVID19 was not cognizable under § 2241).
Here, Petitioners make a plethora of complaints about the conditions of – not the fact of – their confinement. For example, they allege that during mealtimes, detainees are required to “line up inches apart,” that they have only been provided “one mask,” that they do not receive enough soap, that they must “use and reuse” the same “high-touch” items, such as telephones and kiosks, but that the jail does not provide disinfectant or other cleaning supplies to sanitize these items, that detainees are rarely allowed to clean their cells, that they receive only one set of clean clothes per week, that they must use “unwashed” towels wo wipe down surfaces, and that the jail does not test enough new arrestees for COVID-19. [ECF No. 50, ¶¶ 32-34.] Such allegations clearly concern the conditions of the Shelby County Jail, not the “fact” of Petitioners’ confinement. Whatever their conditions of confinement, they are not related to Petitioners’ “fact or duration” of their respective confinements. Thus, a habeas corpus petition under § 2241 is not the proper vehicle for Petitioners’ to present such claims or allegations.
C. IF PETITIONERS-PLAINTIFFS’ CLAIMS ARE COGNIZABLE, THEY MUST BE SUBJECT TO THE REQUIREMENTS FOR RELIEF OUTLINED WITHIN 18 U.S.C. § 3626. If Petitioners’ claims challenging their conditions of confinement were cognizable in
habeas (they are not), then the Prison Litigation Report Act’s (“PLRA”) requirements for prisoner

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release orders must apply. Santana v. United States, 98 F.3d 752, 756 (3d Cir. 1996); see also Blair-Bey v. Quick, 151 F.3d 1036, 1040-42 (D.C. Cir. 1998). “[I]t would defeat the purpose of the PLRA if a prisoner could evade its requirements by simply…joining it with a petition for habeas corpus.” See Blair-Bey, 151 F.3d at 1042.
A federal court may not enter a prisoner release order unless there has been a prior order “for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prison release order,” and respondent “has had a reasonable amount of time to comply with the previous court order[].” 18 U.S.C. § 3626(a)(3)(A). Moreover, only a threejudge court may enter a prison release order and can only do so after a prisoner files an appropriate request. 18 U.S.C. § 3626(3). The three-judge panel may enter such an order “only if the court finds by clear and convincing evidence that—(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 18 U.S.C. § 3626(3). Here, Petitioners should not be allowed to circumvent the PLRA’s unambiguous requirements to obtain release. Petitioners plainly complain about the current prison conditions of the Shelby County Jail. Such complaints fall squarely within the purview of the PLRA. Because Petitioners have failed to comply with the PLRA prior to seeking release, their petition must be dismissed.
D. PETITIONERS’ “UNCONSTITUTIONAL PUNISHMENT” CLAIM FAILS AS A MATTER OF LAW. Petitioners have improperly attempted to carve out a separate claim for unconstitutional
“punishment” in addition to seeking relief from alleged unconstitutional “conditions of confinement” at the Jail. [ECF No. 50, ¶¶ 59-68.] Fourteenth Amendment due process claims “are analyzed under the same rubric as Eighth Amendment claims brought by prisoners.” Richmond v. Huq, 885 F.3d 928, 938 (6th Cir. 2018); Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568

Case 2:20-cv-02359-SHL Document 78-1 Filed 06/30/20 Page 11 of 14 PageID 1144
(6th Cir. 2013); Cooper v. Montgomery Cty., 768 F. App’x. 385, 392 (6th Cir. 2019). Thus, in order to state a claim that prison conditions violate the Constitution, a pretrial detainee-plaintiff must allege that he has been subjected to deprivations so serious that he was deprived of the “minimal civilized measure of life’s necessities” and that jail officials acted wantonly, with deliberate indifference to his serious needs. Richmond v. Settles, 450 F. App’x 448, 454-55 (6th Cir. 2011); see also, Martin v. Warren Cty., 799 F. App’x 329 (6th Cir. 2020) (determining that a district court did not inappropriately apply the deliberate indifference standard to a pre-trial detainee’s failure to provide adequate medical care claim and confirming, “[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”); Cameron v. Bouchard, 2020 U.S. App. LEXIS 16741, *22 (6th Cir. May 26, 2020) (Bush, J., dissenting) (“In a deliberate indifference claim challenging the conditions of a prisoner’s confinement, the plaintiff must satisfy both the objective and subjective components of the Eighth Amendment inquiry. The same requirements apply to a pre-trial detainee’s due process rights under the Fourteenth Amendment.” (internal citations omitted) (emphasis added)); Taylor v. Madison Cty. Sheriff’s Dep’t, 2019 U.S. Dist. LEXIS 212614, *4 n.1 (W.D. Tenn. Dec. 10, 2019) (“Although a pretrial detainee’s claim regarding the conditions of his confinement is reviewed under the Fourteenth Amendment's due process clause, the standard is the same.”); Swain v. Junior, 2020 U.S. App. LEXIS 18689, *16 (11th Cir. June 15, 2020) (“Although the plaintiffs’ claim technically arises under the Fourteenth Amendment because they are pretrial detainees rather than convicted prisoners, it is “evaluated under the same standard as a prisoner's claim of inadequate care under the Eighth Amendment.”). Based upon the above, Petitioners’ claim that Respondents have acted in an unconstitutional manner by simply “continuing to detain” them, fails to state a claim. [ECF No. 50, ¶¶ 59-62.] Accordingly, Petitioners’ claim for “unconstitutional punishment”

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outlined within their “First Claim for Relief” must be dismissed. [Id.]. E. PETITIONERS HAVE FAILED TO PROVIDE SUFFICIENT FACTS TO SHOW THAT THEY HAVE SUFFERED DISCRIMINATION IN VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT (“ADA”) OR SECTION 504 OF THE REHABILITATION ACT (“RA”). Title II of the ADA prohibits a public entity from discriminating against disabled
individuals and states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, Section 504 of the RA protects any “otherwise qualified individual” from “be[ing] excluded from the participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination” under specified programs or activities “solely by reason of her or his disability.” 29 U.S.C. § 794(a).
As a threshold matter, district courts within the Sixth Circuit have recently explained that alleged violations of the ADA are “inappropriate for a habeas corpus case.” Shaholli v. DeangeloKipp, 2020 U.S. Dist. LEXIS 92014, *27 (E.D. Mich. May 27, 2020) (referencing Meyers v. Hedgpeth, 2014 U.S. Dist. LEXIS 67198, (N.D. Cal. May 15, 2014) (“The ADA is not a federal constitutional provision or guarantee.”); see also Cometa v. Warden, 2020 U.S. Dist. LEXIS 33630, *4 (E.D. Ky. Feb. 27, 2020) (“[T]he Court will not address the merits of these [Eighth Amendment and ADA] claims because they are not proper in a habeas petition filed pursuant to 28 U.S.C. § 2241.”)). Thus, Petitioners’ ADA/RA theories must fail.
Notwithstanding, “[i]nmates alleging claims under the ADA and the RA must show prison officials took the challenged actions because of the inmate’s alleged disability.” Finfrock v. Mohr, 2019 U.S. Dist. LEXIS 192024 (N.D. Ohio Nov. 5, 2019) (citing Clayton v. Michigan Dep’t of Corr., 2017 U.S. App. LEXIS 27251, **5-6 (6th Cir. Aug. 21, 2017) (explaining that “even

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accepting as true the inmate’s allegation that prison officials denied a request to transfer him to a facility with inpatient mental health treatment, he set forth no allegations to suggest that this denial was due to his HIV status.”)). Here, Petitioners have outlined the dangers of COVID-19 and have asserted that Respondents have generally failed to take appropriate measures to protect all detainees. [See ECF No. 50.] However, Petitioners have failed to allege sufficient facts to establish that Respondents have failed to provide Petitioners with any reasonable accommodations – other than immediate release from Jail4 – or that any specific action was taken against PetitionersPlaintiffs because of their proposed disabilities. Accordingly, Petitioners’ ADA and RA claims fail as a matter of law.
CONCLUSION Based upon the above and upon the record as a whole, this Court should dismiss this matter in its entirety.
Respectfully submitted, PENTECOST, GLENN & MAULDIN, PLLC By: s/Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995
4 Petitioners’ requested relief of wholesale release would undoubtedly fundamentally alter the nature of Respondents’ jail services. See 28 C.F.R. § 35.130(b)(7).

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AND

Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100

Attorneys for Respondents-Defendants

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document was served via ECF upon the following:

Amreeta Mathai Andrea Woods ACLU 125 Broad Street New York, NY 10004

Jonathan Silberstein-Loeb Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019

Brice Moffatt Timmons Black, Mclaren, Jones, Ryland & Griffee, P.C. 530 Oak Court Drive, Ste. 360 Memphis, TN 38117

Zoe Brennan-Krohn ACLU 39 Drumm Street San Francisco, CA 94111

Thomas Hauser Castelli Stella Marie Yarbrough ACLU 210 25th Avenue N. P.O. Box 120160 Nashville, TN 37212

Maria V. Morris
ACLU 915 15th St. NW Ste 7th Floor
Washington, DC 20005

on or before the filing date thereof.

DATE: This the day 30th of June, 2020.

By: s/Nathan D. Tilly James I. Pentecost Nathan D. Tilly J. Austin Stokes

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EXHIBIT “A”

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 Case 2:20-cv-02359-SHL Document 27 Filed 05/26/20 Page 1 of 21 PageID 346

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY, ET AL.,

)

)

Plaintiff,

)

)

vs.

)

No.: 2:20-CV-02359-SHL

)

FLOYD BONNER, JR., ET AL.,

)

)

Defendants.

)

______________________________________________________________________________

RESPONDENTS-DEFENDANTS’ RESPONSE IN OPPOSITION TO PETITIONERSPLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
______________________________________________________________________________

Respondents-Defendants, Floyd Bonner, Jr., Shelby County Sheriff and the Shelby County

Sheriff’s Office (“Respondents”), by and through their undersigned counsel, respond in opposition

to Petitioners-Plaintiffs’ (“Petitioners”) Motion for Temporary Restraining Order (ECF No. 2).1

BACKGROUND

Petitioners are Tennessee state pretrial detainees being held by the Shelby County Sheriff’s

Office (“SCSO”) in the Shelby County Jail (“Jail”). (ECF No. 1, ¶¶ 7-8). Petitioners filed a petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2241, asking this Court to order them and a

class/subclass of other detainees to be released from the Jail because of fear that they may contact

COVID-19. (ECF No. 1). Petitioners have also filed a motion for temporary restraining order

seeking, among other things, “immediate release from incarceration,” and for Respondents to

produce within twelve (12) hours of the entry of the Court’s order a list of all Class and Subclass

1 In doing, Respondents rely upon all filings by Respondents, the “Declaration of Kirk Fields,” the “Declaration of the Honorable Amy P. Weirich,” the “Declaration of the Honorable John W. Campbell,” the “Declaration of the Honorable Christopher Craft,” the “Declaration of Bruce Randolph, M.D., M.P.H.,” the “Declaration of Dr. Donna Randolph,” and the entire record of this cause.

Case 2:20-cv-02359-SHL Document 27 Filed 05/26/20 Page 2 of 21 PageID 347

members as proposed by Petitioners. (ECF No. 2, ¶ 2). Petitioners further propose that within

twenty-four (24) hours, Respondents release all detainees “who are incarcerated solely due to their

inability to afford a financial condition of release, or solely due to an alleged technical violation

of probation or parole,” and to “provide a list…noting the basis for any objections to the release

of the remaining Class and Subclass members.” (ECF No. 2, ¶¶ 3-4). They recommend that

Respondents be allowed the opportunity to object to the release of specific detainees based solely

upon “evidence of a credible risk of pretrial flight or danger to others.” (ECF No. 2, ¶ 4).

A. APPLICABLE POLICIES AND STANDARD OPERATING PROCEDURES

At all times relevant, the Jail has maintained certification by the Tennessee Corrections

Institute, as well as accreditation by the American Correctional Association and the National

Commission on Correctional Health Care. At all relevant times, Respondent adhered to and trained

its personnel on SCSO’s policies and standard operating procedures concerning “Inmate Medical

and Mental Healthcare,” “Inmate/Detainee Sick Call,” “Inmate/Detainee Grievance Process,”

“Inmates Medical Rights,” “Inmates/Detainees Rights,” “Exposure Control Plan Communicable

Disease,” “Communicable Disease Response,” “Infection Control Program,” “Inmate Medical

Screening,” and “Inmate Clothing, Bedding, Linen Supplies and Hair Care.”

B.

RESPONSIBILITY OF MEDICAL TREATMENT

Shelby County contracts with WellPath to provide inmate medical care at its corrections

facilities, including the Shelby County Jail. WellPath personnel are not employees of the SCSO.

The contract with WellPath is administered by the Shelby County Health Department. The Shelby

County Health Department assigns full-time on-site contract monitors at the Shelby County Jail to

ensure WellPath meets it contractual obligations and provides appropriate inmate medical care.

Per the contract, the Director of Nursing for WellPath oversees all medical care for SCSO facilities

Case 2:20-cv-02359-SHL Document 27 Filed 05/26/20 Page 3 of 21 PageID 348
and reports directly to the Shelby County Health Department. C. SCSO’S RESPONSE TO COVID-19 In February of 2020, the SCSO began planning and in March of 2020, the SCSO began
implementing procedures in addition to its standard operating procedures and policies to combat and prevent the spread of COVID-19 in the Jail, which have evolved on an ongoing basis. In undertaking such efforts, the SCSO has enhanced its pre-booking screening process for all of its facilities, including the Jail. As such, no detainee is allowed inside a SCSO facility without first being questioned and screened by a nurse. As part of the enhanced process, the nurse evaluates the detainee, and the detainee’s body temperature is taken. If the individual exhibits COVID-19 symptoms, he must undergo further testing before being admitted into the facility.
Upon entrance of a positive/possible positive COVID-19 detainee, all movement in the intake area ceases. If it is determined that the detainee is COVID-19 positive, he must proceed to a separate tent in the sally-port for isolation. All Jail staff in the tent must wear a hazmat suits, gloves, and masks before entering the tent. Officers in the tent then undertake initial intake/processing of the COVID-19 positive individual, ensuring that the inmate remains isolated from all other staff and detainees. Medical staff must also make a determination as to whether the inmate should be hospitalized. If hospitalization is unnecessary, the inmate is escorted to an isolation cell away from other inmates or staff. Contact between any known COVID-19 positive detainee and other inmates is strictly prohibited. When leaving the processing area, staff must remove the hazmat suit, gloves, and mask for proper disposal.
Additionally, upon intake, all inmates are immediately provided a facial mask free of charge and are instructed to wear the mask while in the facility. Inmates are also instructed on general CDC guidelines concerning social distancing and other best practices to prevent the spread

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of COVID-19. Any inmates who test positive for COVID-19 are immediately isolated from all other detainees and housed in a medical cell. Other inmates exposed to an inmate who tests positive are also immediately quarantined. Inmates remain in isolation for at least 21-days, if not longer, depending upon their symptoms and whether they continue to test positive for COVID-19.
To reinforce the exercise of best practices to prevent and/or mitigate the spread, CDC guidance posters are displayed throughout the Jail. These posters provide inmates guidance on best practices to mitigate the spread of COVID-19. Additionally, the SCSO televises an informative video on all televisions throughout the Jail which similarly provides inmates information on preventing and mitigating the spread of COVID-19.
To that extent, SCSO has also limited movement throughout the Jail and has prohibited group gatherings. For example, inmates must generally remain in their own housing unit at all times and cannot generally traverse to and from different areas of the Jail.
The SCSO has also taken steps to prevent the spread by or through its staff. The SCSO has directed its employees to comply with all CDC guidelines concerning combating and preventing COVID-19, including directing staff to practice social distancing by remaining six (6) feet apart at all possible times and to wash and sanitize their hands regularly. The SCSO strictly prohibits any staff members exhibiting symptoms of COVID-19 from coming to work or entering the facility. The SCSO has also strongly discouraged employees from nonessential and personal travel and has set a moratorium on all vacation requests and approvals for out-of-town travel purposes until at least May 31, 2020. Additionally, since March 16, 2020, SCSO employees have been allowed to access the facility only through the main entrance of the jail and are no longer allowed to enter the facility through the annex door. All employees must undergo a medical screening every day prior to entering the facility. If an employee exhibits any COVID-19 symptoms, the

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employee is prohibited from entering the facility. SCSO has also restricted access in and out of the facility by all employees except for members of management with the Jail Division.
The SCSO has taken further steps to prohibit non-SCSO employees from entering the Jail. Since March 27, 2020, the SCSO has suspended all in-person visitations. Likewise, Jail volunteers are no longer allowed access, and attorneys who wish to visit with their clients in the Jail must do so via phone, teleconference, or video conference. The SCSO has also suspended all non-essential vendors from coming into the Jail except in emergency situations and has limited commissary deliveries to only one day per week.
To further combat and prevent the spread, the SCSO requires all individuals in the Jail to wear a facial mask at all times. Any staff who fail to follow said directive are subject to disciplinary action, and anyone who is not an employee who refuses to wear a facial mask is denied entry into the facility. Staff who observe an inmate not properly wearing a mask immediately instruct the inmate to put his facial mask on.
Per the general operating policies and procedures, all inmates have access to medical care and can request medical care at any time. In light of COVID-19, inmates are not charged for medical examination if they raise concerns that they are suffering from COVID-related symptoms.
The SCSO has also implemented more aggressive cleaning methods within the Jail. Officers disinfect every surface throughout the Jail with BioVex daily. The walking tunnel from the Jail to the courtrooms is also thoroughly cleaned and disinfected daily. Additionally, cleaning supplies are provided for inmates to utilize prior to the use of phones, kiosks, and showers. All inmate facial masks are disinfected with BioVex every day immediately after lockdown, and at least once a week, the masks are thoroughly washed by laundry staff.
The SCSO provides all inmates access to hand soap and other hygiene products free of

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charge. Any inmate may ask any officer for more soap or hygiene products at any time, and it is immediately provided to the inmate. The Jail also provides inmates access to disposable gloves in further effort to prevent the spread of COVID-19.
If there is reason to believe a group of detainees in a pod might have been exposed to COVID-19, the Jail will place the entire pod on quarantine. Inmates in a quarantined pod cannot leave the pod or traverse through other areas of the facility. Medical staff at the Jail regularly monitor and take the bodily temperatures of all such quarantined detainees multiple times a day. Quarantined pods remain on quarantine for a minimum of fourteen (14) days and until medical staff determine that is reasonably safe to take the pod off of quarantine.
Importantly, in implementing procedures to combat and prevent the spread of COVID-19, the SCSO has worked closely with its medical contract partner, WellPath, as well as the Shelby County Health Department. The senior leadership in the SCSO, Shelby County Health Department, and WellPath meet two times per week to obtain updates concerning the COVID-19 pandemic as it relates specifically to the SCSO’s correctional facilities and to discuss what further steps, if any, the SCSO can take to prevent the spread of COVID-19. The SCSO has also implemented and follows specific guidelines and procedures recommended by WellPath.
The maximum capacity of the Shelby County Jail is 2,800. The SCSO detains criminal defendants as ordered by Tennessee Criminal and General Sessions Judges. Thus, the SCSO has control whatsoever over the total number of detainees who are housed in the Jail. Notwithstanding, the SCSO has worked with the District Attorney’s Office and the Public Defender’s Office to lower the Jail population. Even before the pandemic, Sheriff Bonner hired Mischelle Best to serve as the SCSO’s Expeditor. In her position as Expeditor, Best works with inmates, prosecutors, public defenders, and other outside services to identify detainees with minor charges and/or

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medical conditions to expedite their cases and possible releases. Since the COVID-19 pandemic began, the SCSO has increased its efforts to reduce the Jail
population. During the pandemic, the SCSO has coordinated with law enforcement agencies and requested that, in light of COVID-19, they issue misdemeanor summonses instead of making physical arrests, when possible. The SCSO has received tremendous cooperation from those agencies. Additionally, the SCSO, the District Attorney’s Office, the Public Defender’s Office, and other agencies have worked together in accelerating the cases for detainees with serious medical issues that are sixty (60) years and older, and those with misdemeanor or Level D & E felonies, in an effort to get those detainees out of Jail quickly. Further, the District Attorney General has aggressively worked towards bringing those criminal cases to a resolution to obtain the release of even more detainees.
Notably, the population in the Jail has significantly declined since the initial COVID-19 outbreak. On January 1, 2020, the population at the Shelby County Jail was over 2,500. On April 1, 2020, the population of the Shelby County Jail was 2,095. As of today, the population at the Shelby County Jail has decreased to 1,877.
Since March, 160 inmates at the Shelby County Jail have tested positive for COVID-19, and 154 of those inmates have fully recovered. The Jail currently has only four (4) detainees who are medically isolated from all other detainees while they recover from the virus. None of those individuals require hospitalization.
D. PLAINTIFFS-PETITIONERS i. Michael Edgington (“Edgington”) Petitioner Edgington is being detained on two (2) Class A felony charges involving conspiracy to manufacture/deliver/sell controlled substance (cocaine) and trafficking high

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amounts of cocaine. Edgington is one (1) of thirty-eight (38) individuals indicted in a trafficking case and is accused of distributing a controlled substance within a school zone. Edgington’s bond was set at $500,000.00. Edgington has not requested a bond reduction.
Edgington is currently housed on the third floor of the Jail. His assigned pod has the capacity to house forty-three (43) individuals. Thirty-eight (38) individuals are currently housed in said pod. No individual housed within Edgington’s assigned pod has tested positive for COVID19. Edgington does not have an assigned cell mate currently. Laundry services are available to the individuals assigned within Edgington’s assigned pod at least two (2) times per week.
ii. Favian Busby (“Busby”) Petitioner Busby is being detained on numerous criminal charges including involving manufacture/delivery/sale of cocaine, ecstasy, methamphetamine, oxycodone, alprazolam, marijuana, and other controlled substances and being a felon in possession of a firearm. Busby’s bond was set at $239,000.00 in relation to the drug charges and $25,000.00 in relation to the felon in possession charge. Busby has not requested a bond reduction. Busby is currently assigned to a pod in the Jail Annex that has the capacity to house sixtytwo (62) individuals. Forty-one (41) individuals are currently housed in said pod. Busby does not have an assigned cell mate and has access to a washer, dryer, and gym within his pod, whereby he maintains the ability to launder his personal items at his discretion.
STANDARD A temporary restraining order “is an extraordinary remedy designed for the limited purpose of preserving the status quo pending further proceedings on the merits….” Cross v. Mnuchin, 2019 U.S. Dist. LEXIS 171703, *1 (W.D. Tenn. Oct. 3, 2019). “The standard for determining whether to grant a temporary restraining order is the same as the standard for determining whether to grant

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a preliminary injunction.” Am. Home Shield Corp. v. Specter, 2019 U.S. Dist. LEXIS 178465, *2

(W.D. Tenn. April 3, 2019). “Generally, the plaintiff bears the burden of establishing his

entitlement to a preliminary injunction.” Id. (citing Jones v. Caruso, 569 F.3d 258, 265 (6th Cir.

2009)). Accordingly, when evaluating the merits of a motion for preliminary injunction, the Court

must balance: “(1) whether the movant is likely to succeed on the merits; (2) whether the movant

will suffer irreparable injury in the absence of an injunction; (3) whether the injunction will cause

substantial harm to others; and (4) whether the injunction will serve the public interest.” Id. (citing

Bradfield v. Perry, 2017 U.S. App. LEXIS 24358, at *2-3 (6th Cir. Nov. 30, 2017)).

LAW & ARGUMENT

A.

PETITIONERS ARE NOT LIKELY TO SUCCEED ON THE MERITS.

The availability of a TRO or preliminary injunction is inextricably intertwined with the

merits of the underlying claim. For this reason, one of the principal factors in determining a

plaintiff’s entitlement to relief is the likelihood that the plaintiff will succeed on the merits of his

underlying claims. See United States v. Contents of Accounts, 629 F.3d 601, 606 (6th Cir. 2011).

Accordingly, a basic showing necessary for obtaining a temporary restraining order is that there

must be some relationship between the conduct giving rise to the claims in the complaint and the

injury sought to be prevented. See Colvin v. Caruso, 605 F.3d 282, 299-300 (6th Cir. 2010);

Beasley v. Westbrooks, 2017 U.S. Dist. LEXIS 152103, *5 (M.D. Tenn. Sept. 9, 2017).

i. Petitioners are not likely to succeed on the merits because their habeas petition is improper.

The Sixth Circuit has held that when the proponent of the injunctive relief has no chance

of success on the merits of the claim, the Court may dismiss the motion without considering the

other three factors. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).

Failure to do so is reversible error. See id.; Sandison v. Michigan High School Athletic Association,

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64 F.3d 1026, 1037 (6th Cir. 1995). Here, as set forth in Respondents-Defendants’ motion to dismiss, the petition is improper because (1) Petitioners failed to exhaust their state law remedies prior to bringing suit, and (2) a habeas corpus petition under 28 U.S.C. § 2241 is not the proper vehicle for a prisoner to challenge his conditions of confinement.
Moreover, any attempt by Petitioners to claim state law remedies are unavailable would be without merit. In-person court proceedings necessary to protect constitutional rights of criminal defendants including bond-related matters and plea agreements for incarcerated individuals have not been suspended in Tennessee. Indeed, Criminal Courts in Shelby County have remained open and have regularly heard motions, petitions, and requests from pre-trial detainees to be released from incarceration and/or to modify their bond amounts due to the COVID-19 pandemic. Further, pursuant to Tennessee law, criminal judges possess the authority and discretion to release a pretrial detainee under certain conditions, including an inmate’s medical condition and/or vulnerability to contracting a serious medical condition while in Jail, if they believe in light of the circumstances such release is appropriate.
Because Petitioners’ petition is improper, Petitioners cannot succeed on the merits, and as a result, this Court should deny Petitioners’ Motion for a temporary restraining order.
ii. Petitioners are not likely to succeed on the merits because the Shelby County Sheriff’s Office has not acted with deliberate indifference.
“To show a likelihood of prevailing on the merits, the [party seeking the injunction] must show the likely existence of a constitutional violation causally related to the result sought to be enjoined.” L.P. Acquisition Co. v. Tyson, 772 F.2d 201, 205 (6th Cir. 1985) (quoting MartinMarietta Corp. v. Bendix Corp., 690 F.2d 558, 565 (6th Cir. 1982)). Here, Petitioners bring their claims against the Shelby County Sheriff’s Office and Sheriff Floyd Bonner, Jr., in his official capacity. “Official capacity suits…‘generally represent only another way of pleading an action

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against an entity of which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165-68 (1985). To show a constitutional violation against a governmental entity, a plaintiff must prove that some “policy or custom” caused the alleged constitutional deprivation. Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 (1978).
Petitioners allege that their Fourteenth Amendment rights are being violated due to the conditions of their confinement. (ECF No. 1, ¶¶ 52-61). The Fourteenth Amendment’s due process clause protects pretrial detainees from cruel and unusual punishments. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Fourteenth Amendment due process claims “are analyzed under the same rubric as Eighth Amendment claims brought by prisoners.” Richmond v. Huq, 885 F.3d 928, 938 (6th Cir. 2018); Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013); Cooper v. Montgomery Cty., 768 F. App’x. 385, 392 (6th Cir. 2019). In order to state a claim that prison conditions violate the Constitution, a pretrial detainee-plaintiff must allege that he has been subjected to deprivations so serious that he was deprived of the “minimal civilized measure of life’s necessities” and that jail officials acted wantonly, with deliberate indifference to his serious needs. Richmond v. Settles, 450 F. App’x 448, 454-55 (6th Cir. 2011). Allegations of temporary inconveniences are insufficient to state a claim. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001). The Supreme Court has noted that jail conditions may be “restrictive and even harsh,” and the “Constitution does not mandate comfortable prisons.” Rhodes v Chapman, 452 US 337, 349 (1981).
To raise a cognizable constitutional claim for deliberate indifference to an inmate’s safety, an inmate must make a two-part showing: (1) the alleged mistreatment was objectively serious; and (2) the defendant subjectively ignored the risk to the inmate’s safety. Farmer v Brennan, 511 U.S. 825, 834 (1994). In the context of conditions of confinement claims, only “extreme

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deprivations” can be characterized as punishment prohibited by the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992).
In regard to the second element discussed above, the United States Supreme Court has held that in order for a plaintiff to be successful in his deliberate indifference claim, he must show the prison official possessed a state of mind “more blameworthy than negligence.” Id. The Farmer Court also noted that “acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding the risk.” Id. Importantly, the reckless standard is not one of objectivity. Id at 837-38. Instead, a plaintiff must show the prison officer “consciously disregarded” a substantial risk of harm. Id at 839. The Sixth Circuit has likewise acknowledged that a plaintiff must show defendant subjectively ignored a risk that was objectively serious. Leary v Livingston County, 528 F.3d 438, 442 (6th Cir. 2008). The prison official’s state of mind must evince “deliberateness tantamount to intent to punish.” Miller v. Calhoun Cty., 408 F.3d 803, 812-13 (6th Cir. 2005) (citing Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994)). “[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838. Deliberate indifference is more than “mere negligence.” Bowman v Corrections Corp of Am, 350 F.3d 537, 544 (6th Cir. 2003). It is tantamount to a finding of criminal recklessness. Farmer, 511 U.S. at 837. In the prison setting, it requires a showing “approaching total unconcern for the prisoner’s welfare.” Rosario v Brown, 670 F.3d 816, 821 (7th Cir. 2012).
In Money v. Pritzker, the Northern District of Illinois recently considered similar allegations when it determined that the petitioners had no chance of success:
Clearly Defendants are trying, very hard, to protect inmates against the virus and to treat those who have contracted it. The record simply does not support any

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suggestion that Defendants have turned the kind of blind eye and deaf ear to a known problem that would indicate “total unconcern” for the inmates’ welfare. Rosario, 670 F3d at 821. Nor would the record support any claim that Defendants lack a plan for implementing exactly what Plaintiffs have requested – individualized decisions on release through a panoply of vehicles guided by administrative discretion. It may not be the plan that the Court would choose, if it were sufficiently informed to offer an opinion on the subject. But the Eighth Amendment does not afford litigants and courts an avenue for de novo review of the decisions of prison officials, and the actions of Defendants here in the face of the COVID-19 easily pass constitutional muster. Money v. Pritzker, 2020 U.S. Dist. LEXIS 63599 at *18 (N.D. Ill. Apr. 10, 2020). As outlined above, Respondents have adhered to and trained SCSO personnel on numerous policies and operating procedures including, but not limited to, “Inmate Medical and Mental Healthcare,” “Inmate/Detainee Sick Call,” “Inmate/Detainee Grievance Process,” “Inmates Medical Rights,” “Inmates/Detainees Rights,” “Exposure Control Plan Communicable Disease,” “Communicable Disease Response,” “Infection Control Program,” “Inmate Medical Screening,” and “Inmate Clothing, Bedding, Linen Supplies and Hair Care.” Additionally, Respondents have undertaken numerous measures to combat and prevent the spread of COVID-19 in the Jail including, but not limited to, enhancing detainee intake screenings, encouraging social distancing, minimizing movement in and around the jail, requiring all employees and inmates to wear masks, providing disinfectants through the facility for use by employees and inmates alike, enhancing cleaning procedures throughout the jail, suspending in-person visitations, informing inmates on best practices to prevent the spread of COVID-19, quarantining inmates who have come in contact with COVID-19 positively tested inmates, isolating inmates who have tested positive for COVID19, and implementing and following ever changing CDC guidelines concerning the prevention and mitigation of the spread of COVID-19. Said policies, protocols, and measures meet the community standard of medical care in a correctional setting, have successfully mitigated its spread, and have created a safe environment for detainees/inmates to reside in while incarcerated in the Jail in light

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of the current COVID-19 pandemic. Accordingly, Petitioners are not likely to succeed on the

merits because they have not and cannot establish that the Shelby County Sheriff’s Office has

acted with deliberate indifference.

iii. Petitioners are not likely to succeed on the merits because the Shelby County Sheriff’s Office has not discriminated against Plaintiffs-Petitioners and/or any proposed Class/Subclass members.

Under the Americans with Disabilities Act (“ADA”), a disabled individual who otherwise

is qualified may not be excluded from participating in, denied the benefits of, or subjected to

discrimination under, a public program, because of the individual’s disability. 42 U.S.C. § 12132.

Under the Rehabilitation Act (“RA”), an individual may not be denied access to or discriminated

against with respect to a federally-funded program or activity “solely by reason of” the individual’s

disability. 29 U.S.C. § 794(a). “Inmates alleging claims under the ADA and the RA must show

prison officials took the challenged actions because of the inmate’s alleged disability.” Finfrock

v. Mohr, 2019 U.S. Dist. LEXIS 192024 (N.D. Ohio Nov. 5, 2019) (emphasis added)).

Within their Petition, Petitioners have outlined the dangers of COVID-19 and have asserted

that Respondents have failed to take appropriate measures to mitigate its spread and to protect all

detainees/inmates incarcerated within the Jail. (See ECF No. 1). However, Petitioners have failed

to allege sufficient facts, much less offered substantive evidence, to establish that any of

Respondents’ officials took any specific actions against Petitioners because of their proposed

disabilities. Accordingly, Petitioners are not likely to succeed on the merits because they have not

and cannot establish that Respondents discriminated against them in violation of the ADA or RA.

B.

PETITIONERS CANNOT ESTABLISH IRREPARABLE HARM.

In order to obtain an injunction, a “plaintiff must demonstrate, by clear and convincing

evidence, actual irreparable harm or the existence of an actual threat of injury.” Patio Enclosures,

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Inc. v. Herbst, 39 Fed. App’x 964, 969 (6th Cir. 2002) (internal punctuation omitted). The harm

must be actual and imminent, not speculative or unsubstantiated. See Abney v. Amgen, Inc., 443

F.3d 540, 552 (6th Cir. 2006). Here, neither Petitioner claims to have COVID-19. Further, neither

Petitioner claims that they even have contact with anyone who is positive for COVID-19. They

simply assume that they could be in contact with other detainees with COVID-19. Mere

assumptions do not meet the clear and convincing standard.

Furthermore, every detainee in the Shelby County Jail is confined pursuant to a court order

or judicial findings justifying detention. Pursuant to Tennessee law, the Sheriff may not and cannot

release them. Only a judge can do that. Since the outbreak of COVID-19, the Judges in Shelby

County, with the assistance of the SCSO, the Shelby County District Attorney’s Office, the Public

Defender’s Office, and other agencies, have worked together to expedite the release of detainees,

including medically vulnerable detainees. Neither the SCSO, nor the local judiciary is ignoring

the risks posed by COVID-19. Petitioners have simply elected to forego their state court remedies

entirely in order to seek an emergency injunction from federal court. Because Petitioners have

available remedies and because the SCSO, along with numerous other local agencies, are actively

engaged in the preventing the spread of COVID-19, Petitioners have not and will not suffer

irreparable harm in the absence of an injunction.

C.

PETITIONERS’ REQUESTED RELIEF COULD CAUSE SUBSTANTIAL HARM TO OTHERS

AND WOULD BE DETRIMENTAL TO THE PUBLIC INTEREST.

i. Ordering the categorical release of the proposed detainees is detrimental to the public interest.

Ordering categorical release of the proposed detainees, with no regard for their risk to

society upon release, would be detrimental to the public interest. The named Petitioners in this

case are both being held on serious felony charges. Edgington is being detained on two (2) Class

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A felony charges involving conspiracy to manufacture/deliver/sell controlled substance (cocaine) and trafficking high amounts of cocaine. Similarly, Busby is being detained on multiple criminal charges, including Class B felonies, involving manufacture/delivery/sale of cocaine, ecstasy, methamphetamine, oxycodone, alprazolam, marijuana, and other controlled substances, and being a felon in possession of a firearm. The proposed class likewise is in no way limited by the seriousness of the proposed class members’ pending criminal charges.
Tennessee law provides that Tennessee courts must consider numerous factors in determining whether a pretrial detainee should be released and whether and for what amount bond should be set:
(1) The defendant’s length of residence in the community; (2) The defendant’s employment status and history, and financial condition; (3) The defendant’s family ties and relationships; (4) The defendant’s reputation, character and mental condition; (5) The defendant’s prior criminal record, including prior releases on recognizance or bail; (6) The identity of responsible members of the community who will vouch for defendant's reliability; (7) The nature of the offense and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and (8) Any other factors indicating the defendant’s ties to the community or bearing on the risk of willful failure to appear. Tenn. Code Ann. § 40-11-115(b). A court must carefully consider these factors when deciding whether “a release will reasonably assure the appearance of the person as required.” Id. Absent a showing that conditions on a release on recognizance will reasonably assure the appearance of the defendant as required, the magistrate should require bail. Tenn. Code Ann. § 40-11-117. Thus, Tennessee law provides that judges must make a specific, individualized assessment of a detainee’s flight risk and danger to society in setting their conditions of confinement or conditions of release. This Court should presume that Petitioners, as well as any other potential petitionersplaintiffs, are being detained for a good reason, as state judicial officers have conducted individual assessments of them and applied statutory factors in order to set their respective bonds accordingly.

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A federal court usurping the state courts’ thorough assessment in determining conditions of release certainly goes against the public interest.
ii. Ordering the categorical release of the proposed detainees violates the rights of victims of violent crimes as secured by the Tennessee Constitution.
Over the past few decades, many states have amended their constitutions and passed laws affording victims various rights during criminal proceedings, including the right to fair and compassionate treatment, the right to be kept informed of the proceeding, and many others. See Payton v. State, 266 So. 3d 630, 640-641 (Miss. 2019) (collecting cases). Tennessee is no exception. In fact, the Tennessee Constitution provides to the victims of crimes certain basic constitutional rights. Tenn. Const. art. I § 35. The applicable constitutional provision sets out eight specific rights for victims, including the right to “[t]he right to be heard, when relevant, at all critical stages of the criminal justice process as defined by the General Assembly,” “the right to be informed of all proceedings, and of the release, transfer or escape of the accused or convicted person,” and “[t]he right to be present at all proceedings where the defendant has the right to be present.” Id.; see also Tenn. Code Ann. §§ 40-38-101 to 40-38-117; State v. Mutory, 581 S.W.3d 741, 749 (Tenn. 2019).
By seeking the release of unknown detainees via a temporary restraining order in federal court, Petitioners attempt to avoid the rights of victims as protected by the Tennessee Constitution. No victims of the potential class members have been informed of this proceeding and have not had the opportunity to appear. Indeed, pursuant to the rights afforded victims under the Tennessee Constitution, failure to allow victims of the proposed class a voice prior to releasing the proposed class members potentially violates Rule 19 of the Federal Rules of Civil Procedure (requiring the joinder of parties who claim an interest relating the subject of the action when disposing of the action in the person’s absence would impair or impede the person’s ability to protect the interest).

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Moreover, releasing said class members without any heed to the rights of victims as protected under the Tennessee Constitution certainly goes against the public interest in protecting the rights of victims.
iii. Ordering the categorical release of the proposed detainees violates federalism and the separation of powers.
Given the extraordinary nature of the injunctive relief that Petitioners seek, the Court should abstain pursuant to Rizzo v. Goode, 423 U.S. 362 (1976), where the Supreme Court instructed that to obtain injunctive relief on a matter traditionally reserved to the discretion of a state or local government agency, a plaintiff must overcome the steep hurdle set by “the wellestablished rule that the Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs.’” Id. at 378-79. In such cases, federal courts are to issue injunctions “sparingly, and only in a clear and plain case.” Id. at 378.
The considerations of federalism and comity underlying Rizzo weigh especially heavily when considering the administration of a corrections facilities. Federal courts should be hesitant to direct states how to operate their state facilities because doing so goes against the public interest in allowing the state legislative and executive branches to control their operation. Bell v. Wolfish, 441 U.S. 520, 548 (1979). Indeed, “the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.” Id. Courts must accord prison administrators “wide-ranging deference in the adoption and execution of policies and practices.” Ward v. Dyke, 58 F.3d 271, 273 (6th Cir. 1995). Thus, where a prison inmate seeks an order enjoining state prison official, the court should proceed with the utmost care and must recognize the unique nature of the prison setting. See Kendrick v. Bland, 740 F.2d 432, 438, n. 3 (6th Cir. 1984). As recognized by the Supreme Court, “[i]t is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state

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laws, regulations, and procedures, than the administration of its prisons…Since these internal
problems of state prisons involve issues so peculiarly within state authority and expertise, the
States have an important interest in not being bypassed in the correction of those problems.”
Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973).
In Money, the Court also discussed its concerns over request from petitioners to be released
from incarceration due to the COVID-19 outbreak:
Plaintiffs’ motion also raises serious concerns under core principles of federalism and the separation of powers, especially given their request for sweeping relief in the form of a mandatory injunction. See Missouri v. Jenkins, 495 U.S. 33, 51 (1990) (“[O]ne of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions.”). The Supreme Court repeatedly has cautioned that federal courts must tread lightly when it comes to questions of managing prisons, particularly state prisons. The Court has gone so far as to opine that “[i]t is difficult to imagine an 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 prisons.” Preiser, 411 U.S. at 492-92; see also Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (“[W]here a state penal system is involved, federal courts have * * * additional reason to accord deference to the appropriate prison authorities.”); Meachum v. Fano, 427 U.S. 215, 229, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) (“Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.”).
There are serious separation of powers concerns, too, because running and overseeing prisons is traditionally the province of the executive and legislative branches. See Turner, 482 U.S. at 84-85 (“Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.”). The judiciary is illequipped to manage decisions about how best to manage any inmate population— let alone a statewide population of tens of thousands of people scattered across more than a dozen facilities. And the concern about institutional competence is especially great where, as here, there is an ongoing, fast-moving public health emergency.
Money, 2020 U.S. Dist. LEXIS 63599 at *53-55.
The SCSO, along with other law enforcement agencies in Shelby County, have taken

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considerable steps to reduce the jail population at the Jail. They have already focused on
accelerating the criminal cases of detainees with less serious charges and detainees 60 years old
and older as ordered by the Tennessee Supreme Court. As a result, the population at the Jail has
decreased by nearly 700 inmates since the beginning of this year. As in Money, this Court’s
intervention would violate core principles of federalism and the separation of powers especially in
light of the SCSO and other agencies already proactively taking steps to reduce the jail population.
Such an action is unnecessary and would be detrimental to the public’s interest in allowing the
State of Tennessee and local County officials to administer their own corrections facilities.
CONCLUSION
Respondents respectfully request that the Court enter an order denying Petitioners’ Motion
for Temporary Restraining Order.
Respectfully submitted,
PENTECOST, GLENN & MAULDIN, PLLC
By: s/Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#031318) J. Austin Stokes (#031308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995
AND
Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100
Attorneys for Respondents-Defendants

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document was served via ECF filing system, upon the following:

Amreeta Mathai Andrea Woods ACLU 125 Broad Street New York, NY 10004

Jonathan Silberstein-Loeb Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019

Brice Moffatt Timmons Black, Mclaren, Jones, Ryland & Griffee, P.C. 530 Oak Court Drive, Ste. 360 Memphis, TN 38117

on or before the filing date thereof.

DATE: This the 26th day of May, 2020.

By: s/Nathan D. Tilly James I. Pentecost Nathan D. Tilly J. Austin Stokes

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 Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 1 of 27 PageID 804

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby, Michael Edgington, Russell Leaks, and Joseph Nelson, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. 20-cv-2359-SHL
FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. We are in the midst of the most significant global pandemic in generations. COVID-
19 is a highly contagious and deadly respiratory disease caused by a novel coronavirus (SARS-
CoV-2). The death rate of COVID-19 is estimated to be at least 2.3 percent, which is several times more than the common flu that kills thousands a year.1 The World Health Organization estimates that one in five people who contract the disease requires hospitalization.2
2. This action seeks urgent habeas and injunctive relief to protect medically vulnerable people and people with disabilities detained at Shelby County Jail3 (the “Jail”) who are at high risk
of severe injury or death from COVID-19. Favian Busby, Michael Edgington, Russell Leaks, and
Joseph Nelson (the “Named Plaintiffs”) seek to represent a class of all current and future medically
vulnerable (as defined below) pretrial detainees held at the Jail who, according to the Centers for
Disease Control and Prevention (the “CDC”), are at high risk of severe infection or death from
COVID-19 (the “Class”). Named Plaintiffs also seek to represent a subclass of current and future
pretrial detainees who are medically vulnerable and at high risk of severe injury or death from
COVID-19 due to disabilities protected under the Americans with Disabilities Act (“ADA”) and
Section 504 of the Rehabilitation Act (the “Subclass”).
1 The University of Tennessee Health Science Center estimates the fatality rate may be as high as 3.4 percent and notes that the novel coronavirus and COVID-19 are “100s of times worse than influenza.” Expert Responses, University of Tennessee Health Science Center, https://uthsc.edu/coronavirus/expert-responses.php (last visited May 19, 2020). As of May 17, 2020, there were 4,651,119 confirmed cases globally, with 312,119 deaths and 1,700,354 recoveries. Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering at Johns Hopkins University, Johns Hopkins University of Medicine, https://cutt.ly/StEyn2U; see also Coronavirus disease 2019 (COVID-19), UpToDate, https://cutt.ly/GtJYSkj (as of May 15, 2020, estimated overall fatality rate of 2.3 percent globally).
2 Q&A on Coronaviruses (COVID-19), “Should I Worry About COVID-19?” World Health Organization, https://cutt.ly/YtEyrxl (last visited May 19, 2020).
3 For the purposes of this motion, “Shelby County Jail” or the “Jail” refers to the detention facility located at 201 Poplar Ave., Memphis, TN 38103.
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3. COVID-19 has already spread throughout the Jail, infecting hundreds of people, yet Defendants continue to detain the members of the Class and Subclass (collectively, the “Classes”) despite the fact that they are likely to suffer severe infection or death if they contract COVID-19 and despite the Petitioners-Plaintiffs’ (“Plaintiffs”) high risk of contracting the disease by virtue of their housing at the Jail. Accordingly, Plaintiffs seek emergency relief from this Court provisionally certifying the Class and Subclass and compelling Defendants to (a) release4 immediately Favian Busby, Michael Edgington, Russell Leaks, and Joseph Nelson; (b) promptly identify COVID vulnerable individuals held at the Jail who are members of the Class; and (c) promptly release members of the Class from detention.
JURISDICTION AND VENUE 4. Plaintiffs bring this putative class action pursuant to 28 U.S.C. § 2241 and for relief from both detention that violates their Fourteenth Amendment rights under the U.S. Constitution and pursuant to 42 U.S.C. § 12131 et seq. and 29 U.S.C. § 794 for relief from disability discrimination. 5. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction) and Article I, Section 9, clause 2 of the U.S. Constitution (the Suspension Clause).
4 The term “release,” as used throughout this Petition, refers to the discharge of detained individuals from the physical confines of the Shelby County Jail, not necessarily release from all forms of custody. Release options may include, but are not limited to: supervised release (including through the use of GPS or other forms of location monitoring), halfway house residential placement, transfer to a hospital or other facility, or diversion to alternative community and treatment programs. Indeed, Shelby County already maintains a Pretrial Services Department “offering alternatives to incarceration at every stage of the criminal justice system.” See Shelby Cty. Tenn., Pretrial Services, available at https://www.shelbycountytn.gov/250/Justice-Initiatives (last visited May 20, 2020).
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6. Venue lies in the U.S. District Court for the Western District of Tennessee, the judicial district in which Plaintiffs are currently in custody. Venue is proper in the Western District of Tennessee under 28 U.S.C. § 1391, as venue is proper in any district in which a defendant resides.
PARTIES 7. Michael Edgington is a pretrial detainee at Shelby County Jail. He is 60 years old, putting him at high risk of serious illness or death if he contracts COVID-19. 8. Favian Busby is a pretrial detainee at Shelby County Jail. He has diabetes and takes insulin. Additionally, he has developed hypertension as a result of his diabetes. These conditions put him at high risk of serious illness or death if he contracts COVID-19. 9. Russell Leaks is a pretrial detainee at Shelby County Jail. He is 65 years old and suffers from chronic liver disease including hepatitis. Mr. Leaks also suffers from hypertension, an irregular heartbeat, and he previously suffered a heart attack. He is at high risk of serious illness or death if he contracts COVID-19. 10. Joseph Nelson is a pretrial detainee at Shelby County Jail. He has diabetes, which he manages with insulin and Metformin. He has also developed hypertension as a result of diabetes. He is at high risk of serious illness or death if he contracts COVID-19. 11. Respondent-Defendant Floyd Bonner, Jr. is the Sheriff of Shelby County, Tennessee and may be served with process at 201 Poplar Avenue, 9th Floor, Memphis, Tennessee 38103. Defendant Bonner is named in this action in his official capacity as the Sheriff of Shelby County. 12. Respondent-Defendant Shelby County Sheriff’s Department is a Tennessee governmental department which, by virtue of its custody of Plaintiffs, is a party defendant to this matter. Defendant Shelby County Sheriff’s Department may be served with process by serving Sheriff Floyd Bonner, Jr.
4

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FACTS A. Plaintiffs and the Class Members Are at High Risk of Severe Injury or Death from
COVID-19. 13. COVID-19 is an extremely infectious and deadly disease that is transmitted from person to person. The University of Tennessee Health Science Center indicates COVID-19 may be hundreds of times more fatal than influenza.5 14. On March 12, 2020, Governor Bill Lee declared a state of emergency in Tennessee in response to COVID-19. The Tennessee Department of Health notes that as of May 19, 2020, 18,378 Tennesseans have been infected with COVID-19, with 1,498 hospitalizations and 305 deaths. The highest number of deaths to date have occurred in Shelby County, which has the second highest number of cases. 15. As of May 20, 2020, at least 4,761,559 people worldwide have tested positive for the virus, and 317,559 people have died.6 In the United States, at least 1,504,830 people have contracted the virus, and at least 90,340 people have died from it.7 Early data suggests COVID19’s mortality rate in the U.S. is 1.3 percent, and as high as 3.6 percent in some counties.8 16. COVID-19 can cause grave injury to the lungs and heart, causing myocarditis, or inflammation of the heart muscle. COVID-19 can also result in permanent injury to the kidneys.
5 University of Tennessee Health Science Center, supra note 1. 6 Coronavirus disease (COVID-19) pandemic, World Health Organization
https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited May 20, 2020). 7 Cases in the U.S., Centers for Disease Control and Prevention https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited May 20, 2020). 8 Anirban Basu, Estimating The Infection Fatality Rate Among Symptomatic COVID-19 Cases In The United States, Health Affairs (May 7, 2020) https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00455.
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17. Patients who experience severe infections from COVID-19 require supportive care,
including recourse to scarce medical equipment and specialized care providers, who are able to
monitor and implement the care these individuals require. This level of support can exceed local
health-care resources.
18. Patients who survive severe COVID-19 infections often require extensive
rehabilitation to mitigate neurologic damage and the loss of respiratory capacity. Many who suffer
from severe infections will likely experience lifelong limitations and disabilities.
19. Age is a significant risk factor for complications and death. The mortality rate is at
least 1-3 percent for those over 55, and less than 1 percent for those under 55.9 Certain underlying
medical conditions and disabilities increase the risk of complications or death from COVID-19
regardless of age.10 The University of Tennessee Health Science Center notes that medically
9 Severe Outcomes Among Patients With COVID-19, Centers for Disease Control and Prevention (Mar. 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm.
10 Known conditions associated with a heightened risk of mortality and complications from COVID-19 include, but are not limited to: blood disorders, such as sickle cell disease or the use of blood thinners; chronic kidney disease; chronic liver disease, including cirrhosis and chronic hepatitis; cancer or cancer treatments; organ or bone marrow transplant; the use of immunosuppressant medications; HIV or AIDS; diabetes; inherited metabolic disorders and mitochondrial disorders; heart disease, including coronary artery disease, congenital heart disease, and heart failure; lung disease, including asthma and COPD (chronic bronchitis or emphysema); neurological and neurologic development conditions such as cerebral palsy, stroke, muscular dystrophy, or spinal cord injury; severe obesity (which is defined as having a BMI of 40 or higher); intellectual or developmental disability that may inhibit a person’s ability to understand or act on prevention measures or communicate symptoms, and any other condition or treatment that weakens immune response. See Harvard Medical School, If you are at higher risk: How to reduce risk of infection and what to do if you get sick, Harvard Health Publishing (updated May 6, 2020), https://www.health.harvard.edu/diseases-andconditions/if-you-are-at-higher-risk; see also High-Risk Conditions, Centers For Disease Control And Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlyingconditions.html (last visited May 16, 2020); University of Tennessee Health Science Center, supra note 1 (“The elderly, persons with chronic respiratory or cardiac diseases, pregnant women, and immunocompromised persons are at high risk for poor outcomes from COVID19.”).
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vulnerable persons—those who are likely to suffer worse outcomes if they were to contract COVID-19—may well need to “stay at home as much as possible” because “the only current advice is to avoid others who might be sick.”11
20. According to the CDC, African Americans are at increased risk for the kinds of medical conditions and disabilities that increase the risk of serious illness or death from COVID19. The rate of diabetes is 60 percent higher in African Americans than in Caucasian Americans;12 the rate of hypertension is 40 percent higher.13 Recent analysis of CDC data shows that the COVID-19 mortality rate among African Americans is 2.6 times that of white Americans.14 On any given day, the population of the Jail is more than 86 percent African American.15 All of the Named Plaintiffs are African American.
B. Plaintiffs and the Class Members Are Likely to Contract COVID-19 Unless They Are Released. 21. Experts agree that COVID-19 is primarily spread through respiratory droplets that are
inhaled by people nearby. Asymptomatic carriers of COVID-19 can also transmit it; public health officials estimate that as many as half of all transmitted cases pass from an infected person with
11 University of Tennessee Health Science Center, supra note 1. 12 U.S. Department of Health and Human Services, Office of Minority Health, Diabetes and
African Americans (accessed May 18, 2020), https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=18. 13 U.S. Department of Health and Human Services, Office of Minority Health, Heart Disease and African Americans (accessed May 18, 2020), https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=19. 14 APM Research Lab Staff, Covid-19 Deaths by Races and Ethnicity in the U.S., APM Research Lab (May 12, 2020), https://www.apmresearchlab.org/covid/deaths-by-race. 15 MacArthur Foundation, Safety + Justice Challenge, “Shelby County, TN,” http://www.safetyandjusticechallenge.org/challenge-site/shelby-county/ (last visited May 20, 2020).
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few or no symptoms.16 Experts at the University of Tennessee Health Science Center stress that people infected with COVID-19 may be infectious for upwards of 2–3 weeks, though any symptoms they experience last for far less time.17
22. There is no vaccine or cure for COVID-19. The only known way in which to mitigate the risk of contracting COVID-19 is to maintain at least six feet of distance from other people, and to practice vigilant hygiene, including frequent hand-washing, wearing face masks and gloves, and frequently sanitizing high-touch surfaces.18 Experts at the University of Tennessee Health Science Center note in particular that social distancing and rigorous hygiene are the “best prevention” and “better than even an N95 mask.”19
23. Accordingly, Governor Lee has required all Tennesseans who leave their homes to adhere to social distancing measures recommended by the CDC. Similarly, the Shelby County Health Department has advised all businesses to require that their employees and customers wear face masks and keep six feet from one another.20
24. Because it is impossible to practice social distancing in prisons and jails, and because these facilities are not sanitized on a daily basis and hygiene is generally lacking, prisons and jails
16 Nathan W. Furukawa, et al., Evidence supporting transmission of severe acute respiratory syndrome coronavirus 2 while presymptomatic or asymptomatic, Emerg Infect Dis. (July 2020 online report) (accessed May 14, 2020), https://doi.org/10.3201/eid2607.201595.
17 University of Tennessee Health Science Center, supra note 1. 18 Id. (“The only current advice is to avoid others who might be sick and wash your hands
frequently and before touching your face,” and “The best way to prevent infection is not to go near someone who is sick with the disease.... If you are in areas with active disease outbreaks, then the best measures are to stay at least 6 feet away from anyone with symptoms, avoid close contact such as shaking hands, and practice frequent hand hygiene.”). 19 Id. 20 Lee Harris, Bruce Randolph and Alisa Haushalter, Formal Issuance of Health Directive No. 3, Shelby County Health Department (May 4, 2020), http://www.shelbytnhealth.com/CivicAlerts.aspx?AID=73.
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across the country have become epicenters for COVID-19,21 including in Tennessee. In addition
to causing significant harm to those incarcerated, rampant outbreaks of COVID-19 in jails become
the direct cause of additional infections, hospitalizations, and deaths among jail staff and the surrounding community in which a jail sits.22
25. Across the country, governments and jail staff have recognized the threat that COVID-
19 poses to incarcerated people and the surrounding community. Jail administrators in numerous
states, including Alabama, California, Colorado, Ohio, and New Jersey, have concluded that widespread jail release is a necessary and appropriate public health intervention.23
26. Courts have intervened across the country to release COVID-vulnerable detainees
who are at high risk of severe infection or death from the disease. See, e.g., Wilson v. Williams,
No. 4:20-cv-00794, 2020 WL 1940882 (N.D. Ohio, Apr. 22, 2020) (ordering removal of all
medically vulnerable prisoners from a federal prison with a COVID-19 outbreak); Martinez-
Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350 (D. Conn. May 12, 2020)
(ordering identification of medically vulnerable detainees, their sentencing information, their
21 See, e.g., Timothy Williams & Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html; Sonia Moghe, Inside New York's notorious Rikers Island jails, 'the epicenter of the epicenter' of the coronavirus pandemic, CNN (May 16, 2020), https://www.cnn.com/2020/05/16/us/rikerscoronavirus/index.html; Katie Park et al., Tracking the Spread of Coronavirus in Prisons, The Marshall Project (Apr. 24, 2020), https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-inprisons; Lauren-Brooke Eisen, COVID-19 Continues its Toll on Jails and Prisons, Brennan Center (May 4, 2020) (interview with Dr. Homer Venters, former Chief Medical Officer of New York City Correctional Health System).
22 Eric Lofgren, et al., The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19, MEDRXIV (May 4, 2020), https://www.medrxiv.org/content/10.1101/2020.04.08.20058842v2.
23 Prison Policy Initiative, Responses to the COVID-19 pandemic (last updated May 19, 2020), https://www.prisonpolicy.org/virus/virusresponse.html#releases.
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consideration for compassionate release or home confinement, implementation of a process to
make full and speedy use of home confinement, and requiring elimination of certain barriers to consideration for release or transfer).24 This includes decisions providing for the release of all
medically vulnerable prisoners (or at least those not presenting special concerns of flight or dangerousness).25
27. Across Tennessee, positive tests in correctional facilities continue to rise.26 As
reported on April 17, 2020, 23 pretrial detainees at the Jail were tested; five were positive for COVID-19.27 The Jail tested 266 pretrial detainees and employees on or about April 25th, and as reported on April 29th, seventy-two percent tested positive. 28 In data released on May 15, 151
pretrial detainees and 66 jail staff tested positive for COVID-19; publicly-available data does not yet show how many were tested in arriving at these numbers.29 The true numbers in the Jail are
24 See also Malam v. Adducci, No. 5:20-cv-10829, ECF. 22, 29 (E.D. Mich. Apr. 5, 2020, Apr. 9, 2020) (ordering release of two detainees in Michigan at high risk for serious illness due to their age and underlying health conditions); Cameron v. Bouchard, No. 20-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020).
25 Many courts have also ordered compassionate release or release based on time served in light of the dangers of COVID-19. See, e.g., United States v. Amarrah, No. 17-20464, 2020 WL 2220008 (E.D. Mich. May 7, 2020); United States v. Hansen, No. 17 CR 50062, 2020 WL 2219068 (N.D. Ill. May 7, 2020).
26 A State-by-State Look at Coronavirus in Prisons, The Marshall Project (last updated May 8, 2020) https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.
27 Yolanda Jones, Five Inmates Test Positive for COVID at Shelby County Jail as Bonner Takes Safety Precautions, DAILY MEMPHIAN (Apr. 17, 2020) https://dailymemphian.com/article/13074/sherifffloyd-bonner-five-inmates-positive-coronavirus-shelby-county-jail.
28 Yolanda Jones, More Than 70% Of Inmates Tested At 201 Poplar Are Positive For COVID-19, DAILY MEMPHIAN (Apr. 29, 2020) https://dailymemphian.com/article/13488/201-poplar-covidtesting-70-percent-positive.
29 Yolanda Jones, West Tennessee Prisons, Shelby County Jail Hit Hard by Coronavirus, Daily Memphian (May 18, 2020), https://dailymemphian.com/article/14121/tennessee-departmentof-correction-shelby-county-jail-covid-19-testing-positive.
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undoubtedly higher, as the Jail has not administered universal testing. To date, one Shelby County Jail employee has died from COVID-19.30
28. Dr. Joe Goldenson, a physician with over 33 years of experience in correctional health care, has explained that conditions at jails prohibit social distancing and “exacerbate the spread of infectious diseases, particularly diseases like COVID-19.” Likewise, Dr. Virginia Fefferman has explained, “[t]he living conditions within the jail spread disease. Incarcerated people cannot practice social distancing due to the lack of space, overcrowding, or the requirement of constant supervision. Incarcerated people are moved in groups from jail to court or, where court proceedings are halted due to this pandemic, forced to remain in their cells or dorms in close proximity to each other. Incarcerated people often have limited access to products and equipment necessary to practice good personal hygiene, such as soap, or hand sanitizer or cleaning products.”
29. As a result, Dr. Goldenson believes that “medically vulnerable persons at Shelby County Jail are at grave risk of death or serious illness” and “must be released as soon as possible.” Likewise, Dr. Fefferman has cautioned that “[e]ach additional day the jail system continues under current operational standards will cost lives in both the incarcerated population and the broader community each jail serves.”
C. The Class Members Are Unsafe and Their Rights Are Being Violated. 30. At the Jail, the Named Plaintiffs live in “pods” with cells lining an open communal
area. Every cell has at least one person, and most have two people. 31. When more than one person is in a cell, it is impossible to maintain a six-foot distance
from one another. Detainees report spending up to 30 to 48 hours at a time in the same cell with another person. Class members sleep in bunk beds, with one bed three to four feet another. Each
30 Yolanda Jones, Sheriff’s Office Employee Dies From COVID-19, DAILY MEMPHIAN (Apr. 21, 2020) https://dailymemphian.com/article/13185/sheriffs-office-employee-dies-from-covid-19.
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cell also has an open toilet area and a sink that is shared by both cellmates. Showers are in the communal area of the pod and are shared by all members of the pod.
32. During mealtime, detainees are required to line up inches apart from each other to receive their meal trays from other detainees who distribute meals as part of their work duties. Detainees then sit four men to a table—sometimes squeezing in five or six men if there is not enough available seating—to eat their meal. It is not possible to socially distance in the communal area. People detained in the Jail were provided one mask on or around April 22, 2020. Most of those who received the masks have not been able to receive replacements. Detainees use the same metal utensils and cup for each meal and are responsible for maintaining their own utensils and cups. They do not have access to a dishwasher or bleach for cleaning their utensils.
33. Class members must also use, and reuse, the same “high-touch” items, such as telephones and kiosks, and the Jail does not provide disinfectant or other cleaning supplies to sanitize these items. The Jail gives Class members a clean change of clothes only once a week. Class members must purchase soap from commissary, and if they cannot afford commissary soap they must wait several days to get free soap. The soap available for free is small, and only lasts three or four days. Class members are only rarely able to clean their cells, relying on staff to offer cleaning supplies. Even when cleaning spray is available, Class members must use unwashed towels to wipe down surfaces. There is no hand sanitizer available to any Class members.
34. The Jail does not test for COVID-19 upon the intake of new arrestees. If someone displays symptoms of COVID-19, he is still booked into the Jail but is escorted to an isolation pod. Because the Jail relies on reported symptoms to decide whom to quarantine, there is no system for
12

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preventing spread of COVID-19 among asymptomatic people, even though many infected with COVID-19 may be asymptomatic while still capable of infecting others.31
35. On April 29, 2020, staff at the Jail pepper-sprayed detainees in medical isolation for COVID-19. This exacerbated the difficulty of breathing for many persons already experiencing symptoms including shortness of breath, nausea, vomiting, coughing up blood, fevers, and chills.
36. On May 19, 2020, staff at the Jail forced detainees who had been in quarantine for having contracted or been exposed to COVID-19 back into the general population. Those being moved from medical isolation were not retested for COVID-19 prior to being moved, nor were they screened for symptoms of COVID-19. Many detainees resisted the move because it put other people in the Jail at risk of increased exposure to the virus: as one person in quarantined housing put it, “All we are looking for is to be re-tested before we are re-classified and rehoused. . . [I feel] a moral obligation” not to pass the virus to anyone else.32 Jail staff pepper sprayed those individuals who refused to move out of quarantine.
D. Respondent-Defendants Have Discriminated Against the Members of the Subclass in Violation of the ADA and the Rehabilitation Act. 37. Respondent-Defendants’ actions violate not only Class members’ constitutional
rights, but also the Subclass members’ rights under disability rights laws. The Jail has failed, and continues to fail, to make reasonable modifications to detention to ensure that people with disabilities have an equal opportunity to participate in the adjudication of their criminal cases and to access jail services. For example, the Jail has failed to make modifications to ensure that members of the Subclass can practice adequate social distancing, and has failed to implement a
31 See Furukawa, supra note 14. 32 Yolanda Jones, Inmates at 201 Poplar pepper-sprayed over move after COVID quarantine,
DAILY MEMPHIAN (May 19, 2020) https://dailymemphian.com/article/14169/covid-19-201poplar-anthony-buckner-shelby-county-sheriffs-office.
13

Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 14 of 27 PageID 817
system for release as a modification to ensure Subclass members are alive to participate in the adjudication of their cases.
38. By continuing to detain Plaintiffs with disabilities, Defendants’ policies and practices violate the ADA and the Rehabilitation Act.
39. Plaintiff Favian Busby has been diagnosed with diabetes and hypertension, for which he takes medication daily. He also recently had surgery to implant a new joint between his femur and hip, from which he is still recovering. These conditions put Mr. Busby at high risk of severe infection or death from COVID-19.
40. Four men in Mr. Busby’s pod tested positive for COVID-19 on April 24. It is not possible for Mr. Busby to socially distance in his pod. To use a phone or obtain medication, Mr. Busby must wait in crowded lines. Staff do not socially distance and often do not wear masks, and Mr. Busby has not seen them wash their hands or use hand sanitizer.
41. He has also seen other people in the pod with COVID-19 symptoms who have avoided testing for fear of being put in isolation. Staff also do not always follow quarantine procedures. Mr. Busby has seen people go into quarantine, return to the pod, exhibit symptoms again, and yet not be sent back into quarantine.
42. Plaintiff Russell Leaks is 65 years old and suffers from chronic liver disease, including hepatitis, hypertension, and an irregular heartbeat—he previously suffered a heart attack. These conditions put Mr. Leaks at high risk of severe infection or death from COVID-19.
43. Mr. Leaks is detained in 5B pod, a dormitory-style pod shared by 21 people sleeping in bunks that sit about two feet apart. The dormitory is an open space with shared bathrooms, toilets, and common use items such as phones and kiosks. It is not possible for Mr. Leaks to social distance in his dormitory when conducting essential activities such as receiving medication,
14

Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 15 of 27 PageID 818
making phone calls, using the shower or toilet, or eating meals. Mr. Leaks has chosen not to go to sick call since the COVID-19 outbreak due to the inability to social distance in the medical unit.
44. A man in Mr. Leaks’ dormitory developed symptoms consistent with COVID-19 in late April of 2020 but neither was he tested, nor was anyone else in the dorm.
45. Plaintiff Joseph Nelson has been diagnosed with diabetes and hypertension, for which he takes medication daily. In November 2019, he was hospitalized for pancreatitis. These conditions put Mr. Nelson at high risk of severe infection or death from COVID-19.
46. Mr. Nelson is housed in 5B pod, which is a dormitory style unit without individual cells. Instead, the pod is shared by 21 people sleeping in bunks. Since March 2020, Mr. Nelson has had two bunkmates who sleep approximately two feet away from him. As of June 10, 2020, Mr. Nelson did not have a bunk mate but someone was sleeping immediately next to him in an adjacent bunk. In 5B pod, there are common spaces with access to showers, toilets, meal service, eating tables, medication distribution, and phone kiosks. It is not possible for Mr. Nelson to social distance in the pod.
CLASS ACTION ALLEGATIONS 47. Plaintiffs bring this action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedures on behalf of themselves and a class of similarly situated individuals consisting of all pretrial detainees in the custody of the Jail who are medically vulnerable (the “Class”). 48. The Class is defined as follows: all current and future persons held at the Jail in pretrial custody during the coronavirus pandemic who are aged 55 and older, as well as all current and future persons held at the Jail of any age who have: (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g., bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including
15

Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 16 of 27 PageID 819
hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) hypertension; (f) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (g) blood disorders (including sickle cell disease); (h) inherited metabolic disorders; (i) history of stroke; (j) neurological or developmental disability; (k) cancer or cancer treatments; (l) a BMI of 40 or more; and/or (m) muscular dystrophy or spinal cord injury.
49. Favian Busby, Russell Leaks, and Joseph Nelson also seek to represent a subclass, consisting of all current and future pretrial detainees in custody at the Jail who are medically vulnerable because of a disability as defined in the ADA (the “Subclass”). The Subclass includes people with all conditions listed in paragraph 42, except those who are medically vulnerable solely because of age or BMI.
50. This action has been brought and may properly be maintained as a class action under federal law. It satisfies the numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
51. Joinder is impracticable because (1) the Classes are numerous; (2) the Classes include future members, and (3) the Class members are incarcerated, rendering their ability to institute individual lawsuits limited, particularly in light of reduced legal visitation and court closures in Shelby County.
52. Numerosity: On information and belief, there are at least 300 people in the proposed Class and Subclass. First, there are currently over 200 people over 55 years old detained at the Jail.33 People in jails have higher rates of chronic health conditions than people in the general
33 See Shelby Cty. Sherriff’s Office, Who’s In Jail, available at http://www.shelbysheriff.org/injail.html (last visited May 18, 2020).
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Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 17 of 27 PageID 820
population. According to the Bureau of Justice Statistics, it is estimated that 39.8 percent of people in jail have a chronic health condition.34 Virtually all of these people will be members of the Class and Subclass. Further, as the below chart illustrates, health conditions that make COVID-19 particularly dangerous are more prevalent in the incarcerated population than in the general
public.35 53. Specific information regarding the size of the Class and the Subclass, as well as the
identity of the members of each group, is in Defendants’ exclusive control. As of the filing of this Amended Petition, Defendants have identified approximately 450 members of the Class. See ECF Nos. 43 and 44.
54. Commonality: Common questions of law and fact exist as to all members of the proposed Class and Subclass, including: (a) whether Defendants are detaining the members of the Class in violation of their constitutional rights; (b) whether Defendants’ policies and practices
34 See Laura M. Maruschack et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-12, p. 21, U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics (Feb. 2015), available at https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf.
35 Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020), https://cutt.ly/7tJXmlC. 17

Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 18 of 27 PageID 821
discriminate against the members of the Subclass in violation of the ADA and the Rehabilitation Act; and (c) whether Defendants are implementing policies and procedures to ensure social distancing, and to provide adequate PPE, or otherwise following CDC guidance to protect Class members.
55. Typicality: The claims of the Named Plaintiffs are typical of those of the Class as a whole, including because (a) each Named Plaintiff is currently in Defendants’ custody and (b) the Named Plaintiffs’ and all of the Class members’ claims arise from the same wrongful acts, omissions, policies, and practices of Defendants, and are based on the same legal theories.
56. Adequacy: The Named Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. The Named Plaintiffs have no interests adverse to the interests of the proposed Class. The Named Plaintiffs retained pro bono counsel with experience and success in the prosecution of civil rights litigation. Counsel for the Named Plaintiffs know of no conflicts among proposed Class members or between counsel and proposed Class members.
57. Defendants have acted on grounds generally applicable to all proposed Class members. This action seeks declaratory and injunctive relief. Plaintiffs therefore seek Class certification under Rule 23(b)(2).
58. In the alternative, the requirements of Rule 23(b)(1) are satisfied because prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual Class members that would establish incompatible standards for the party opposing the proposed Class.
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CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.
Constitution 28 U.S.C. § 2241 The Class Against All Defendants 59. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 60. Under the Fourteenth Amendment, persons in pretrial custody cannot be punished as part of their detention. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Punishment is established if the jailer’s conduct is either not rationally related to a legitimate, non-punitive government purpose or excessive in relation to that purpose. 61. Under general circumstances, Defendants can hold pretrial detainees if, after making individualized findings based on the person’s flight risk and danger to the community, and evaluating less restrictive options than jail, it is clear that nothing short of detention will mitigate a credible risk of flight or danger. But and as a condition of holding persons in pretrial custody, the Jail must provide them with health care services and a safe environment, and cannot punish them. Here, Defendants have exposed the Named Plaintiffs and the Class members to high risk of severe infection or death from COVID-19. Continuing to detain the Named Plaintiffs and the Class members is punitive, not rationally related to a legitimate purpose, and/or excessive in relation to any legitimate purpose. 62. Accordingly, Defendants, as supervisors, direct participants, and policy makers for Shelby County, have violated the rights of the Named Plaintiffs and the Class members under the Fourteenth Amendment.
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SECOND CLAIM FOR RELIEF Unconstitutional Confinement in Violation of the Fourteenth Amendment to the U.S. Constitution
28 U.S.C. § 2241 The Class Against All Defendants 63. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 64. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (the state has an “unquestioned duty” to provide adequate medical care for detained persons). 65. Corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody, including risks of future harm to their health and safety. See Helling v. McKinney, 509 U.S. 25, 33–34 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . [i]t 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”). 66. Under the Fourteenth Amendment, the government must provide incarcerated persons with reasonable safety and address serious medical needs that arise in jail to at least the same degree of persons in custody subsequent to a conviction, if not to a higher degree. Deliberate indifference to the serious risk COVID-19 poses to members of the Class violates this right. 67. Named Plaintiffs and the members of the Class are at high risk of severe infection from COVID-19. The Jail is rife with confirmed cases of COVID-19. Named Plaintiffs and Class members, because of their medical conditions and COVID-vulnerability, cannot be safe in the dorm-style facilities in which they are housed at the Jail. The only way to ensure their safety and
20

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protect their constitutional rights is through release. Defendants are aware of the risk to the safety of the Named Plaintiffs and the Class members, but they have not taken steps to release them. Defendants are therefore deliberately indifferent to the safety of the Named Plaintiffs and the Class members.
68. Accordingly, Defendants have violated the rights of the Named Plaintiffs and the Class members under the Fourteenth Amendment.
THIRD CLAIM FOR RELIEF Discrimination on the Basis of Disability in Violation of Title II of the ADA
42 U.S.C. § 12131, et seq./ 28 U.S.C. § 2241 The Subclass Against All Defendants
69. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein.
70. Title II of the ADA requires that public entities refrain from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12132. The regulations implementing Title II of the ADA require that public entities avoid policies, practices, criteria, or methods of administration that have the effect of excluding or discriminating against persons with disabilities in the entity’s programs, services, or activities. 28 C.F.R. § 35.130(a), (b)((3), (8). Further, a public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
71. Members of the Subclass are individuals with disabilities for purposes of the ADA. 42 U.S.C. § 12102. They are “qualified” for the programs, services, and activities being challenged herein. 42 U.S.C. § 12131(2).
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72. Defendants are violating Title II of the ADA by failing to make the reasonable modifications necessary to ensure equal access to adjudication, jail services, and release for people with disabilities who face high risk of severe infection or death from COVID-19. Defendants are further violating the ADA by employing methods of administration (including a policy of nonrelease even in the face of the dangers of COVID-19) that tend to discriminate against people with disabilities.
FOURTH CLAIM FOR RELIEF Discrimination on the Basis of Disability in Violation
of Section 504 of the Rehabilitation Act 29 U.S.C. § 794/28 U.S.C. § 2241
The Subclass Against All Defendants 73. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 74. Section 504 of the Rehabilitation Act states that “no qualified individual with disability in the United States . . . shall, solely by reason of [] disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The regulations implementing Section 504 of the Rehabilitation Act require that entities receiving federal financial assistance avoid unnecessary policies, practices, criteria, or methods of administration that have the effect of discriminating against persons with disabilities. 28 C.F.R. § 41.51(b)(3)(i). 75. Defendants receive “Federal financial assistance” within the meaning of 28 U.S.C. § 794(a). 76. Favian Busby, Russell Leaks, and Joseph Nelson are individuals with disabilities for the purposes of the Rehabilitation Act, 42 U.S.C. § 12012, 29 U.S.C. § 705(20)(B). They are “qualified” for the programs, services, and activities being challenged herein.
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77. Defendants are violating Section 504 of the Rehabilitation Act by failing to make the reasonable modifications necessary to ensure equal access to adjudication, jail services, and release for people with disabilities who are at high risk of severe infection or death from COVID-19. Defendants are further violating the Rehabilitation Act by employing methods of administration (including a policy of non-release even in the face of the dangers of COVID-19) that tend to discriminate against people with disabilities.
REQUEST FOR RELIEF 78. The Named Plaintiffs and Class members respectfully request that the Court enter an Order: 1. certifying this Petition as a Class Action; 2. granting a temporary restraining order and/or writ of habeas corpus requiring
Defendants to release immediately all Named Plaintiffs; 3. granting a temporary restraining order and/or writ of habeas corpus requiring
Defendants to produce promptly a list of all other Class and Subclass members detained at the Jail: 4. granting a temporary restraining order and/or writ of habeas corpus and/or order an enlargement of custody for all members of the Class and Subclass incarcerated solely due to their inability to afford a financial condition of release, solely due to an alleged technical violation of probation or parole, or whose release Defendants do not object to; 5. granting a temporary restraining order, preliminary and permanent injunction, and/or writ of habeas corpus imposing a process—to be determined by the Court— to consider the habeas corpus release and/or enlargement of custody of all
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remaining Class and Subclass members not released pursuant to Paragraph 4 within

two weeks, considering:

i.

the deprivation of the petitioner’s federal rights posed by the COVID-19

outbreak (including the disability discrimination for Subclass members and

the necessity of providing modifications including release);

ii.

any competent evidence that the individual poses a serious risk of flight or

danger to others;

iii.

whether, by clear and convincing evidence, any present risk of flight of

danger outweighs the threat to the petitioner’s health and safety posed by

his exposure to COVID-19 in the Jail, after considering alternative

conditions to manage the risk(s) presented;

6. granting a preliminary injunction, permanent injunction, and/or writ of habeas

corpus requiring continued reporting as to the future members of the Class and

Subclass, and requiring Defendants to divert Class and Subclass members from

incarceration at the Shelby County Jail, including but not limited to by exercising

their authority under T.C.A. 40-7-120;

7. providing that, if immediate relief is not granted on the basis of this Petition alone,

then expedited review of the Petition pursuant to 28 U.S.C. § 2243, including oral

argument, via telephonic or videoconference if necessary;

8. declaring that the Jail’s policies violate the Fourteenth Amendment right against

cruel and unusual punishment with respect to the Class;

9. declaring that the Jail’s policies violate the Fourteenth Amendment right to be free

from punishment prior to conviction with respect to the Class;

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Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 25 of 27 PageID 828 10. declaring that the Jail’s policies violate the ADA and Rehabilitation Act with respect to the Subclass; 11. awarding Named Plaintiffs’ attorney fees and costs under 42 U.S.C. sec. 1988 and other applicable law; and Any further relief this Court deems appropriate.
Dated: June 16, 2020 Respectfully submitted, /s/ Brice M. Timmons
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Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 26 of 27 PageID 829

Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Andrea Woods Amreeta S. Mathai American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org
Zoe Brennan-Krohn American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris*, ** American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

26

Case 2:20-cv-02359-SHL Document 50 Filed 06/16/20 Page 27 of 27 PageID 830
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Jonathan M. Silberstein-Loeb David Kimball-Stanley* Adrienne Lee* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com jsilberstein-loeb@paulweiss.com dkimball-stanley@paulweiss.com alee@paulweiss.com amedjuck@paulweiss.com
Attorneys for Plaintiffs
* Application for admission pro hac vice forthcoming ** Not admitted to practice in D.C., admitted in N.Y.
27

 
 Case 2:20-cv-02359-SHL Document 56 Filed 06/18/20 Page 1 of 4 PageID 843

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY and MICHAEL

)

EDGINGTON, on their own behalf and on )

behalf of those similarly situated,

)

)

Plaintiffs,

)

v.

)

)

FLOYD BONNER, JR., in his official

)

capacity, and SHELBY COUNTY

)

SHERIFF’S OFFICE,

)

)

Defendants.

)

No. 20-cv-2359-SHL

INSPECTION ORDER

Pursuant to Federal Rule of Evidence 706, the Court hereby appoints Michael K. Brady as an expert witness in the field of jail and prison operations as it relates to the prevention and mitigation of the spread of infectious diseases and public health in the correctional setting. The appointed expert shall provide information to the Court responsive to the Plaintiffs’ Motion for Temporary Restraining Order (ECF No. 2), and render an expert opinion on the current health and safety of medically-vulnerable Plaintiff-detainees at the Shelby County Jail (“the Jail”)1 in light of the COVID-19 pandemic, including but not limited to the Facility’s compliance with the pertinent CDC and Shelby County Public Health guidelines and other applicable standards. The expert’s findings shall include, if warranted, recommendations regarding corrective measures that, in his expert opinion, should be implemented at the Jail to protect the medically-vulnerable from the COVID-19 virus at the Facility.

1 The Jail is located at 201 Poplar Avenue, Memphis, TN, 38103.

Case 2:20-cv-02359-SHL Document 56 Filed 06/18/20 Page 2 of 4 PageID 844
Further, the Court ORDERS that Mr. Brady shall be granted unrestricted access to the Facility unannounced, and may bring with him laptops or other similar equipment with internet access, cameras, cell phones, writing implements, and any other equipment required to conduct his site visit/s. Once in the Facility, Mr. Brady shall be permitted to inspect areas of the facilities without limitation and shall be permitted to speak with staff and inmates in confidence and outside of the presence of Facility supervisors and staff. The inspection shall take place anytime between the hours of 8 a.m. and 11 p.m. on any day of the week and may last for 1-2 days. The inspection will be unaccompanied by either Party, and Defendants shall make available a security escort and guide who is familiar with the Facility and its policies and procedures.
Defendants are further ORDERED to make available reasonable personal protective equipment, including but not limited to N95 masks and protective eyewear to Mr. Brady and shall permit him to bring within the Jail such personal protective equipment as he deems necessary.
It is further ORDERED that Mr. Brady may confer with counsel for the Plaintiffs and Defendants each, ex parte, at his sole discretion. Mr. Brady shall annotate any conferences with either Party in his report.
It is further ORDERED that Mr. Brady shall be permitted to review all pertinent Facility and detainee records and documents including medical and mental health records, electronic or otherwise, and video footage in connection with his investigation. Mr. Brady is empowered to
2

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make document and records request to the Parties and their healthcare provider.2 The Parties shall respond to Mr. Brady’s requests in a timely fashion.
It is further ORDERED that the Facility shall make all supervisors and staff available for interviews, including telephonic interviews conducted by Mr. Brady or his associates immediately and without undue delay, if requested by Mr. Brady.
Mr. Brady shall provide a written report to the Parties and the Court as soon as possible, but no later than June 29, 2020. The report should address, at minimum, the Inspector’s findings on the following issues, to the extent, in the opinion of Mr. Brady, these issues impact medicallyvulnerable detainees:
(1) the Jail’s Pre-Intake /Intake procedures; (2) the Jail’s Quarantine /Isolation procedures; (3) the Jail’s efforts to educate inmates/detainees preventing the spread of COVID-
19; (4) the Jail’s efforts to train facility staff on preventing the spread of COVID-19,
including policies and procedures; (5) the Jail’s cleaning practices in light of COVID-19; (6) the availability of hygiene products, cleaning products, and personal protective
equipment (“PPE”) to inmates/detainees, particularly the medically-vulnerable; (7) the Jail’s efforts to implement social distancing; (8) the Jail’s efforts to limit movement in the Jail; (9) the Jail’s policies concerning medically screening staff and/or visitors to the Jail; (10) the Jail’s responses to inmates who test positive for COVID-19;
2 If a Party believes it is necessary to protect a particular document, it may provide said document with a confidentiality agreement to Mr. Brady directly. The Court will address any additional dispute, if necessary.
3

Case 2:20-cv-02359-SHL Document 56 Filed 06/18/20 Page 4 of 4 PageID 846
(11) the Jail’s treatment of medically-vulnerable inmates/detainees as defined by the Centers for Disease Control and Prevention;
(12) detainees’ access to healthcare when they exhibit symptoms associated with COVID-19;
(13) the Jail’s efforts to reduce the population of the Jail due to COVID-19; (14) any other aspect of confinement which the Inspector believes is relevant to protect
the medically vulnerable; and (15) how all of the above has progressed throughout the COVID-19 pandemic.
To the extent the inspection, review, and report includes protected health or other sensitive information, it shall be kept in restricted or under seal access pursuant to this Court’s protective Order to be issued by separate filing, if necessary.
Nothing in this Order precludes either party from hiring its own expert to conduct its own inspection.
IT IS SO ORDERED, this 18th day of June, 2020. s/ Sheryl H. Lipman SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE
4

 
 Case 2:20-cv-02359-SHL Document 76 Filed 06/30/20 Page 1 of 35 PageID 1073
SHELBY COUNTY MENS JAIL COVID19 INSPECTION JUNE 29, 2020
Covid-19 Inspection of the Shelby County Men’s Jail at 201 Poplar Avenue, Memphis TN 38103 Final Report
Submitted to: The Honorable Sheryl H. Lipman District Judge United States District Court Western District of Tennessee Western Division
Produced by: Mike Brady Director Sabot Consulting
June 29, 2020

Case 2:20-cv-02359-SHL Document 76 Filed 06/30/20 Page 2 of 35 PageID 1074
SHELBY COUNTY MENS JAIL COVID19 INSPECTION JUNE 29, 2020
TABLE OF CONTENTS INTRODUCTION ................................................................................................. 1 THE JAIL SETTING............................................................................................. 4 INSPECTION OBSERVATIONS - JUNE 23, 24, 25, 2020...................................... 5 COVID-19 SCREENING FOR EMPLOYEES ....................................................... 6 INTAKE/BOOKING/RELEASE............................................................................ 8 MEDICAL........................................................................................................... 10 MENTAL HEALTH ............................................................................................ 11 MEDICAL ISOLATION LOWER LEVEL PODS A-K........................................ 13 FLOORS 1-6........................................................................................................ 15 POPULATION MANAGEMENT ........................................................................ 17 STAFFING SHORTAGES................................................................................... 18 FINDINGS AND RECOMMENDATIONS .......................................................... 19 CONCLUSION.................................................................................................... 27 EXHIBIT 1 – INSPECTION ORDER .................................................................. 30
ii

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SHELBY COUNTY MENS JAIL COVID19 INSPECTION JUNE 29, 2020
INTRODUCTION
My name is Michael K. Brady, and I am the Director of the Criminal Justice Division for Sabot Consulting. I am a nationally recognized expert in prison and jail operations, the Americans With Disabilities Act, and the prevention and mitigation of the spread of infectious diseases and public health in the correctional setting from an operational and non-clinical perspective.
On June 18, 2020, in the matter of Busby V Bonner ( No. 2:20-cv-2359-SHL), pursuant to Federal Rule of Evidence 706, United States District Judge For The Western District of Tennessee, Western Division, The Honorable Sheryl H. Lippman, appointed me as the neutral expert witness in the field of jail and prison operations as it relates to the prevention and mitigation of the spread of infectious diseases and public health in the correctional setting.
The Inspection Order states in pertinent part:
“…The appointed expert shall provide information to the Court responsive to Plaintiffs’ Motion for Temporary Restraining Order (ECF No. 2) and render an expert opinion on the current health and safety of medicallyvulnerable Plaintiff-detainees at the Shelby County Jail (“the jail”) in light of the Covd-19 pandemic, including but not limited to the Facility’s compliance with the pertinent CDC and Shelby County Public Health guidelines and other applicable standards. The expert’s findings shall include, if warranted, recommendations regarding corrective measures that, in his expert opinion, should be implemented at the jail, to protect the medically-vulnerable from the COVID-19 virus at the facility….” (See Inspection Order Filed On June 18, 2020, attached as Exhibit 1)
The medically-vulnerable detainees to which the inspection order applies are defined as follows:
1. People 65 years and older 2. People with chronic lung disease or moderate to severe asthma (including
chronic obstructive pulmonary disease (COPD) (including emphysema, and chronic bronchitis), 3. Idiopathic pulmonary fibrosis and cystic fibrosis; 4. People who have serious heart conditions (including heart failure, coronary heart disease, congenital heart disease, cardiomyopathies, and pulmonary hypertension); 5. People who are immunocompromised (including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications); 6. People with severe obesity (body mass index [BMI] of 40 or higher); 7. People with Diabetes; 8. People with chronic kidney disease undergoing dialysis;
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9. People with chronic liver disease, including cirrhosis; and 10. People with hemoglobin disorders, including sickle cell disease and
thalassemia. 11. All persons currently or in the future held at the jail in pretrial custody during
the COVID-19 pandemic who are at increased risk of Covid-19 complications or death because of disabilities as defined in the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.
In order to have a better understanding of the contested facts of this case, I read the pleadings and declarations submitted by both Petitioner-Plaintiffs and RespondentDefendants.
In addition, I requested relevant documents from Petitioner-Plaintiffs’ Counsel, Respondent-Defense Counsel, and Wellpath’s Counsel in advance of my unannounced arrival at the Shelby County Pre-Detention Jail located at 201 Poplar Avenue, Memphis, Tennessee, 38103.
In addition from 0830hrs until approximately 2300hrs for three consecutive days, I conducted multiple in depth interviews with key personnel for the Shelby County Jail, key personnel with the contract medical provider, WELLPATH , walked the decks on each floor of the jail, inspected each of the living units, dayrooms, common areas, showers, toilets, medical clinic, intake/booking/release, interviewed staff and inmates on the first (0600-1400hrs) and second watch (1400hrs-2200hrs), inspected the holding cells, the court tunnel, the upstairs court holding cells, transportation vehicles, and from the control center on the lower level observed inmates being escorted through the court tunnel, placed in the holding cells, escorted upstairs to and from the General Sessions Court and Criminal Courts, and back to through the tunnel toward their living units.
I was very fortunate to have newly promoted Lieutenant Styles as my security escort and guide. She is intimately familiar with all aspects of the Shelby County Jail operations and was responsible for the seamless scheduling of staff and inmate interviews, escorting me through any and all parts of the jail, gathering not only the documents I requested in advance, but additional documents that I needed as a result of my interviews and observations throughout my three days of inspection. She was my security escort, scheduler, facilitator, problem solver, and reservoir of knowledge, from 0830 to 2300hrs every day of the three long days of my onsite inspection. We continue to communicate as needed this weekend for any additional documents I may need or questions I need answered as I pen this report. Without her assistance, it would have been impossible for me to have achieved the in depth understanding of all aspects of the Shelby County Jail Operations necessary to compete this inspection report. Thank you Lt. Styles.
I also want to acknowledge the Chief Fields, Assistant Chief Hubbard, Assistant Chief Ward, Dr. Bruce Randolph, Dr. Judy Martin, Dr. Donna Randolph, Jeremy Sanders, Ms. Geeter, Mischelle Best, and all their respective staff for allowing me to repeatedly take time away from their busy schedules to answer my questions and provide me with the documents I needed to verify the policies, procedures and practices about which they
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spoke were in writing. They are consummate professionals who care deeply about the inmates in the Shelby County Jail. At all times of the day or night, I had unrestricted access to key personnel and the jail facility. Shelby County Jail command staff and Wellpath leadership were transparent, responsive and open to new approaches in addressing the opportunities for improvement that I discovered during my court ordered inspection. It is important to remember that during the course of my inspection, it was necessary for me to explore potential solutions to each area of concern I identified during my inspection. Recommending corrective measures to the Court that are not practical or doable would render my recommendations useless, a prolific waste of time, energy, and money. It was not my intent to usurp the authority of the Court or the interest of the parties in exploring those options, but rather to find meaningful, efficient, cost effective, and practical solutions to preventing and mitigating the spread of this highly contagious and oftentimes deadly virus among the vulnerable population housed in the Shelby County Jail.
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THE JAIL SETTING
County Jail operations have many unique characteristics:
§ Jails operate continuously, 24 hours per day, 365 days per year. § Jails provide a wide spectrum of services, activities, and programs for inmates. § Jails are high-risk settings where inmates are often dangerous to themselves and
others. § Jail populations have a significant percentage of inmates with chronic diseases
serious medical conditions, serious mental illness, and disabilities § Jail populations can fluctuate widely throughout the year, and even on a day-to
day basis. § Many jail inmates spend only a few hours in jail or a few days especially in light
of the new bail statutes, pretrial release programs, and other court actions. § Many other inmates remain in jail for months or years because of the serious
nature of their charges or their inability to make even the lowest bail amount. § Admission and release procedures require much staff effort, but the peak periods
of admission are often difficult to anticipate (special events, parole/probation sweeps, gang sweeps, homeless camp sweeps, demonstrations, DUI checkpoints, etc.). § Extensive Documentation is required for all activities and procedures at the jail. § Perimeter security and internal movement must be controlled at all times. § Supervision needs vary for different classifications of inmates. § Jail staff, administrators, and funding officials can be held liable for substandard/constitutional deficient jail operations and conditions. § Transportation to and from outside medical appointments, inpatient hospitalizations are difficult to anticipate and staff. § Jails now are one of the largest and most challenging mental health treatment facilities in the country. § The provision of quality medical care to an older, sicker, inmate population is incredibly expensive and challenging. In recent years, recruiting and maintaining adequate badge staff has been extremely difficult and current events have exacerbated the problem. Many jails are short staffed and have to employ robust mandatory overtime initiatives that are unsustainable.
Couple these challenges with the current attempts to limit the spread of the highly contagious and deadly Covid-19 virus in the Shelby County Men’s Pre-Detention Facility (hereinafter “the jail”), and it becomes exponentially more difficult.
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INSPECTION OBSERVATIONS - JUNE 23, 24, 25, 2020 It goes without saying that these are extraordinarily difficult and dangerous times in which we find ourselves thrust today. Operating a large county jail such as the Shelby County Jail is challenging, complex, and labor intensive. Attempting to prevent/mitigate/eradicate the Covid19 virus within the secure perimeter of the jail, adds an additional daunting and extraordinarily labor intensive layer of multidisciplinary work that must be implemented with precision, armed with the flexibility to adapt to new discoveries, guidance and directives from the CDC and Public Health in real time, and be monitored with hypervigilance to ensure its effectiveness. As you can imagine, each county jail is unique and there is not a single Covid-19 operational response model that is effective for all jails. The core principals of social distancing, testing, tracing, and isolation must be present, but how those four core principals are implemented are oftentimes restricted because of the physical plant, population size, and staffing. Shelby County is no different. On Tuesday morning, June 23, 2020 at approximately 0730hrs, I notified my security escort, Lt. Styles that I would be conducting my inspection of the Shelby County Jail and that I would be arriving at the Shelby County Detention Facility at 0830. The date and time of my inspection was unannounced until one hour prior to my arrival. Lt. Styles met me at a secure parking lot off Washington Street and we entered the jail through the employee entrance. I was wearing a surgical mask, and Lt. Styles was wearing a mask as well.
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COVID-19 SCREENING FOR EMPLOYEES
Immediately upon entering the jail outside the secure perimeter, there was an employee/contractor screening table. I was asked to fill out a “Coronavirus Screening” questionnaire which posed the following questions:
1. In the past 14 days, have you been outside of the United States and/or, on a cruise or been in contact with anyone who has? Yes_ No_ If so, When___ Where___
2. In the past 14 days have you been in crowded areas, (for example Airports, Conferences, Concerts, etc.) YES__NO__ If so, When__ Where__
3. Have you or anyone you have had close contact with been diagnosed with or quarantined for Coronavirus? (The incubation period is 2-14 days) YES__NO__
4. Do you have a fever, cough, difficulty breathing, diarrhea, headache, loss of taste or smell or symptoms of lower or upper respiratory illness? YES__ NO__
My temperature was taken and recorded on the questionnaire.
At the bottom of the questionnaire, the final statement was “If answered yes to any of the questions above, please see the immediate Supervisor of the area.”
The Supervisor of the area cleared me for entry into the secure perimeter of the jail.
While in the employee screening area, I paused and observed several employees enter the facility through that entrance and all were wearing face masks, filled out the questionnaire and had their temperatures taken. I was provided with the temperature logs from the employee screening area for the last 90 days.
This is the process that was followed each day that I entered the facility at 0830hrs. On days two and three, I was not escorted by Lt. Styles, but I followed the same routine. Lt. Styles was already on the premises and came out from the secure perimeter to get me each morning and evening on days two and three.
Each day of my inspection, I paused in the employee screening area to observe employees entering the jail. 99.9 percent of the employees who entered the area were properly wearing their masks, had their temperature taken and filled out the questionnaire.
On day two of my Inspection, I observed two men in street clothes enter the screening area who were not wearing masks, did not practice social distancing, and were not issued masks prior to going in to the secure perimeter of the facility. The security officer in charge of the secondary screening area did not stop them from entering the facility with no masks.
Once inside the secure perimeter of the building, I met with Chief Jailer Fields, and Assistant Chief of Security Hubbard to get a better sense of how their jail operated on a day to day basis, and to discuss some of the challenges they faced from their perspective in combating the spread of the Coronavirus in their facility. I found both Chief Fields and
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Assistant Chief Hubbard to be welcoming, transparent, cooperative, and openminded. I was presented with two binders of documents that I had previously requested responsive to items 1-15 in the Inspection Order signed by Judge Lipman. At the conclusion of this report I will list the documents that I reviewed as part of this Inspection. We were then joined by Dr. Judy C. Martin, PhD, NP-BC, Chief of Nursing for the Shelby County Health Department, and Jeremy R. Sanders, MPA, the Health Services Administrator for Wellpath for the Shelby County Jail. I spoke with them and let them know how I intended to conduct my inspection over the next several days. After I met with the Jail Command Staff, I ask to see the entire jail facility from an inmate’s arrival through the Sally Port through release. Over the course of the next several days, I would meet with and ask questions of a variety of key jail personnel, Shelby County Health leadership, and Wellpath leadership as well as inspect all parts of the jail in which vulnerable inmates and inmates with disabilities were housed, held or moved to and from (medical, mental health appointments, pill call, and court) Dr. Martin and Mr. Sanders wished to accompany me on the first day, and I welcomed them because I wanted them to see what I saw in real time, and it was more efficient to have healthcare leadership present to answer any healthcare related questions about which Lt. Styles might not be intimately familiar.
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INTAKE/BOOKING/RELEASE
I began my inspection in the Intake/Booking area and the sally port where all law enforcement are required to bring arrestees for screening and booking.
24 hours a day, 7 days a week, 365 days a year all arresting agencies who enter the sally port are required to keep the inmate in the agency vehicle until it is there turn to present the arrestee for a pre-booking Covid19 healthcare screening. They are asked a series of healthcare questions about any symptoms that they may be experiencing related to Covid19 and they are administered a temperature strip which is then passed back through a glass barrier to the nurse on the other side.
If the inmate is asymptomatic, they are issued a mask and placed in a holding cell inside the secure perimeter and they go through the normal booking process. The inmate is searched, photographed, fingerprinted, and interviewed by pretrial services. Pretrial Services administers a new Public Safety Assessment tool along with the old assessment questionnaire to determine if the inmate is eligible for release on his or her own recognizance (ROR) or if he or she will have a bond set by the Commissioner. The bond is set within the first 24 hours.
If they are not eligible for ROR, the inmate will be dressed out, processed through classification and housed in a general population isolation unit that is cohorted for 21 days. (Lower Level A-G)
If the inmate is symptomatic, the inmate is escorted immediately over to a tent area on the far end of the Sally Port, and healthcare staff and security staff come out in full hazmat PPE and conduct a more in depth healthcare screening to determine if the arrestee is suitable for confinement (Not in acute respiratory distress or suffering from some other medical condition that requires the inmate to be transferred to the ER at Region1 Medical). If the inmate is suitable for confinement, the inmate is placed in full PPE including a hazmat jumpsuit, booties, facemask and eye protection and escorted to a medical quarantine area where he will remain for 21 days. Inmate is tested immediately with the nasal pharyngeal test for Covid19. The positive inmates’ temperatures are taken daily, for 21 days, but no other Covid19 tests are performed. Wellpath uses a non-test based strategy for asymptomatic and symptomatic inmates. Inmates must remain in medical isolation for 21 days prior to being released to general population.
If an inmate is symptomatic, his clothing is placed in a hazmat bag and disposed of as hazardous material.
During the course of my inspection and multiple observations of the booking area, I witnessed an inmate being booked into the jail who was not wearing a mask and the arresting officer had his mask down below his nose. The inmate was allowed to enter the interior of the booking area without a mask and was placed in a holding cell. The inmate was without a mask for a significant portion of the booking process. Lt. Styles was present when I made this observation.
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Moreover, we observed at least one officer with his mask down around his chin when he entered the booking area, and, on another occasion, down below his nose. Episodic violations of the health screening process, and the mask policy for inmates and staff creates an undue risk of harm to the vulnerable inmates who are processed through the booking area. I also inquired about the cleaning process for the intake/booking area and it was learned that while the common areas and phone banks are cleaned every hour, the holding cells are only cleaned at the beginning of the shift and one or two additional times. This practice while important, is insufficient to protect subsequent vulnerable inmates from an unreasonable risk of exposure to the virus as a result of a potentially asymptomatic positive inmate contaminating the hard surfaces in the holding cells, the phones, the toilets in the holding cells (we know that there have been at least two studies that suggest that the virus can be shed through stool and urine but further studies are needed). I do want to note that this jail would be considered very clean in normal times. The floors are polished, the walls are clean, the empty cells are free of debris, human waste, and the toilets appear to be clean. It is obvious that the Command Staff go to great lengths to keep this older jail clean.
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MEDICAL
The next area I inspected was the medical clinic area. There is no Outpatient Housing Unit or Infirmary in the jail. Anyone requiring those services must be transported to an outside facility. The Wellpath staff conduct regular sick call and during this time of crisis use Telemedicine for much of their Physician appointments. I observed the clinic area and spoke with several nurses. The area was clean and I observed inmates being seen in the clinic and via telemedicine including on HIV patient communicating with his physician via telemedicine. All participants were wearing appropriate PPE and were properly social distancing. I note that during the course of my three-day inspection, I did notice episodic violations of the mask policy by healthcare workers. I also observed pill call on the housing units and noticed that there we newly installed markers for social distancing along the corridor where pill call is conducted. The inmates on the occasion of my inspection were properly social distanced and were wearing masks. While I observed some episodic violations of the mask policy by inmates having their masks down below their nose, staff was quick to direct the inmate to put the mask over their nose. In each case, the inmate complied. When asked about outside specialty appointments for Chronic Diseases and Serious Medical Conditions, Wellpath’s Medical Director, Dr. Donna Randolph told me that Region1health were not accepting appointments from the jail for several months during the Covid19 pandemic, but they have recently started accepting appointments again. She stated that it is still a challenge to get inmates in need of specialty care regular appointments because Region1health only accepts appointments for inmates one day a week and that single day must accommodate inmates from the Shelby County Penal Farm and the Federal Detention Facility located in Shelby County. There is a dialysis clinic that occurs at the jail regularly and the dialysis patients have not experienced any delays in their care. I spent a considerable amount of time with Dr. Randolph and Mr. Sanders and I found them to be well informed and passionate about delivering competent medical care to the inmate population. The care that is delivered by Wellpath is hampered by reliance on resources they cannot control and as a result inadequate chronic care and specialty care may be occurring.
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MENTAL HEALTH
There is a housing unit for inmates who are suicidal and are on fifteen-minute checks. However, if any behavioral health inmate would be in need of more intensive care, they would have to be transported to an outside hospital. One practice that concerns me for this vulnerable population is that all inmates on 15-minute checks are issued suicide resistant smocks rather than following the best practice of evaluating the need for a smock on a case by case basis. The blanket policy of issuing smocks to everyone will discourage some inmates from revealing their suicidality because they don’t want everything taken from them and to be stuck in a smock. Inmates view this as punitive. I spoke with the Mental Health Director Ms. Geeter regarding this issue. The SMI population is part of the vulnerable population as disabled inmates. This population more often than not has co-morbid medical conditions that require monitoring and treatment. Dr. Randolph and Ms. Geeter assured me that the SMI population are getting their labs done in a timely fashion (as I understand it some of the psychotropic medications can cause liver and kidney problems as well as significant weight gain) Wellpath has contracted with Lindsay Hayes, a nationally recognized expert on Suicide Prevention, and Mr. Hayes was scheduled to return to the jail for a follow up visit, but because of the Covid19 he has been unable to return to the jail.
I was pleased to observe several suicide resistant cells in this unit. These cells have eliminated the tie off points that are commonly used by inmates who are attempting to commit suicide. 90% of the suicides that take place in a jail setting are by hanging. The Mental Health Director, Ms. Geeter, personally trains security staff and non-security staff on suicide prevention practices. Ms. Geeter also uses Lindsay Hayes’s suicide prevention manual and curriculum. The initial training is between six to eight hours (depending on the number of questions asked during the session) and the refresher training is two hours. Wellpath does not have a formal structure to their mental health delivery system, but Wellpath does employ one full time Psychiatrist, one half time Psychiatrist, several LMSWs, LPCs, LSWs, and one Psychiatric NP.
There are about 200 behavioral health inmates on the second floor, and there are approximately 150 more higher functioning behavioral health inmates scattered throughout the jail. Many of those inmates are on medication management only, but Ms. Geeter’s team does not have a formal treatment program structure, but does deliver basic mental health services, special needs services, individual therapy, and crisis management and assessment.
One concern that I have is that Wellpath does not employ a Clinical Psychologist to formally test for Developmental Disabilities(DD) and Learning Disabilities(LD). The DD population who are in need of higher adaptive support are subject to victimization (sexual assault, other inmates stealing their commissary, carry drugs and weapons for gangs) and have short term memory problems, difficulty understanding directions, forgetting to shower, wash their hands, clean their cells, eat, etc. Ms. Geeter told me that anyone who is suspected of being DD is seen by a psychiatrist. The DD population can be as large as
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two to four percent of the inmate population (38-76 inmates) with a much smaller number being profoundly DD requiring high adaptive supports and protection from victimization. There is no formal testing that occurs for the LD population. Learning Disabled inmates do not want people to know that they cannot read, write, or have trouble understanding words, sentences and documents with which all of us may not struggle. It is important that effective communication is used with this population and that means using simpler words, talking slower, explaining the Covid19 education materials to them, etc. Equally important for them to have equal access to the programs, services, and activities in the jail, Wellpath must screen for and identify this population to make sure that security staff and program staff are effectively communicating with them, that they understand the Covid19 education materials and that they rules and regulations of the jail. The LD population while not medically vulnerable, they are disabled as defined by the ADA, and are entitled to accommodations for their disabilities. I spoke with Ms. Jackson who oversees the crisis unit where suicidal patients are housed. She is very passionate about her job and has a very good relationship with the inmates in her unit. The time constraints around this inspection prevented me from spending more time with her and learning more about her unit. Ms. Geeter and Ms. Jackson clearly care about this very vulnerable population and do their best to ensure the inmates in the Behavioral Health Delivery System are properly treated. My next area of inspection was the housing units themselves. Lt. Styles, Dr. Martin, Mr. Sanders and went to all the living units together on the first day, and then Lt. Styles and I went back to the living units to interview inmates from the list of vulnerable inmates and inmates with disabilities the following two days. The vulnerable inmates/ADA inmates who are the subject of this Court ordered inspection are scattered throughout the jail in all security levels on all floors.
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MEDICAL ISOLATION LOWER LEVEL PODS A-K
In their Covid-19 response policies, procedures and practices, Wellpath and the jail represent that asymptomatic newly incarcerated inmates are medically isolated for 21 days and then released to general population living units commensurate with their security level.
However, I was told by several inmates that I interviewed that these newly incarcerated inmates do not remain in medical isolation from the rest of the population for 21 days as the Covid-19 response policy and booking flow chart represents.
Allegedly, throughout the 21 days the inmates are intended to be isolated from the rest of the jail population in order to prevent the introduction of the Covid-19 virus into the jail, they are required to be moved from their isolation units through the court tunnel and into holding cells for the General Sessions Courts and the Criminal Courts of Shelby County. The medically isolated inmates are mixed in the Division specific holding cells with 2025 other general population inmates from throughout the jail for up to 4 hours. This occurs in the morning and afternoon multiple times a week. Most of the time, according to the inmates I interviewed, the inmates do not leave the holding cell or they are directed to walk up the stairs to the court hallway where they are handed a piece of paper and told their case has been reset for another date. The inmates then walk back down the stairs back through the court tunnel returning to their living units in the jail and the medical isolation units on the lower level.
In order to determine that this was actually occurring, during court hours, I went to the control booth in the lower level that keeps the court tunnel, the lower level holding cells, and the stairs to the courtrooms under constant camera surveillance. While in that control booth with Lt. Styles and the control booth security officer, I could see the constant inmate movement through the court tunnel to and from the holding cells. In the holding cells there were approximately 20-25 inmates in one, 16 in another, and 6 in another. I observed some inmates were not wearing their masks. I observed inmates walking up and down the stairs to the courtrooms. I saw that there was no social distancing in two of the three holding cells. I observed some security staff were not properly wearing their masks in the tunnel.
Once I verified this practice, I circled back and spoke with Chief Fields, Assistant Chief Hubbard, Dr. Donna Randolph, and Mr. Jeremy Sanders. All verified that this was taking place shared my concern about the practice, but felt they had no control over how the court handles their calendar and appearances.
This practice unquestionably puts vulnerable inmates and the ADA inmates at an unreasonable risk of harm from potential expose to asymptomatic Covid-19 positive inmates. Without an immediate change to this practice, it clearly renders any attempts to medically isolate asymptomatic newly incarcerated inmates from the rest of the jail population ineffective and of little value. The risk of infecting other inmates and introducing the Covid-19 virus into the general population of the jail is high.
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It should be noted that on the lower level there are two holding cells that have video hearing capability for the courts. Those holding areas are LLR and LLS.
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FLOORS 1-6
While the pleadings and declarations I read in preparation for my inspection imply that nothing special is done for the vulnerable inmate population. During my inspection, I became aware that medical does have several small living units on the 2nd floor where they house medically fragile inmates (2B-2E, 2J, 2K, 2L). These inmates are medically fragile/ vulnerable inmates who need more intensive observation and treatment. The medical offices are on this floor. The ingress and egress to this unit is controlled, and medical has to approve anyone who is to be housed in this area. This area has a limited number of beds and currently is at capacity. During the course of my inmate interviews on this floor, several inmates complained that social distancing is not possible and that the living area, showers, and bathroom was dirty. After my interview with the inmates which occurred outside the living area for privacy reasons, I went into the living unit with Lt. Styles and we inspected the area for cleanliness. Lt. Styles and I both observed the living area and the bathroom to be in need of cleaning. Lt. Styles immediately directed staff to clean that living unit and bathroom. It is the policy of the jail that all inmates must wear masks and for the most part they were wearing masks, but some did not have masks on or they had the mask down below their nose. Individuals with COPD who have difficulty breathing are going to resist wearing these masks all the time because they restrict their breathing even further.
The third-floor houses Level 7 inmates and some Level 5 and 6 inmates. Given the current population levels in these units, it is not currently possible to property social distance under the current program structure. Most of the Pods have 35-38 inmates in a Pod with a capacity of 43.
The jail’s current policy directive is that all inmates are to receive free soap and that soap is not to be confiscated if the inmates have more than one bar. The vulnerable inmates that I interviewed complained that if they have money on their books, the housing officers will not allow them to have free soap. The inmates complained that it is not possible to social distance because the dayroom is crowded with 20 or so inmates at a time. In one of my multiple interviews with Chief Fields across several days, I asked him about this and he told me that they inmates can have free soap by policy. I also noted that in these living units, there were hand sanitizer dispensers installed on the walls, but the inmates told me they could not access the hand sanitizer because it is behind the officer’s desk which is out of bounds for inmates. The inmates did verify that recently there has been an increased effort to clean the living units more frequently. During my three days of inspection, I did observe a cleaning crew under the direction of Mr. Dwayne Johnson with biovex sprayers on their backs cleaning common areas throughout the jail. The inmates stated they were given cleaning supplies but the mops they were given to clean their cells were mops that everybody else had just used to clean their cells and they were concerned about cross contamination.
The fourth-floor houses Level 8 and 9 inmates, high profile inmates, overflow suicide watch, and two program pods. These living units are at or near capacity making social
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distancing impossible under the current dayroom use policy. At least twenty inmates are out in the dayroom area together during dayroom time, and the tables only seat 4 inmates. Throughout my inspection tour I observed inmates out in the dayroom and although 99 percent were wearing masks, there just is insufficient room to properly social distance. The vulnerable inmates that I interviewed had similar complaints regarding free soap, and social distancing. The inmates did acknowledge the stepped-up cleaning of the common areas in the last several weeks. The hand sanitizer dispensers were located behind the security officer’s desk and in an area that is out of bounds for inmates. The fifth floor is a dormitory floor consisting of three units of 32 bunks totaling 64 beds each. 5A houses inmates with security levels of 1-5. 5B is a program dorm of 32 bunks totaling 64 beds. 5C houses security levels 5-6 and has 32 bunks totaling 64 beds. Each of these dormitories were not at capacity. It appeared they were at about 50 – 60 percent of capacity. There was some social distancing in these units but there were two to a bunk, and the occupied bunks did not always have a vacant bunk in between them. The vulnerable inmates I interviewed in these units had similar complaints regarding the availability of free soap, social distancing, and cleaning supplies. The living units appeared to be clean. The inmates acknowledge a recent increase in the frequency of the cleaning of the common areas. The inmates told me that the jail had just put in the social distancing markers in the pill call line and on the floors of the living units just last week. I observed the inmates wearing their masks but not universally. The some of the inmates on all floors complained about their masks falling apart. They acknowledged that the jail cleaning crews offered to disinfect their masks with the disinfectant, but they did not want them to do it because of the chemical smell and it takes a while for the mask to dry. The sixth floor is a dormitory floor that consists of 3 living units of 32 bunks and 64 beds. It is currently empty. This area can house inmates who have security levels from 1-7.
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POPULATION MANAGEMENT
As of June 29, 2020, the inmate population of the Shelby County Jail is 1854 inmates. The jail has a capacity of 2600. The jail currently books 38 inmates a day on average and releases 24 inmates a day on average. The jail is an older jail that was built in the 1980’s and as a result, most of the cell doors are open bars are the top and are operated electronically via a control panel and Folger keys. Approximately 8 different law enforcement departments within Shelby County book arrestees in the jail. Additionally, surrounding counties will request that the jail take some of their inmates when they reach capacity. The jail also currently houses Tennessee Department of Correction inmates who come back to Shelby County for court matters.
Reducing the population of the jail in these unprecedented times is a challenge. The jail as a matter of law cannot refuse to book an arrestee who is medically fit for incarceration nor does the Sheriff have the authority to release inmates to alternative forms of custody such as active GPS, supportive housing in the community, shelters, recovery homes, home detention, work release, etc. The authority to do that rests solely with the Shelby County Court. Currently the jail has a case expeditor to try and move cases along, but from my observations during my inspection the current practice of the Shelby County Courts and the attorneys representing the inmates is creating a significant backlog that is contributing to the size of the jail population. Cases are being postponed multiple times for lengthy periods of times allegedly without the consent or time waiver of the inmates. The inmates are not being provided their discovery packets until months after their arrest and detention. Attorneys are not visiting their clients and discussing their cases. Offers are not being made in an effort to resolve cases. The vulnerable inmates that I interviewed during my inspection complained about the lack of information. The failure of their defense attorneys to visit them. The failure of their attorneys to consult with them regarding waiving their constitutional right to a speedy trial. The court allegedly is refusing to release inmates who are committed non-violent crimes and are not a current threat to public safety. Defense attorneys are allegedly failing to present medical evidence of their client’s serious medical condition to the court that would demonstrate the inmate is not currently a threat to public safety or to argue for placement in alternative forms of custody. They cannot present the evidence because they allegedly are not meeting with their clients and gathering the necessary evidence to present to the court.
In addition, the Tennessee Department of Correction is not accepting inmates who have been convicted and sentenced to prison. The jail houses state prison inmates who are back from prison to resolve some outstanding court matters.
Moreover, towns in Shelby county bring inmates to the jail when their jail reach capacity, and surrounding counties also bring inmates to the jail when their jails are allegedly at capacity.
As a result, the population continues to remain in the mid eighteen-hundreds with little room to enforce social distancing within the living units in the jail.
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STAFFING SHORTAGES Currently the jail has 157 security staff vacancies and the Sheriff’s Department is experiencing difficulty in their recruitment efforts to fill those vacancies. In addition, a recent staffing study that was completed found that the actual need for security staff is over 300 positions. Having significant staffing shortages like these is a contributing factor to consistently providing routine service to the vulnerable inmates in the jail.
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FINDINGS AND RECOMMENDATIONS
These findings and recommendations are not in order of importance.
FINDING #1
The Wellpath Covid-19 response plan is inadequate to protect the vulnerable inmates housed in the Shelby County Jail for the following reasons:
1. The newly booked inmate movement from medical isolation to the General Session and Criminal Courts and then back to the medical isolation unit completely undermines the integrity and purpose of the 21-day medical isolation that is designed to prevent the introduction of the Covid-19 virus into the jail population. The medically isolated Inmates are held in holding tanks in large groups with general population inmates for long periods of time (2-4 hours) multiple times in the 21-day isolation period. The medically isolated inmates are not tested at any time during their 21 day stay if they remain asymptomatic, nor are the inmates from general population who were already housed in the jail, but who have been exposed to a potentially positive asymptomatic inmate from medical isolation in the court holding tanks. This presents an unreasonable risk of harm to the medically vulnerable inmates who are held in the holding tanks with the asymptomatic medically isolated inmates.
2. Through no fault of Wellpath, their timed out non-testing strategy designed to prevent the spread of the Covid-19 virus in the jail, is rendered ineffective and useless as a result of the Court’s insistence on the presence of the medically isolated inmates in court or near court during the newly booked inmate’s 21 day medical isolation.
3. The jail does not cluster the vulnerable inmates in housing units together away from the general population. Wellpath does attempt to cluster the most medically fragile and vulnerable inmates in the medical area on the second floor, but the space is limited and the number of vulnerable inmates who are considered to be in a high-risk group is around 300 inmates.
RECOMMENDATION #1
1. It is recommended that Wellpath move to 14-day medical isolation with a nasal pharyngeal test-based strategy for symptomatic and asymptomatic inmates who are newly booked in the jail. The tests should occur between day 3 and day 6 for the initial test, and between day 10 and day 12 for the second test. All inmates in medical isolation must be asymptomatic for two consecutive days subsequent to
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the final test results being received before they can be released to general population.
2. It is recommended that Wellpath and the jail command staff identify living units where the vulnerable population can be sequestered away from the rest of the general population inmates without losing their privileges or dayroom time consistent with their security level. The most medically fragile inmates and the inmates that are at the highest risk of serious illness or death if they contract the Covid-19 virus should be housed near the medical unit in case there is a white alarm. Areas that could be considered are the third floor and the Annex. Custody might be able to open the sixth floor living units which have 192 beds for the Level 7 inmates currently housed on the 3rd floor, and move some 3rd floor inmates from the third floor to the empty cells in the Annex.
FINDING #2
1. Wellpath and the jail command staff have no authority to compel the court to discontinue the practice of insisting on inmate’s personal appearances in, at, or around the General Sessions Court or Criminal Court for initial appearances or to have their matters set over to another date. This practice increases the risk of inmate exposure and court personnel to Covid-19 infection because of the clustering of inmates in large holding cells and personal court appearances.
RECOMMENDATION #2
1. Consult with Dr. Bruce Randolph, Shelby County Health Officer, to see if he would be amenable to adding detention facilities to Shelby County Health Directive #7 or issuing a separate health directive for detention facilities in Shelby County. The language in the directive could read that “Any person detained in a detention facility should be isolated from the rest of the inmate population for 14 days if they are not eligible for ROR and cannot make bond. If the detained person is eligible for ROR or can make bond, they should be provided with a copy of Shelby County Health Directive #7 dated June 22, 2020 and instructed to follow that directive upon release. Nothing in this directive is intended to delay or impede the release of detained individuals if they are eligible to be released”. This is in the best interest of public health, and detained people are members of the Shelby County community and should be protected from unreasonable risks of infection just like non-detained persons in Shelby County.
2. Consult with the General Sessions Court and Criminal Court and ask the Judges to use the existing video technology located in holding tanks LLR and LLS for arraignments, bond hearings, and other court proceedings that would not violate the inmate’s 5th or 6th amendment rights. In March, the Tennessee State Supreme Court issued an emergency order suspending in person court appearances for two weeks, but I am unaware of the validity of this order today. Technology such a
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Skype, Zoom, Microsoft Team, Webex are also available and could be deployed in a cost effective and efficient manner while limiting the exposure of vulnerable inmates to infection. Ms. Best, the Sheriff’s Office Expeditor, is a former Judge and an attorney and could be very helpful in explaining the risk of spreading the Covd-19 virus among the inmate population if court continues to demand the inmates appear in, at or near the Courts in large holding tanks. The use of video arraignments, bond hearings, and other appearances would go a long way in reducing the risk of vulnerable inmates getting infected with the Covid-19 virus.
3. Wellpath leadership needs to be more aggressive and more vocal about protecting the vulnerable inmates in their care. There are several practices that take place in the jail that are potentially harmful to their patients, and they should not be allowed to continue. I recognize that Wellpath leadership feels powerless to insist that those harmful practices be discontinued, but in my expert opinion, Wellpath should have brought those harmful practices, at a minimum, to the attention of Dr. Bruce Randolph and documented that those harmful practices were brought to the attention of whatever entity they notified including the Court. Judges can be dismissive, but it is the responsibility of the medical provider to protect the health of the inmates in their charge and to speak up and advocate for the safety of their patients. I know this is an uncomfortable recommendation, but it is the right thing to do. Doing the right thing is not always easy, but it is always the right thing to do.
FINDING #3
1. The Shelby County Jail is not maximizing its efforts to enforce social distancing in its living units and should consider rethinking how it programs inmates in all areas of the jail.
RECOMMENDATION #3
1. Jail Command Staff could consider allowing fewer inmates in the dayroom area at the same time. By reducing the number of inmates in the dayroom at one time while continuing to enforce the mandatory mask order for staff and inmates who are in the dayroom, the risk of infecting others with the Covid-19 virus will be reduced. As an example, only allowing 6-8 inmates out in the dayroom at the same time on the 3rd, 4th, 5th, and 6th floors vs allowing 20 inmates out in the dayroom at the same time will substantially reduce the risk of person to person infection. In the dormitory living units, staff can put some inmates on bunk status until it is time for them to program in the dayroom. It is critical that the security officers enforce the directive that inmates properly wear masks. I did not physically go into the asymptomatic medical isolation units, but those inmates should only be coming out alone with masks properly worn until their medical isolation is lifted.
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FINDING #4
1. During my jail inspection, it was apparent to me that living unit security officers are not following the directive that ALL inmates should be receiving free bars of soap not just the indigent inmates.
RECOMMENDATION #4
1. At the daily shift supervisors meeting, jail command staff should issue a directive to the floor Sergeants, Lieutenants, and Captains requiring them to direct living unit security staff to distribute free soap to the inmates in every unit twice a week until further notice. Furthermore, living unit security staff should provide each new inmate who enters the living unit with an information sheet that provides the inmate with Covid-19 education materials and a statement that they are entitled to free soap twice a week and that they will not be written up if they have more than one bar of soap in their possession. If security staff do not follow this directive, they should be disciplined.
FINDING #5
1. During my jail inspection, I found that the mops used for cleaning were not disinfected frequently enough and the mop heads changed frequently enough. Clean towels for cell cleaning were not available to inmates. In some living units, it was obvious that none of the housing officers on any of the three watches were ensuring the living units, dayroom areas, and the bathrooms were being mopped and scrubbed. Spraying Biovex on the toilets and in the bathrooms is inadequate. The floors need to be mopped regularly and the toilets and showers scrubbed regularly. This was not the case in every unit, but it was certainly the case in some.
RECOMMENDATION #5
1. Twice a week, every living unit in the jail should have a deep cleaning overseen by the security officer and the living units should be inspected by the floor sergeant. Inmates should have the opportunity to clean their cells every day at a specified time that does not take away from their dayroom time. If the living unit is not spic and span, the inmate’s dayroom time should be suspended until such time as the living unit is spic and span. In addition, the living unit security officer should be disciplined for not keeping their living unit clean. Taking pride in your work area is a fundamental principal and best practice for a paramilitary organization.
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FINDING #6
1. During my inspection, I did see episodic violations of the mandatory mask policy for staff and inmates. I also witnessed Sergeants and Lieutenants not strictly enforcing the mandatory mask directive. I also witnessed security staff that had to be told repeatedly to pull their mask up over their nose. Staff should not have to be told two or three times to properly. In the intake/booking area, I witnessed an inmate enter the interior booking area without a mask. He was allowed to walk around the booking area without a mask for some time. A Memphis Police Officer also was not wearing his mask correctly.
2. In my expert opinion, some floor Sergeants, and Lieutenants are over familiar with their subordinates. By that I mean, they act like friends rather than the supervisor of the rank and file security staff. As a result, the rules are not rigorously enforced, rank and file security staff are not held accountable and disciplined for not following the Covid-19 directives. In one instance, 3 rank and file security staff were in a Sergeant’s office with the Sergeant and they did not have their masks on and they were not properly social distancing. This should never happen.
RECOMMENDATION #6
1. Floor Sergeants, Lieutenants, and Captains need to be hypervigilant in enforcing the mandatory mask directive for staff and inmates. In fact, they need to be hypervigilant in enforcing all of the Covid-19 policies, procedures, and practices.
2. It is critical that supervisors maintain their professional distance from subordinates. Overfamiliarity breeds contempt and as a result supervisors become unwilling to enforce policy and discipline non-compliant subordinates. This will poison the well and all the great work that management has done to fight the spread of this virus will go for naught, and many of the vulnerable inmates will unnecessarily become seriously ill and die.
3. I recommend that Chief Fields and Assistant Chief Hubbard increase their presence on the decks and spot check compliance with the Covid-19 policies, procedures, and practice including the cleanliness of the living units, dayrooms, and bathrooms.
4. I recommend that the jail consider creating a compliance unit whose sole responsibility is to audit compliance with department policies, procedures, and practices. This unit can develop an internal audit tool and audit the jail quarterly for compliance. A quarterly report then should be filed with command staff and a corrective action plan should be developed to correct any identified deficiencies. This is important to protect the vulnerable inmates from an unreasonable risk of harm due to policy violations.
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FINDING #7
1. The Covid-19 educational materials are not at a 6th grade reading level. The materials are posted on the wall, and there is a Covid-19 education cartoon that is played at 0800 and 1500 hours every day on the living unit TVs. Many inmates in the jail are learning disabled, developmentally disabled, and seriously mentally ill and do not understand the word or concepts on the Covid-19 material.
RECOMMENDATION #7
1. Create a Covid-19 information sheet that is at a 6th grade reading level. This information sheet should be provided to every inmate who is booked in the county jail and again when they reach their assigned housing unit after being taken off medical isolation. It should also be posted on the wall of every living unit, and the living unit security officer should make sure the inmate understands the information on the sheet when they orient the inmate to the living unit rules and regulations. This information sheet should be available in audio and large print for the visually impaired and blind.
FINDING #8
1. Cleaning supplies for high touch surfaces such as telephones and kiosks are not readily available for inmates to use after each inmate uses those high touch items.
RECOMMENDATION #8
1. Place an EPA approved cleaning solution in a spray bottle with a supply of paper towels in an area in the living unit where inmates can readily access it for cleaning the phone, kiosk and other surfaces after every use. The jail is a Direct Supervision Jail, and security staff are in the living units and can supervise its use or assign a pod worker to that responsibility. Many inmates are indigent and assigning inmates with a pay number at .20-.50 cents an hour will allow the inmate pod worker job to be attractive. First Watch and Second watch can each have their own pod workers to assist the housing unit security officer with the management of the cleaning supplies.
FINDING #9
1. Some inmate masks I observed were in disrepair and were dirty. Inmates only are issued a single mask.
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RECOMMENDATION #9
1. Issue the inmate population two cloth masks one of which can be exchanged with the weekly laundry exchange. During laundry, the masks should be inspected and replaced if they are in disrepair. Masks should not be sprayed with Biovex. The manufactures warnings state that Biovex is considered to be a mild irritant and can cause irritation of the eyes, ears and throat. Vulnerable inmates may have an adverse reaction to this substance being sprayed on their masks especially those with COPD or moderate to severe asthma.
FINDING #10
1. Wellpath does not test for Intellectual Disabilities or Learning Disabilities. Currently a Psychiatrist interviews inmates who are suspected to be intellectually disabled, but there is no testing for learning disabilities. Identifying the intellectually disabled and the learning disabled is important for informed consent as well as effective communication and victimization concerns.
RECOMMENDATION #10
1. Wellpath may want to consider hiring a Clinical Psychologist to test for intellectual disabilities and learning disabilities. Some experts have found that there may be as many as 2-4% of the inmate population that are intellectually disabled with a much smaller percentage being profoundly intellectually disabled needing high adaptive supports and protection from victimization.
FINDING #11
1. During my inspection and interviews, I came to the conclusion that there is no concentrated and coordinated effort to assemble and present information to the courts regarding an inmate’s medical conditions that may make him vulnerable to serious illness or death while housed in the jail. Moreover, while I find Mischelle Best, the Court Expeditor, to be hard working and passionate about her job, I am concerned she is spread too thin and has to do the job of a competent criminal defense attorney in addition to her other duties. Nor is there any consistent multidisciplinary effort within the jail to secure alternative custody venues for vulnerable inmates. I found that a significant number of these inmates had very serious charges, but some have been charged with garden variety felonies and, in my expert opinion, because of their medical condition are not a current threat to public safety if they were placed in a structured and supervised environment.
RECOMMENDATION # 11
1. Create a multi-disciplinary task force within the jail to present the medical conditions of the inmates who along with their non-violent offenses make then
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good candidates for release to alternative custodial settings. Technology has come a long way and alternatives custodial environments work well in many other states and jurisdictions. .
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CONCLUSION
During the course of my jail inspection, I came to believe that the Shelby County Jail leadership team are consummate professionals who do embrace and promote the “care” component of the inmates in their custody, care, and control. They repeatedly told me that they were open to making any changes that would improve their operation and increase the health and safety of all the inmate population but especially the vulnerable inmate population. Their ability to decrease the size of the inmate population in the jail is limited by their authority to limit the intake of new inmates and by their complete lack of authority to place any inmates in alternative custodial environments. The fact that the Shelby County Jail is accredited by the ACA and the National Commission on Correctional Health Care is evidence of their desire to have a well-run jail that delivers patient centered healthcare. What I found during my inspection were opportunities for improvement in some critical areas that are plagued by episodic violations of wellintentioned and well thought out policies procedure and practices designed to maximize the protection of the vulnerable inmate population.
The Shelby County Jail medical provider, Wellpath, is also dedicated to delivering patient centered, competent medical care to all the inmates but especially to the medically fragile inmates who are the most vulnerable to serious illness or death from the Covid-19 virus. The effort of Wellpath to deliver consistent care to the inmates with chronic illnesses and serious medical conditions is hampered by the unwillingness of outside hospitals and specialty clinics to treat inmates. I find that deeply offensive and dangerous, but I am hopeful that Dr. Bruce Randolph can assist Wellpath and the Shelby County Jail in expanding the medical resources available to them in the community to treat those inmates who are in desperate need of treatment of their chronic diseases and serious medical conditions. The inmates in the Shelby County Jail are members of the Shelby County Community and most of them will return to the community in less than 18 months. Ironically those same inmates who are currently being refused treatment by community providers and hospitals will seek treatment at those very same hospitals without shackles and will not be refused treatment.
Given the reality of what is occurring with the Shelby County Courts and the inability of the jail to reduce its population, the jail and its medical provider must adjust their Covid19 response strategy for the protection of all inmates but especially the vulnerable inmates.
The jail is a high-risk environment for these vulnerable inmates, and I am hopeful that my recommendations will be adopted in order to reduce their risk of infection and serious illness or death.
No jail will ever be perfect in performing its duties, but the Shelby County jail must embrace the necessary changes to its Covid-19 response strategy or risk losing control of
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its jail to a plethora of class action lawsuits, restraining orders, and/or population caps. The choice is theirs to make. Thank you for the opportunity to work on this very important project.
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Signature Respectfully submitted,

Mike Brady Director Sabot Consulting

June 29, 2020 Date

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EXHIBIT 1 – INSPECTION ORDER
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 Busby v. Bonner, Slip Copy (2020)

2020 WL 4668756 Only the Westlaw citation is currently available. United States District Court, W.D. Tennessee,
Western Division.
Favian BUSBY and Michael Edgington, on their own behalf and on behalf of those similarly situated, Plaintiffs, v.
Floyd BONNER, Jr., in his official capacity, and Shelby County Sheriff’s Office, Defendants.
No. 20-cv-2359-SHL |
Signed 07/24/2020
Attorneys and Law Firms
Jeffery P. Robinson, Pro Hac Vice, Amreeta Mathai, Pro Hac Vice, American Civil Liberties Union of Tennessee, Andrea Woods, Pro Hac Vice, ACLU Criminal Law Reform Porject ACLU Criminal Law Reform Project, Edward Robinson, Jr., Pro Hac Vice, Jonathan Silberstein-Loeb, Pro Hac Vice, Meredith Borner, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Joshua B. Spickler, Joshua Spickler, Just City, Brice Moffatt Timmons, Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, Maria Morris, Pro Hac Vice, American Civil Liberties Union of Tennessee, Washington, DC, Stella Marie Yarbrough, Thomas Hauser Castelli, American Civil Liberties Union of Tennessee, Nashville, TN, Zoe Brennan-Krohn, Pro Hac Vice, American Civil Liberties Union of Tennessee, San Francisco, CA, for Plaintiffs.
2241, AUSA, U.S. Attorney’s Office, Bridgett L. Stigger, Marlinee Iverson, Shelby County Attorney’s Office, Memphis, TN, J. Austin Stokes, James I. Pentecost, Nathan Daniel Tilly, Pentecost, Glenn, Mauldin & York, PLLC, Jackson, TN, for Defendants.
ORDER DENYING DEFENDANTS’ SECOND MOTION TO DISMISS
1

SHERYL H. LIPMAN, UNITED STATES DISTRICT JUDGE
*1 Before the Court are Defendants’ Motion to Dismiss First Amended Petition (“Second Motion to Dismiss”), (ECF No. 78), filed June 30, 2020, Plaintiffs’ Response, (ECF No. 113), filed July 15, 2020, Defendants’ Reply, (ECF No. 119), filed July 20, 2020, and the Amicus Brief of the State of Tennessee, (ECF No. 118), filed July 20, 2020. For the following reasons, the Motion is DENIED.
BACKGROUND
On May 20, 2020, Plaintiffs filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Class Action Complaint for Declaratory and Injunctive Relief, (ECF No. 1), as well as a Motion for Temporary Restraining Order (“TRO Motion”), (ECF No. 2). Plaintiffs allege that their constitutional rights, under the Fourteenth Amendment, and their statutory rights, under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Rehab Act”), are being violated. (ECF No. 2 at PageID 53-59.)
On May 26, 2020, along with their Response to the TRO Motion, Defendants filed a Motion to Dismiss. (ECF No. 25.) Defendants raised three grounds for dismissal of Plaintiffs’ Petition, arguing that: (1) the Petition is not cognizable under 28 U.S.C. § 2241 because it challenges the conditions of confinement rather than the fact or duration of confinement, (2) Plaintiffs have yet to exhaust state law remedies and (3) Plaintiffs’ have failed to comply with the requirements of the Prison Litigation Report Act’s (“PLRA”). After the Motion to Dismiss was fully briefed, (ECF Nos. 35, 37), this Court considered each of the arguments, but denied the Motion on June 10, 2020, (ECF No. 38).
On June 16, 2020, Plaintiffs filed an Amended Petition, (ECF No. 50), adding two Named Plaintiffs and the related factual allegations. Otherwise, the Amended Petition appears to be the same as the original one. Now, Defendants target the Amended Petition with their Second Motion to Dismiss. In the latest Motion, Defendants again argue that Plaintiffs have failed to exhaust their claims in state court, that the Amended Petition is an improper

Busby v. Bonner, Slip Copy (2020)
challenge to the conditions of confinement rather than the fact of confinement and that Plaintiffs failed to abide by the PLRA. In addition, Defendants argue for the first time that the unconstitutional punishment claim (claim one of the Amended Petition) and the ADA and Rehab Act claims (claims three and four) should be dismissed for failure “as a matter of law,” (ECF No. 78-1 at PageID 1143-46), presumably under Fed. R. Civ. P 12(b)(6) or 12(c), (ECF No. 119 at PageID 2720).
Because the Court will not revisit rulings it has already made and is not persuaded by Defendants’ new arguments, the Motion is DENIED.
ANALYSIS
Defendants’ Second Motion presents two significant problems. First, as noted above, three of Defendants’ arguments have already been considered and decided. Second, Defendants raise arguments here that should have been made in their First Motion to Dismiss. Moreover, the new arguments are unpersuasive.
The first problem arises because this Motion runs afoul of the caution against redundancy and the doctrine of the “law of the case.” See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–16 (“[T]he doctrine [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case”); Edmonds v. Smith, 922 F.3d 737, 739 (6th Cir. 2019) (noting that “findings made at one stage in the litigation should not be reconsidered at subsequent stages of that same litigation”). Even though the Court previously decided these issues, Defendants contend that repeating their arguments is appropriate for two reasons: (1) the Amended Petition added two Named Plaintiffs and “additional facts,” although it is unclear what additional facts were added, and (2) the Court’s ruling, according to Defendants, was based on a misunderstanding as to what procedures are available for detainees to challenge the constitutionality of their confinement. (ECF No. 119.) Neither argument carries the day.
*2 First, that the Petition was amended does not excuse Defendants’ needless filing. The Amended Petition added no claims or legal theories, and thus changed nothing as
2

to the previous ruling. Indeed, the argument that Defendants should be able to raise the same legal arguments as to new Plaintiffs directly contradicts the doctrine of “the law of the case.”
Moreover, to the extent Defendants rely on an alleged misunderstanding by the Court in the first Order, the Motion should be one for reconsideration, not a new Motion. However, Defendants should NOT construe that statement as an invitation for yet another Motion, as the Court has considered this issue and ruled. In its previous ruling, the Court was well aware of detainees’ ability to file motions related to bail, and to appeal those rulings. However, that statutorily-defined standard process does not include the inmate health risks during confinement among the factors to be considered. Thus, exhaustion is not required here. See O’Sullivan v. Boerckel, 526 U.S. 838, 847-848 (“[S]tate prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past”); Goar v. Civiletti, 688 F.2d 27, 28-29 (6th Cir. 1982) (exhaustion is not required where the state court remedy is “inadequate or cannot provide the relief requested”).
Defendants also emphasize in their Reply that Rule 12(g)’s ban on successive motions to dismiss does not apply to the defenses of failure to state a claim upon which relief can be granted or lack of subject matter jurisdiction. (ECF No. 119 at PageID 2720.) That may be, but Defendants miss the point. Defendants are not merely raising those defenses again, but they are repeating the same case law, facts and legal theories. These arguments have been addressed and have grown stale. Given that the Court previously ruled and detailed its reasons for rejecting that earlier round of Defendants’ arguments, (see ECF No. 38), the Court will not revisit its prior Order.
As for the State of Tennessee’s Amicus Brief, it contends that Tennessee has available state court remedies and Plaintiffs must exhaust those remedies first. Put simply, the Amicus Brief repeats Defendants’ arguments, which is not helpful. See, e.g., Supreme Court Rule 37 (“An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored”). The Brief does not change this outcome.
The second problem with this Second Motion to Dismiss

Busby v. Bonner, Slip Copy (2020)
arises out of the fact that Defendants include arguments that they inexcusably neglected to assert in their original Motion to Dismiss. Those include arguments that (1) the unconstitutional punishment claim fails as a matter of law because it is identical to Plaintiffs’ unconstitutional confinement claim and (2) the disability claims fail because Plaintiffs allege insufficient facts and violations of federal disability laws do not merit habeas relief. Both arguments fail because they should have been raised before but also because they are without merit.
As an initial matter, there is no reason Defendants could not have raised these two arguments in their original Motion to Dismiss.1 See 5C CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1388 (3d ed. 2004) (“The filing of an amended complaint will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading”). Pointedly, Federal Rule of Civil Procedure 12(g)(2) states, “Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under [Rule 12] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). The ban on successive Rule 12 motions is “salutary in that it works against piecemeal consideration of a case.” Fed. R. Civ. P. 12(g) advisory committee’s note to 1966 amendment.
*3 Still, out of an abundance of caution, the Court considers these two arguments, but finds neither of them convincing. First, a claim of unconstitutional punishment is distinct from a claim of unconstitutional confinement. Only pretrial inmates can bring the former claim while both pretrial and convicted inmates may bring the latter claim. See Bell v. Wolfish, 441 U.S. 520, 523 (1979). Besides, unconstitutional punishment claims are brought under the Due Process Clause of the Fifth Amendment (or the Fourteenth Amendment, for state detainees); unconstitutional confinement claims are brought under the Cruel and Unusual Punishment Clause of the Eighth Amendment. See id.; J.H. v. Williamson Cty., Tennessee, 951 F.3d 709 (6th Cir. 2020). Indeed, a pretrial inmate can file a grievance under both causes of action. See, e.g., Williamson Cty, 951 F.3d 709. Therefore, Defendants fail to show how Plaintiffs’ unconstitutional punishment claim fails as a matter of law.
Second, not all disability claims require proof of intentional discrimination, nor is habeas relief precluded for those asserting disability claims. As to the question of intent, a public entity can violate Title II of the ADA or
3

Section 504 of the Rehabilitation Act—the two statutes under which Plaintiffs assert their disability claims—without acting with discriminatory intent. See Ability Center, Toledo v. City of Sandusky, 385 F.3d 901, 910 (6th Cir. 2004) (“Title II imposes affirmative obligations on public entities and does not merely require them to refrain from intentionally discriminating against the disabled”); Alexander v. Choate, 469 U.S. 287, 296 (1985) (noting that “much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a discriminatory intent”).
As for habeas relief, inmates can seek such relief when asserting a federal disability discrimination claim. See 28 U.S.C. § 2241(c)(3) (establishing the writ of habeas corpus for inmates “in custody in violation of the Constitution or laws or treaties of the United States”) (emphasis added); see also Mitchell v. Metrish, 2005 WL 2397031, at *6 (E.D. Mich. Sept. 28, 2005) (considering disability claims under a writ of habeas corpus). As Defendants point out, certain district courts have declined to consider habeas relief when examining disability claims, (see ECF No. 78-1 at PageID 1125), but, in the absence of a Sixth Circuit decision to the contrary, this Court defaults to a textualist reading of § 2241’s scope. Such a reading appears particularly apropos here, where Plaintiffs do not allege that there is an accommodation that they are not being afforded, but rather that they cannot be accommodated, and thus habeas relief is the only option. Given that allegation, Plaintiffs have stated a claim upon which relief could be granted.
CONCLUSION
For these reasons, Defendants’ Second Motion to Dismiss is DENIED.
IT IS SO ORDERED, this 24th day of July, 2020.
All Citations
Slip Copy, 2020 WL 4668756

Busby v. Bonner, Slip Copy (2020)

Footnotes

1

Defendants did raise the ADA and Rehab Act arguments before but in a reply brief, (ECF No. 37), so they were

ignored.

4

 
 Busby v. Bonner, --- F.Supp.3d ---- (2020)

2020 WL 4668757 Only the Westlaw citation is currently available. United States District Court, W.D. Tennessee,
Western Division.
Favian BUSBY and Michael Edgington, on their own behalf and on behalf of those similarly situated, Plaintiffs, v.
Floyd BONNER, Jr., in his official capacity, and Shelby County Sheriff’s Office, Defendants.
No. 20-cv-2359-SHL |
Signed 08/07/2020
Synopsis Background: Pre-trial detainees filed a petition for injunctive habeas relief arguing that their constitutional and statutory rights were being violated by the conditions in their jail due to the COVID-19 pandemic.
Holdings: The District Court, Sheryl H. Lipman, J., held that:
detainees sufficiently alleged that jail conditions were incurable, and
poor jail conditions were not incurable.
Motion denied.
Procedural Posture(s): Petition for Writ of Habeas Corpus; Motion for Preliminary Injunction.
Attorneys and Law Firms
Jeffery P. Robinson, Pro Hac Vice, Amreeta Mathai, Pro Hac Vice, Andrea Woods, Pro Hac Vice, American Civil Liberties Union of Tennessee, Edward Robinson, Jr., Pro Hac Vice, Jonathan Silberstein-Loeb, Pro Hac Vice, Meredith Borner, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Joshua B. Spickler, Joshua Spickler, Just City, Brice Moffatt Timmons, Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, Maria Morris, Pro Hac Vice, Washington, DC, Stella
1

Marie Yarbrough, Thomas Hauser Castelli, American Civil Liberties Union of Tennessee, Nashville, TN, Zoe Brennan-Krohn, Pro Hac Vice, American Civil Liberties Union of Tennessee, San Francisco, CA, for Plaintiffs.
2241, AUSA, U.S. Attorney’s Office, Bridgett L. Stigger, Marlinee Iverson, Shelby County Attorney’s Office, Memphis, TN, J. Austin Stokes, James I. Pentecost, Nathan Daniel Tilly, Pentecost, Glenn, Mauldin & York, PLLC, Jackson, TN, for Defendants.
ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
SHERYL H. LIPMAN, UNITED STATES DISTRICT JUDGE
*1 Before the Court are Plaintiffs’ Motion for Temporary Restraining Order (“Motion for Preliminary Injunction”1), (ECF No. 2), filed May 20, 2020, Defendants’ Response, (ECF No. 27), filed May 26, 2020, Defendants’ Proposed Findings of Fact and Conclusions of Law, (ECF No. 112), filed July 15, 2020, Plaintiffs’ Proposed Findings of Fact, (ECF No. 114), also filed July 15, 2020, Defendants’ Response to Plaintiffs’ Findings of Fact, (ECF No. 120), filed July 20, 2020 and Plaintiffs’ Response to Defendants’ Proposed Findings of Fact and Conclusions of Law, (ECF No. 121), filed July 20, 2020. For the following reasons, the Motion for Preliminary Injunction is DENIED.
BACKGROUND
In their Motion for Preliminary Injunction, Plaintiffs seek urgent habeas and injunctive relief to protect medically vulnerable people and people with disabilities detained before trial2 at the Shelby County Jail (“Jail”), given the coronavirus pandemic currently devastating our community and the world. Plaintiffs allege that their

Busby v. Bonner, --- F.Supp.3d ---- (2020)
constitutional rights, under the Fourteenth Amendment, and their statutory rights, under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Rehab Act”), are being violated because of their detention in the Jail during this pandemic. (ECF No. 2 at PageID 53-59.)
Specifically, Plaintiffs argue that the Defendants’ non-test-based strategy for preventing the spread of COVID-19 at the Jail is reckless, particularly in light of the potential of asymptomatic transmission. (ECF No. 121, PageID 2754, 2772.) This situation is further complicated, according to Plaintiffs, by inadequate screening procedures for both new detainees and jail staff. (ECF No. 114, PageID 2371-72.) Additionally, Plaintiffs aver that it is not physically possible to maintain the CDC recommended six feet distance from other people while detained, due to the congregant nature and small spaces of the Jail. (Id. at PageID 2349-56.) Furthermore, Plaintiffs contend that, because the medical isolation unit is enclosed by bars rather than solid walls and doors, there is no actual physical separation between those with the virus and other adjacent housing units, and the virus may freely spread through common areas and infect those who have not yet been exposed. (ECF No. 114, PageID 2365-66.) Insufficient hygiene supplies and practices also add to the risks faced by Plaintiffs. (ECF No. 2, PageID 49.)
*2 According to Plaintiffs, the confinement of medically vulnerable people in a congregate setting like the Jail is itself unconstitutional. (ECF No. 2, PageID 47.) In addition, they allege that, given all of the issues described above, the way in which this particular Jail houses pre-trial detainees is unconstitutional and cannot be remedied, or cannot be remedied in a timely manner. Plaintiffs aver that the only available sufficient remedy is release from the Jail’s confines. Defendants contend in response that they are following all applicable standards, and acting reasonably under the circumstances. (ECF No. 27.) Moreover, Defendants argue that any deficiencies are capable of being remedied, thus defeating relief pursuant to a writ of habeas.
On June 10, 2020, the Court conditionally certified those detainees at high-risk for an adverse reaction should they contract COVID-19 as class members, and disabled detainees as subclass members. (ECF No. 40.) On June 16, 2020, Plaintiffs filed an Amended Petition, adding two Named Plaintiffs and related factual allegations. Otherwise, the Amended Petition appears to be the same as the original.
2

FINDINGS OF FACT3
For many months now, we have all operated in a world dominated by the novel coronavirus known as COVID-19. The resulting pandemic has changed the way we all live our lives. It is highly contagious and potentially deadly. Those deemed to be “medically vulnerable” are particularly at risk for serious complications or death if they contract the virus.4 Amid this pandemic, “[o]perating a large county jail such as the Shelby County Jail is challenging, complex, and labor intensive.” (ECF No. 80, PageID 1173.) Plaintiffs argue that the Jail’s continued confinement of them violates the Constitution and laws of this country.
Because of the dramatically different descriptions of the way in which detainees were being confined at the Jail when this matter was filed, the Court allowed the factual record related to this Motion to be further developed. (ECF No. 45.) As this record has been developed, conditions at the Jail have changed, to some degree as a result of an inspection ordered by the Court. After receiving a list of proposed names, the Court appointed an expert as the Court’s Independent Inspector, Mr. Mike Brady. Mr. Brady’s report was filed on June 30, 2020, (ECF No. 80), and he testified about those findings at a hearing on July 1, 2020, (ECF No. 84). In addition, the Court permitted Plaintiffs to conduct some expedited discovery. (ECF Nos. 48, 49, 56.) Then, on July 10 and 13, the Court held an evidentiary hearing, with proof presented by both Parties. The Parties’ briefing followed.
Based on the Independent Inspector’s findings, the testimony offered at the evidentiary hearing and the documents offered into evidence, the Court finds the following facts as accurate descriptions of the way in which people are being detained at the Jail. The issues addressed herein are those highlighted by Plaintiffs as problematic.
I. Efforts to Prevent Virus Entry into the Facility The first line of defense to protect the medically-vulnerable from COVID-19 is to prevent the virus’s entry into the Jail. When new detainees are brought into the Jail, they are asked a series of screening

Busby v. Bonner, --- F.Supp.3d ---- (2020)
questions and their temperatures are taken. (ECF No. 80.) If a detainee shows symptoms of COVID-19, he is escorted to a tent area on the far end of the Jail’s sally port. There, healthcare staff in hazmat suits examine the arrestee to see if he requires a hospital stay. The detainee is also tested, and, if hospitalization is unnecessary, he is isolated at the Jail for 21 days with other detainees who have tested positive. (ECF No. 80; ECF No. 84 at PageID 1242-44.)
*3 If an incoming detainee exhibits no symptoms of COVID-19, he is given a mask, placed in a holding cell and booked. The arrestee is supposed to be quarantined for 21 days, held with others without symptoms who were arrested on the same day. (ECF No. 84 at PageID 1242-44.) This is a decidedly non-testing (“timing out”) strategy to prevent entry of the virus into the facility, but is a viable approach. If the necessary steps are strictly followed, this timing-out strategy can prevent entry of the virus into the Jail. (ECF No. 80.)
The screening of Jail staff coming to work each day includes filling out a questionnaire and having their temperatures taken. (ECF No. 107-1.) These staff screening measures appear “to be fully compliant with CDC recommendations,” according to Plaintiffs’ expert, Dr. Homer D. Venters. (Id.)
If all incoming staff and detainees are screened, and the new detainees are truly quarantined for 21 days, then the Jail’s preventative measures against entry of the virus into the Jail would be adequate. Yet, there was a gap. According to the Independent Inspector, during their initial quarantine, detainees were often summoned to the General Sessions Courts and the Criminal Courts of Shelby County for in-person hearings. (ECF No. 80 at PageID 1181.) Thus, the detainees would walk from their isolation units through a tunnel (connecting the Jail to the state courts) to holding cells, to wait for their appearance before the state courts. (Id.) As many as 25 detainees were packed in a holding cell, for up to 4 hours, without everyone donning a mask or social distancing. (Id.) Much of the time, these transfers were needless as detainees were “handed a piece of paper and told their case has been reset for another date.” (Id.) Through this shuffling back and forth to the state courts, the “quarantined” new detainees mingled with the general population detainees. As the Independent Inspector found:
The newly booked detainee
3

movement from medical isolation to the General Session and Criminal Courts and then back to the medical isolation unit completely undermines the integrity and purpose of the 21-day medical isolation that is designed to prevent the introduction of the Covid-19 virus into the jail population.
(ECF No. 80.) Because of these back and forth transfers, incoming detainees were not effectively quarantined. The comingling of incoming detainees with the general population rendered the Defendants’ timing out strategy futile.
After the Independent Inspector highlighted this glaring gap in the Jail’s timing-out strategy (calling it “ineffective and useless”) on June 29, Defendants apparently took steps to correct the gap. (ECF No. 11 at PageID 2236-38.) At the July 13th hearing, the Administrative Judge for the County’s Criminal Court, Judge John W. Campbell, testified that the number of detainees being transferred to court has been “cut dramatically” since the prior week due to certain procedural changes on the state courts’ part. (Id.) According to Judge Campbell, not only are detainees now summoned to the state courts only when they will be seen that day, they are summoned just when the state court judges are ready for them. (Id.) Judge Campbell also testified that, by the end of that week, the County Criminal Court would have five videoconferencing rooms so even fewer pretrial hearings would require in-person appearances. (Id.) Moreover, Defendants appear to have placed chairs along with six-foot markings within the tunnel so detainees being transported to the state courts are socially distanced from one another. (ECF No. 101-1.) While it remains unclear whether these measures allow the Jail to fully maintain the integrity of the quarantining of new detainees, they are significant steps in the right direction and indicate that the issue is capable of being addressed successfully.
II. Efforts to Identify and Isolate COVID-19 within the Jail *4 Even with the best of efforts, entry of the virus into the Jail is inevitable, so there must also be efforts to address

Busby v. Bonner, --- F.Supp.3d ---- (2020)
those who are exposed to it and those who contract it. As for isolating detainees who are COVID-19 positive, Defendants use Housing Unit 2A as a medical isolation unit and 5A as the quarantine unit. (ECF No. 107-1 at PageID 1856-58.) Isolation refers to the practice of secluding infected or symptomatic people; quarantine refers to the practice of secluding people who have been exposed to others with the virus but who display no symptoms themselves. (ECF No. 107-1 at PageID 1856.) Like other housing units in the Jail, the units used for isolation and quarantine are unsealed, meaning that the entryway into the unit has bars, not solid doors. Plaintiffs’ expert expressed concerns that, due to the open nature of isolation unit, staff and detainees are dangerously exposed to COVID-19:
Despite being called a medical isolation unit, 2A is open to the hallway and the mental health unit across the hall, where patients with serious mental illness and those with mental health emergencies are being held. All cells in 2A are comprised of open bar windows on the doors, meaning that there is free flow of air (and virus) from people inside 2A to anyone in the hallway and across the hall, which is approximately 10 feet across. There is no closed door anywhere to separate patients with COVID-19 from staff or other detainees on this floor.
(ECF No. 107-1 at PageID 1856.)
Notably, the Court was not presented with any proof as to how far COVID-19 can spread through the air in an indoor facility. In addition, there is no evidence in the record related to the way in which the spread of the virus is impacted by a building’s air flow system, or a description of the airflow within the Jail. Given the CDC’s recommendation of a 6 foot distance between people (see infra n.5), the general compliance with wearing masks in the Jail (id.), and the lack of testimony as to the impact of the air flow in the Jail, the Court cannot conclude as a factual matter that the open bars create a risk of transmission of the virus to neighboring housing units or others outside 2A.
4

III. Efforts to Prevent Unknowing Viral Spread from Asymptomatic Carriers One of the core principles of a COVID-19 operational response model is social distancing. (Brady Report, ECF No. 80, Pg.ID 1173.) The CDC defines “social distancing” as “the practice of increasing the space between individuals and decreasing their frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic).”5 Plaintiffs’ allegations related to social distancing raise two concerns: the ability of detainees to maintain an adequate distance from one another within the facility and the efforts by Defendants to reduce the overall population so that there are fewer detainees and thus more space between them.
As to questions related to detainees’ ability to maintain distance among themselves, Plaintiffs presented testimony showing social distancing lacking in the following areas: sleeping arrangements (ECF No. 114, PageID 2350-52), eating (ECF No. 114, PageID 2352), use of the phones (ECF No. 114, PageID 2353), pill call (ECF No. 114, PageID 2353), movement from one part of the jail to another (ECF No. 2, PageID 48) and restrooms (ECF No. 2, PageID 171). As one example, Mr. Russell Leaks testified that, during pill call, while detainees walk up to the bars one at a time to receive their pills, 16-20 of the detainees in the pod line up in close proximity to wait their turn, rendering the social distancing strategy useless. (ECF No. 108, PageID 1943-44.)
*5 Defendants maintain that, while detainees are not always able to maintain six feet of separation from others, they have taken adequate measures to mitigate the risks posed by close proximity. Defendants placed markings six feet apart in housing units and near telephones and other high use areas, to encourage detainees to maintain their distance from each other. (ECF No. 111, PageID 2153.) When serving meals, only three cells are let out at a time and Defendants have relaxed regulations which now allow detainees to eat inside their own cells. (ECF No. 111, PageID 2153, 2163.) Pill calls, as described by Mr. Leaks, are performed one at a time. In general, Jail staff members also regularly encourage detainees to practice social distancing throughout the Jail. (ECF No. 111, PageID 2153.)

Busby v. Bonner, --- F.Supp.3d ---- (2020)
Though the logistics of detainees’ sleeping arrangements differ depending on their assigned pod, the evidence suggests that many detainees sleep close to one another. For instance, Mr. Leaks testified that the double bunks in unit 5B are only about 3.5 feet apart horizontally and 2 feet apart vertically. (ECF No. 108 at PageID 1927-29.) Mr. Robert Pigram, a detainee in unit 4A, testified that, though there is only one bunk bed per cell in his unit, the distance between the top and bottom bunks is about 2.5 feet. (ECF No. 108 at PageID 1979.) The Independent Inspector also observed that social distancing is not adhered to in relation to sleeping arrangements. (ECF No. 80 at PageID 1183-84.) Defendants offered no evidence to mitigate these deficiencies.
However, as noted earlier, Defendants have coordinated with the Shelby County Criminal Courts to reduce the number of court appearances to minimize movement throughout the Jail. (ECF No. 111, PageID 2156, 2235-37.) When detainees must be brought to court, Defendants now separate detainees in the tunnel leading to the courts in chairs which are separated six feet apart. (ECF No. 111, PageID 2156-57; see ECF No. 101-1.) Plaintiffs do not substantially controvert these facts.
As for the issue of increasing the ability to social distance by reducing the jail population, the Jail population has decreased from 2,150 to 1,826 from the period of March 12, 2020 to June 24, 2020. (ECF No. 114-5, PageID 2612-15.) Defendants provided proof of their coordination with law enforcement to attempt to reduce the number of arrests and new detainees during the pandemic. (ECF No. 111, PageID 2213.) Additionally, Defendants have coordinated with the District Attorney’s Office, Public Defender’s Office and other agencies through weekly Shelby County Criminal Justice Partners’ meetings to expedite the release of those accused of misdemeanors and low-level felonies. (ECF No. 111, PageID 2205, 2208; ECF No. 100-1 at PageID 1601.)
However, there was no proof that the medically vulnerable status of detainees has been routinely taken into account in the decisions related to reducing the jail population. In fact, the Jail’s Medical Director, Dr. Donna Randolph, stated that she had not coordinated with the Jail’s expediter regarding the release of any detainees in relation to COVID-19. (ECF No. 114-2, PageID 2486.) Dr. Randolph maintains that her patients, including the medically vulnerable, “are well cared for,” so there is no one about whom she “was concerned with.” (Id.) The Independent Inspector found that “there is no concentrated and coordinated effort to assemble and
5

present information to the courts regarding an inmate’s medical conditions that may make him vulnerable to serious illness or death while housed in the jail.” (ECF No. 76, PageID 1099.) As to the named Plaintiffs, the testimony offered at the July 13th hearing focused on allegations of repeated drug sales during previous stints on bond, not threats to safety or flight risks which are the traditional measures of whether a detainee should be released on bond. (ECF No. 111 at PageID 2213-17.) There was no proof offered, by any party, of the consideration of unique alternatives to pretrial detention in the Jail, in an effort to reduce the jail population.
*6 Plaintiffs also raise concerns related to cleanliness and hygiene, two other ways in which the spread of the virus can be contained. (ECF No. 2 at PageID 49.) As for these issues, the evidence showed that detainees are provided cleaning supplies for their individual areas and common areas. (ECF No. 111, PageID 2146-47.) Additional cleaning supplies are located near high use areas such as the phones and showers. (ECF No. 111, PageID 2152-53.) In addition to the cleaning performed by detainees, officers disinfect surfaces around the Jail regularly and have recently purchased additional mops, presumably based on a recommendation from the Independent Inspector. (ECF No. 111, PageID 2148.) The Jail also now provides all detainees with two free bars of soap per week. (ECF No. 111, PageID 2144.)
It is also the Jail’s policy to provide at least one mask to detainees. (ECF No. 80 at PageID 1192; ECF No. 107-1 at PageID 1854-55.) Detainees and Jail staff must wear masks at all times. These protective policies are largely being followed. (ECF No. 107-1.)
One final factual matter raised by Plaintiffs—the housing of medically-vulnerable detainees. It is uncontroverted that the Jail does not separate all medically-vulnerable detainees from the general population. (See, e.g. ECF No. 80 at PageID 1180, 1183, 1187.) While some medically “fragile” detainees are housed in designated-medical units on the second floor, the rest of the medically-vulnerable population is scattered throughout the Jail. (Id. at PageID 1183.) The Independent Inspector and Plaintiffs’ Expert raise questions as to whether such housing arrangements make sense, wondering instead whether the better course of action is to keep the medically-vulnerable together with even greater protections against the virus. (ECF No. 80 at PageID 1188; ECF No. 107-1 at PageID 1858.) However, there was no testimony offered that such a housing arrangement must be done under applicable standards or that it could not be accomplished within the Jail.

Busby v. Bonner, --- F.Supp.3d ---- (2020)
ANALYSIS
Courts balance four factors in determining whether to grant a preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction. Am. Civil Liberties Union Fund of Mich. v. Livingston County, 796 F.3d 636, 642 (6th Cir. 2015.) The final two factors “merge when the Government is the opposing party.” Gun Owners of Am., Inc. v. Barr, 2019 WL 1395502, at *1 (6th Cir. Mar. 25, 2019). “These factors are not prerequisites, but are factors that are to be balanced against each other.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). However, “the likelihood of success on the merits often will be the determinative factor.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689 (6th Cir. 2014). The Court begins with this factor.
Detainees enduring harsh jail conditions often come to federal courts for help. See Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“The deplorable conditions and Draconian restrictions of some of our Nation’s prisons are too well known to require recounting here, and the federal courts rightly have condemned these sordid aspects of our prison systems”). Pre-trial detainees can, as here, accuse jail administrators of violating their Fourteenth Amendment right to be free from punishment, their Eighth Amendment right to medical care and their rights under the ADA and Rehab Act to be reasonably accommodated for their disabilities. Yet, before coming to court with these constitutional or statutory claims, a detainee must decide on the relief he seeks for that will determine his legal vehicle. See McCarthy v. Bronson, 500 U.S. 136, 140, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991) (noting the “two broad categories of prisoner petitions”). Does he want money damages and a stop to the jail’s misconduct? If so, his claims can be filed as a lawsuit under 42 U.S.C. § 1983. Or, does he seek release from custody? Then only through a petition for a writ of habeas corpus (under 28 U.S.C. § 2241) can his claims come before the court.
6

*7 Plaintiffs here opted to assert their constitutional and statutory claims through a petition for a writ of habeas corpus. As this Great Writ confers release of a detainee, issuance of it does not come lightly. Notably, the writ “does not exist to ferret out every constitutional violation.” In re Campbell, 874 F.3d 454, 463 (6th Cir. 2017). For this writ to be issued for a detainee, he must show that his confinement is unlawful, no matter what. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (noting that a writ of habeas corpus is apt only “when a state prisoner is challenging the very fact ... of his physical imprisonment”). “The Great Writ is not concerned with the piecemeal reformation of an imperfect criminal justice system.” Campbell, 874 F.3d at 463. (“In contrast, § 1983 is engineered to accomplish this lofty goal.”).
Where a detainee alleges that the incurable horror of his jail’s conditions merit injunctive habeas relief, courts effectively evaluate the allegations twice to assess their propriety as a habeas petition before analyzing the claims under their relevant constitutional and statutory standards to assess likelihood of success. Although these two steps are not outlined in applicable case law, courts engage in this process, nonetheless. See Wilson v. Williams, ––– F.Supp.3d ––––, ––––, 2020 WL 1940882, at *1 (N.D. Ohio Apr. 22, 2020) (noting a detention facility’s “limited available testing and [its] inability to distance inmates” amid the pandemic, before finding habeas relief appropriate).
First, courts examine whether the detainee really seeks release, as opposed to an improvement in conditions which is properly raised under § 1983. When complaining about conditions, a detainee passes this hurdle only if he contends that no legally sufficient conditions are possible at the jail. See Wilson v. Williams, 961 F.3d 829, 838 (“[W]here a petitioner claims that no set of conditions would be constitutionally sufficient the claim should be construed as challenging the fact or extent, rather than the conditions, of the confinement”). Second, as a court examines “likelihood of success” when faced with a request for an injunction, it must independently confirm that there are indeed no legally sufficient conditions possible at the jail. This second step prevents detainees from filing § 1983 lawsuits under the guise of habeas petitions solely by alleging that no legally sufficient conditions are possible at the jail.6
*8 Only after a detainee clears these two hurdles—by alleging, then actually showing, that the conditions at the jail are incurable—should a court analyze whether those

Busby v. Bonner, --- F.Supp.3d ---- (2020)
conditions violate the relevant constitutional and statutory standards. Here, Plaintiffs easily clear their first hurdle. They expressly allege that the conditions at the Jail are so deplorable that their constitutional and statutory grievances can only be remedied by release from the Jail’s confines. That gets them past the Motion to Dismiss stage.
At their second hurdle, Plaintiffs’ challenge is tougher. They argue both that their detention is per se unconstitutional because of the congregant nature of jails and that aspects of confinement at this particular Jail are unconstitutional. And the proof before the Court certainly shows failures with how the Jail is detaining medically vulnerable detainees amid this pandemic. Yet, the proof also shows that these failures can likely be remedied quickly, and that the Jail can confine medically-vulnerable detainees without violating the Constitution, the ADA and the Rehab Act. Indeed, many complaints by Plaintiffs have already been addressed. Ultimately, Plaintiffs’ likelihood of success on the merits is not strong. What follows is an analysis of the issues raised by Plaintiffs which, they argue, are of constitutional and statutory concern.
Plaintiffs’ first argument—that their detention in a jail is per se unconstitutional—fails because the Sixth Circuit recently upheld the detention of medically-vulnerable people in a Michigan jail. See Cameron v. Bouchard, 2020 U.S. App. LEXIS 16741, *5 (6th Cir. May 26, 2020). In Cameron, the Sixth Circuit found that, because jail officials’ preventative actions against COVID-19’s spread were “reasonable,” the pretrial detainees’ constitutional allegations were unlikely to succeed. Implied in that result was the holding that confinement of medically-vulnerable detainees in a jail amid the pandemic is not necessarily unconstitutional. Of note, the CDC interim guidance on management of COVID-19 in detention facilities, on which Plaintiffs rely, is explicitly conditioned on the “need to adapt[ ] based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.”7 Thus, the CDC itself also recognizes that certain precautions should be molded to fit particular facilities, again defeating the notion of per se violations.
However, we must still consider the second aspect of Plaintiffs’ argument—that the conditions at this particular Jail are incurably deplorable. For starters, consider that the Jail does not house all medically-vulnerable detainees separately. Yet, given that Plaintiffs did not present any public health evidence that medically-vulnerable people
7

in a confined facility must be segregated, this fact alone does not carry the day in Plaintiffs’ favor. Rather, that the medically vulnerable are scattered throughout the general population simply means that the conditions endured by the entire population must be considered.
First, Plaintiffs criticize the lack of testing in the facility. Defendants acknowledge the use of a non-test-based, timing-out approach to prevent the entry of COVID-19 into the facility. (ECF No. 80, PageID 1176.) New detainees are quarantined for 21 days and are not tested unless they exhibit symptoms of COVID-19. (Id. at PageID 1176, 1181.) The logic behind this strategy is that should a detainee be COVID-19 positive, yet asymptomatic, the virus will run its course during the 21-day quarantine. The Independent Inspector found that, at the time of his inspection, this strategy was “inadequate” due to detainee movement to court hearings during the initial 21-day quarantine. (Id. at PageID 1187.) While awaiting these court hearings, detainees were placed in holding cells, comingled with others who were not part of their cohorted 21-day quarantine group. (Id.) This practice presented an unreasonable risk of exposure to all detainees, including medically-vulnerable ones, but the Jail has since remedied this concern, including coordinating with the courts to limit the number of detainees being brought to court, increasing the availability and use of videoconference access, insuring all detainees wear masks and imposing social distancing. (ECF No. 111, PageID 2235-38.) Although all details related to these new procedures were not fully outlined in the proof offered to the Court, the fact that significant changes were made demonstrates that the deficiency was capable of being remedied. And the most egregious of the issues raised, the violation of the quarantine itself, appears to be cured. Without proof to the contrary presented by Plaintiffs, who bear the burden of proof, this issue appears to have been adequately addressed.
*9 With these changes and the other screening procedures for detainees and staff, Defendants’ current protocols for those entering the Jail adequately protect (albeit, barely) against the entry of COVID-19 into the Jail. Ideally, Defendants—as they recently contemplated—would test incoming detainees and perform periodic testing throughout the facility, but it is their prerogative to opt for a timing-out strategy, if one is effective. Given that the Jail to court transfer problem, a critical system failure of their timing-out strategy, has largely been remedied, and incoming detainees’ quarantines are now respected, habeas relief is not merited on this basis.

Busby v. Bonner, --- F.Supp.3d ---- (2020)
We next turn to how Defendants segregate detainees who have been exposed to or infected with COVID-19. COVID-19 positive detainees are housed in the medical isolation unit, which is 2A, while those detainees who have been exposed to infected detainees are housed in the quarantine unit, which is 5A. (ECF No. 107-1 at PageID 1856-57.) Plaintiffs’ expert raises the concern that these units are “open”, and, because the virus can be transmitted through the air, medically-vulnerable detainees in neighboring units are at high-risk of contraction. (Id.)
If the virus can easily be transmitted to medically-vulnerable detainees neighboring the isolation and quarantine units, that is a grave problem, and one which may be difficult, if not impossible, to remedy. Plaintiffs’ expert appears to base his position on issues with airflow and the closeness of the entryways of the various units. However, there was no proof for the Court to conclude that the estimated 10 feet distance (between the isolation unit and the adjacent hallway) was too close, or that the infected COVID-19 patients should be housed farther away. Moreover, there was no proof offered as to the air flow within the Jail. The CDC recommended safe distance is 6 feet but the Court takes judicial notice of the fact that air flow issues are of concern among medical professionals. However, without an expert opinion on how far this virus typically transmits in indoor settings without barriers, the Court cannot say that the isolation and quarantine practices at the Jail are so deplorable that they merit habeas relief. If there is an airflow issue, which has not been shown to date, perhaps that can be remedied through filtering the air flow or adding acrylic glass. The proof offered by Plaintiffs to date fails to demonstrate likelihood of success on the merits on this issue.
Finally, we turn to Defendants’ efforts to prevent unknowing spread from asymptomatic detainees. Defendants’ steps in providing cleaning supplies for sanitizing individual and common areas are signs of progress. Detainees also appear to have been provided masks as well as soap, although perhaps not until after this lawsuit was brought. Usually, staff and detainees apparently properly don their masks. Defendants’ protective measures are reasonable in this area, and improvement is possible and encouraged. As an aside, the Independent Inspector noted that soap is not given freely if a detainee has money in his commissary account. If this is still true, that is worrying, but it is a problem easily curable.
As for social distancing, Defendants have taken measures
8

to mitigate the risks which come from detainees being in close proximity to each other. Defendants placed markings six feet apart in housing units and near telephones and other high use areas, (ECF No. 111, PageID 2153), reduced potential exposure in congregant areas during mealtimes, (ECF No. 111, PageID 2153, 2163), and regularly encourage detainees to practice social distancing throughout the Jail. (ECF No. 111, PageID 2153.) Importantly, Defendants have coordinated with the Shelby County Criminal Courts to reduce the number of court appearances to reduce movement throughout the Jail and have made efforts to reduce potential exposure for those detainees who must go to court. (ECF No. 111, PageID 2156, 2235-37.) These measures include maximizing distancing in the tunnel between the Jail and courts and adding video teleconference terminals, to reduce in person appearances.
*10 However, despite these efforts, grave areas of concern persist. As for sleeping arrangements, the facts found by the Court indicate that detainees do sleep within less than 6 feet of each other, contrary to the CDC guidelines. This fact is concerning, particularly if the Independent Inspector’s observation that the sixth floor is empty is still accurate. The Court likewise heard testimony that detainees do not socially distance during mealtimes. (ECF No. 111, PageID 2153, 2163.) Also, while detainees are given their medications one-by-one during pill call, they are lined together without social distancing. (ECF No. 108, PageID 1943-44.) Requiring medically-vulnerable detainees to receive their medications by waiting in a crowded line is a cruel ask. But to the extent these public health failures persist, they too can be easily remedied. While the Court ultimately concludes that maximizing social distancing is possible, thus calling into question likelihood of success as to habeas relief, it behooves the Jail to work creatively toward improving these conditions.
Additionally, the Jail’s efforts to reduce its population are a mixed bag. Reducing the Jail’s overall population, particularly those who are medically-vulnerable, better protects those individuals from any spread of the virus within the Jail and allows for more social distancing among those who remain detained. While the Jail has reduced the overall population from 2,150 to 1,826 from the period of March 12, 2020 to June 24, 2020, (ECF No. 114-5, PageID 2612-15), the Jail’s own Medical Director testified that she has not made any recommendations for potential release to the expediter based on the medically-vulnerable status of any detainee because she believes all detainees “are well cared for.” (ECF No.

Busby v. Bonner, --- F.Supp.3d ---- (2020)

114-2, 2486.) This testimony supports the Independent Inspector’s finding that “there is no concentrated and coordinated effort to assemble and present information to the courts regarding an inmate’s medical conditions that may make him vulnerable to serious illness or death while housed in the jail.” (ECF No. 80, PageID 1193.)
Of particular concern to the Court is the proof which showed that, not only is the medical vulnerability of detainees not being considered, the reasons offered for continued detention focus on repeat offenses in the past, not safety or flight risks in the present. While the Court does not suggest that repetitive drug dealing should not factor in a bond decision, it does not appear that the unique circumstances of the pandemic are playing the role that they should. Given these unusual circumstances, the Court wonders whether there are alternatives to confinement in the Jail, not typically used, that could serve the same goals, particularly where the alternative is exposing a medically-vulnerable detainee to the possibility of death. Again, however, this is an issue that can be remedied if addressed by the Jail, and thus is an inappropriate basis for habeas relief.

likelihood of merits success.”) (quoting Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020)). Therefore, Plaintiffs’ Motion for Preliminary Injunction is DENIED.
* * *
Today, the Court declines to reach the question of whether Defendants’ protections of medically-vulnerable detainees violate the Constitution or federal disability laws because it finds that any shortcomings are remediable. This Order does not conclude that Defendants’ actions are legally sufficient. Concerns persist as to the lack of testing, social distancing, and isolation and quarantine measures at the Jail, not to mention the persistent failure to consider detainees’ medical conditions when making bond decisions. Yet these issues can likely be fixed promptly, so a writ of habeas corpus is not merited at this time.

Defendants have made significant strides in its practices

CONCLUSION

at the Jail, yet doubts persist as to whether the conditions at the Jail are legally sufficient. However, to the extent the measures may be legally insufficient, they are remediable

*11 For these reasons, the Motion for a Preliminary Injunction is DENIED WITHOUT PREJUDICE.

in short time. That Defendants can quickly cure their public health lapses renders it unlikely that Plaintiffs will

IT IS SO ORDERED, this 7th day of August, 2020.

succeed on the merits of their habeas claim. Given that

Plaintiffs show little chance of succeeding on the merits, analysis of the other preliminary injunction factors is

All Citations

needless. See Wilson v. Williams, 961 F.3d 829, 844 (6th Cir. 2020) (“Our cases warn that a court must not issue a

--- F.Supp.3d ----, 2020 WL 4668757

preliminary injunction where the movant presents no

Footnotes

1

The Court treats Plaintiffs’ emergency motion as one for preliminary injunction given Plaintiffs’ request for such a

construal, and because an evidentiary hearing has taken place. (ECF No. 111 at PageID 2261) (“The Court now,

having heard all this evidence, should treat Plaintiffs’ motion as one for preliminary injunction rather than one for a

temporary restraining order”); see 2 FEDERAL RULES OF CIVIL PROCEDURE, RULES AND COMMENTARY Rule 65 (“It is

important to remember that the purpose of a TRO is to prevent any irreparable harm that might occur before the

court is able to hold a properly noticed hearing on whether to grant a preliminary injunction”).

2

The Court sometimes refers to “detainees,” which describes individuals who are being housed at the Jail with a

pending criminal matter, meaning they have not been adjudged guilty of a crime.

3

For purposes of clarity, the Court finds it most helpful to group its findings into areas of focus related to containing

9

Busby v. Bonner, --- F.Supp.3d ---- (2020)

the virus within the Jail. The Court understands there is overlap between the focus areas and notes the overlap when it is particularly important.

4

People

Who

Are

at

Increased

Risk

for

Severe

Illness,

CDC,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-increased-risk.html (updated June

25, 2020).

5

Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,

CDC,

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.ht

ml (last reviewed July 27, 2020).)

6

Here, Plaintiffs propose that the Court grant a “conditional writ of habeas corpus,” contingent on a detainee’s risk of

flight, dangerousness and medical vulnerability. Yet, that is not how conditional habeas writs are granted. They are

granted with the condition imposed on the state, with an absolute writ being issued if the state fails to meet the

condition. See Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (“[C]ourts may delay the

release of a successful habeas petitioner in order to provide the State an opportunity to correct the constitutional

violation found by the court”); Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir. 2006) (“[T]he sole distinction between a

conditional and an absolute grant of the writ of habeas corpus is that the former lies latent unless and until the state

fails to perform the established condition, at which time the writ springs to life”). Plaintiffs would have it the other

way around. Against the backdrop of the traditional definition of a conditional writ, recall that this atypical habeas

petition is legally sound as a “fact of confinement” challenge (rather than a “conditions of confinement” claim)

solely because it alleges that the Jail conditions are incurably dire. To grant a conditional writ here, allowing

Defendants to cure what is supposedly incurable, would improperly be converting this habeas action into essentially

a § 1983 lawsuit. See Wilkinson v. Dotson, 544 U.S. 74, 87, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (Scalia, J.,

concurring) (“Conditional writs are not an all-purpose weapon with which federal habeas courts can extort from the

respondent custodian forms of relief short of release, whether a new parole hearing or a new mattress in the

applicant’s cell.”)

7

Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,

CDC,

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.ht

ml (last reviewed July 27, 2020).)

10

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby, Terric Edwards, Russell Leaks, Saul Molina Martinez, Joseph Nelson, and Mark Phillips, on their own behalf and on behalf of those similarly situated;
PetitionersPlaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office;
RespondentsDefendants.

Case No. 2:20-cv-2359-SHL
[PROPOSED] SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. This action seeks urgent habeas, declaratory, and injunctive relief to
protect people in the Shelby County Jail (the “Jail”)—as well as Jail staff, their families,
and the Memphis community as a whole—from widespread infection, serious injury, and
death from COVID-19. Plaintiffs seek to represent a class of pretrial detainees held at the
Jail and request relief from this Court to limit the spread of COVID-19 and to protect
vulnerable people, in the Jail and in the community, from serious complications or death
from COVID-19 infection.
2. COVID-19 has created a global health crisis. Across the United States and
the world, governments have implemented drastic but necessary mitigation strategies,
including canceling public events, closing schools and businesses, and issuing stay-at-
home orders to the general public.
3. On March 12, 2020, Governor Bill Lee declared a state of emergency in Tennessee in response to COVID-19,1 which he has repeatedly extended.2 The Tennessee
Department of Health reports that as of September 10, 2020, 166,587 Tennesseans have
1 Office of the Governor, Gov. Bill Lee Issues Executive Order Declaring State of Emergency in Response to COVID-19 (Mar. 12, 2020), https://www.tn.gov/governor/news/2020/3/12/gov--bill-leeissues-executive-order-declaring-state-of-emergency-in-response-to-covid-19.html.
2 https://www.tn.gov/governor/news/2020/6/29/gov--lee-extends-state-of-emergencyto-aug--29--2020.html - :~:text=29%2C%202020,New%20executive%20orders&text=%E2%80%93%20Tennessee%20Governor%20B ill%20Lee%20today,pandemic%20to%20August%2029%2C%202020.E.g., Office of
the Governor, Gov. Lee Signs Extends State of Emergency to Aug. 29, 2020 (June 29, 2020), https://www.tn.gov/governor/news/2020/6/29/gov--lee-extends-state-of-emergency-to-aug--29-2020.html; Office of the Governor, Gov. Lee Signs Executive Orders Extending State of Emergency, Regulatory Flexibility, Local Authority on Facial Coverings (Aug. 28, 2020), https://www.tn.gov/governor/news/2020/8/28/gov--lee-signs-executive-orders-extending-state-ofemergency--regulatory-flexibility--local-authority-on-facial-coverings.html; see generally Office of the Governor, COVID-19 Timeline, https://www.tn.gov/governor/covid-19/covid19timeline.html (last visited Sept. 10, 2020).
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been infected with COVID-19, with 7,444 hospitalizations and 1,931 deaths.3 More deaths have occurred in Shelby County than any other county in Tennessee.4
4. Governments have declared states of emergency and issued stay-at-home orders for good reason. There is no vaccine or cure for COVID-19. The only known way to mitigate the risk of COVID-19 infections, complications, and death is prevention: social distancing of at least six feet between people to limit exposure, and hygienic measures, such as frequent hand-washing, wearing face masks, and sanitization of hightouch surfaces. Particularly in indoor environments, where COVID-19 can further spread through aerosolized droplets, these measures are essential.5
5. It is impossible for people in jail or prison to comply with these critical preventative measures. People in jail live in close, poorly ventilated quarters in small, crowded cells, and cannot “socially distance” by maintaining the recommended six feet of distance from other people. Many people in jail have limited access to soap, personal protective equipment (“PPE”), and hand sanitizer. The pretrial detainees at the Jail are no exception.
6. As a result, prisons and jails have become epicenters of COVID-19.6 As of August 28, 2020, 231 people held in Shelby County jails had tested positive for COVID-

3 Tenn. Dep’t of Health, Coronavirus Disease (COVID-19), https://www.tn.gov/health/cedep/ncov.html (last visited Sept. 10, 2020); Tenn. Dep’t of Health, Epidemiology and Surveillance Data, https://www.tn.gov/content/tn/health/cedep/ncov/data.html (last visited Sept. 10, 2020).
4 Tenn. Dep’t of Health, Epidemiology and Surveillance Data, https://www.tn.gov/content/tn/health/cedep/ncov/data.html (last visited Sept. 10, 2020).
5 See Linda Morawska & Donald K. Milton, It Is Time to Address Airborne Transmission of COVID-19, Accepted Manuscript, Oxford University Press for the Infectious Diseases Society of America (July 6, 2020), https://academic.oup.com/cid/advance-article/doi/10.1093/cid/ciaa939/5867798.
6 See, e.g., Janet Reitman, ‘Something Is Going to Explode’: When Coronavirus Strikes a Prison, N.Y. TIMES MAGAZINE (Apr. 18, 2020), https://www.nytimes.com/2020/04/18/magazine/oakdale-federalprison-coronavirus.html; Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. TIMES (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html; Deanna Paul and

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19, as had 162 people who work at the jails.7 One jail employee to date has died from COVID-19.8
7. Defendants are inescapably on notice of the numerous respects in which the conditions at the Jail are unsafe and inadequate: Plaintiffs have sent a demand letter, filed two complaints, and submitted declarations and testimony from several detainees outlining the troubling conditions in the Jail during this pandemic. Two expert inspectors—one appointed by the Court—have testified and issued reports expressing alarm at the methodology employed at the Jail to contain the virus. Most recently, on August 7, 2020, the Court itself identified multiple “grave areas of concern” regarding the conditions at the Jail and twice urged the Shelby County Sheriff’s Office to “improv[e]” its current practices. After expressing “doubts . . . as to whether the conditions at the Jail are legally sufficient,” the Court urged the Jail to remedy these “public health lapses” in short order.9
8. More than one month has passed since the Court issued its Order. Regrettably, Defendants do not appear to have taken the Court’s forceful admonitions to heart. While the Jail temporarily made improvements to certain conditions, apparently in preparation for the inspections by court-appointed inspector Michael Brady and Plaintiffs’ expert Dr. Homer Venters, most of those improvements lapsed shortly after the inspections occurred. In many respects—despite the fact that Defendants have had every

Ben Chapman, Rikers Island Jail Guards Are Dying in One of the Worst Coronavirus Outbreaks, WALL STREET JOURNAL (Apr. 22, 2020), wsj.com/articles/rikers-island-jail-guards-are-dying-in-oneof-the-worst-coronavirus-outbreaks-11587547801. 7 https://twitter.com/ShelbyTNSheriff/status/1299421926272761860. 8 Brandon Richard, Shelby County Sees Big Spike in COVID-19 Cases as Testing Expands, WMC Action News (Apr. 27, 2020), https://www.wmcactionnews5.com/2020/04/27/shelby-county-sees-bigspike-covid-cases-testing-expands/. 9 ECF No. 124 at Pg.ID 2818, 2819, 2821.

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opportunity and incentive to provide safe conditions for those in their custody—the Jail is no safer than it was when Plaintiffs first filed their Complaint several months ago.
9. Favian Busby, Russell Leaks, Joseph Nelson, Terric Edwards, Saul Molina Martinez, and Mark Phillips (the “Named Plaintiffs”) are individuals held at the Jail who seek to represent a class of all current and future persons in pretrial custody at the Jail (the “Class”). Mr. Busby, Mr. Leaks, Mr. Nelson, Mr. Edwards, and Mr. Phillips also seek to represent a subclass of all current and future medically vulnerable (as defined below) pretrial detainees held at the Jail who, according to the Centers for Disease Control and Prevention (the “CDC”), are at high risk of severe infection or death from COVID-19 (the “Medically Vulnerable Subclass”). Mr. Busby, Mr. Leaks, Mr. Edwards, Mr. Nelson, and Mr. Phillips also seek to represent a subclass of current and future pretrial detainees who are medically vulnerable and at high risk of severe injury or death from COVID-19 due to disabilities protected under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (the “Disability Subclass”).
10. Plaintiffs bring this action because the Jail has failed to uphold its constitutional and statutory minimum requirements, putting Plaintiffs—as well as the Jail’s staff and the community at large—at unacceptable risk of infection from COVID19. People detained at the Jail are forced to live, sleep, and eat in close proximity to each other, are not provided with appropriate sanitary and protective measures, and are unable to access critical medical resources, placing them at extraordinary risk of infection with a potentially fatal disease.

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JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question jurisdiction), § 1343 (civil rights), and § 2201 (Declaratory Judgment Act). 12. Venue lies in the U.S. District Court for the Western District of Tennessee, the judicial district in which Plaintiffs are currently in custody. Venue is proper in the Western District of Tennessee under 28 U.S.C. § 1391, as venue is proper in any district in which a defendant resides.
PARTIES 13. Favian Busby is a pretrial detainee who is being held at the Jail. He has diabetes and takes insulin. Additionally, he has developed hypertension as a result of his diabetes. These conditions put him at high risk of serious illness or death if he contracts COVID-19. Mr. Busby has fully exhausted the remedies available to him regarding the conditions in the Jail. Mr. Busby is a person with a disability for purposes of the ADA and the Rehabilitation Act. 14. Terric Edwards is a pretrial detainee who is being held at the Jail. He has asthma and high blood pressure. He uses an inhaler every day to treat his asthma and takes medication to manage his blood pressure. Mr. Edwards has fully exhausted the remedies available to him regarding the conditions in the Jail. Mr. Edwards is a person with a disability for purposes of the ADA and the Rehabilitation Act. 15. Russell Leaks is a pretrial detainee who is being held at the Jail. He is 65 years old and has chronic liver disease, including hepatitis. Mr. Leaks also has hypertension, an irregular heartbeat, and he previously had a heart attack. He is at high

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risk of serious illness or death if he contracts COVID-19. Mr. Leaks has fully exhausted the remedies available to him regarding the conditions in the Jail. Mr. Leaks is a person with a disability for the purposes of the ADA and the Rehabilitation Act.
16. Saul Martinez is a pretrial detainee who is being held at the Jail. Mr. Martinez has fully exhausted the remedies available to him regarding the conditions in the Jail.
17. Joseph Nelson is a pretrial detainee who is being held at the Jail. He has diabetes, which he manages with insulin and Metformin. He has also developed hypertension as a result of diabetes. He is at high risk of serious illness or death if he contracts COVID-19. Mr. Nelson has fully exhausted the remedies available to him regarding the conditions in the Jail. Mr. Nelson is a person with a disability for the purposes of the ADA and the Rehabilitation Act.
18. Mark Phillips is a pretrial detainee who is being held at the Jail. He has primary progressive multiple sclerosis and tachycardia. The medication he takes to manage his multiple sclerosis is an immunosuppressant. Mr. Phillips is a person with a disability for the purposes of the ADA and the Rehabilitation Act.
19. Defendant Floyd Bonner, Jr. is the Sheriff of Shelby County, Tennessee and may be served with process at 201 Poplar Avenue, 9th Floor, Memphis, Tennessee 38103. Defendant Bonner is named in this action in his official capacity as the Sheriff of Shelby County.
20. Defendant Shelby County Sheriff’s Department is a Tennessee governmental department which, by virtue of its custody of Plaintiffs, is a party

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defendant to this matter. Defendant Shelby County Sheriff’s Department may be served with process by serving Sheriff Floyd Bonner, Jr.
FACTUAL ALLEGATIONS A. COVID-19 Is a Highly Infectious and Deadly Pandemic
21. COVID-19 is an extremely infectious disease that is transmitted from person-to-person. As of September 14, 2020, at least 28,918,900 people worldwide have tested positive for the virus and 922,252 people have died.10 In the United States, at least 6,467,481 people have contracted the virus, and 193,195 people have died from it.11 Data is still emerging, but as of September 13, 2020, 3% of COVID-19 diagnoses result in death in the United States.12 In some other countries, the mortality rate has been substantially higher.
22. COVID-19 can cause grave injury to multiple organ systems. In many people, COVID-19 causes fever, cough, and shortness of breath, which can be severe. It can severely, even fatally, damage lung tissue. COVID-19 may also target the heart muscle, causing a life-threatening medical condition called myocarditis, or inflammation of the heart muscle. COVID-19 can further damage tissue in a cytokine-release syndrome that can result in death or widespread damage to other organs, including permanent injury to the kidneys and neurologic injury.
23. When patients experience these severe consequences of COVID-19, they require supportive care, including scarce medical equipment and specialized care

10 World Health Organization, Coronavirus Disease (Covid-19) Pandemic (2020), https://www.who.int/ emergencies/diseases/novel-coronavirus-2019 (last visited Sept. 14, 2020)
11 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases and Latest Updates, https://covid.cdc.gov/covid-data-tracker/#cases_totalcases (last visited Sept. 13, 2020).
12 Johns Hopkins University & Medicine, Coronavirus Research Center, https://coronavirus.jhu.edu/data/mortality (last visited Sept. 14, 2020).

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providers, such as nurses, respiratory therapists, and intensive care physicians, to monitor and implement this care. This level of support can exceed local health-care resources. And even with this advanced support, many still die.
24. Patients who survive severe complications from COVID-19 often require extensive, long-term rehabilitation to mitigate neurologic damage and the loss of respiratory capacity.13 Some will likely experience lifelong limitations and disabilities as a result of severe COVID-19.
1. Impact of COVID-19 on Certain Populations 25. Certain groups of people are at higher risk of serious illness and death
from COVID-19 than the general population. Age is a significant risk factor for complications and death from COVID-19: The CDC reports that 80% of those who have died of COVID-19 in the United States have been 65 or older.14
26. In addition, the CDC has recognized considerable evidence that people with the following underlying medical conditions are, or likely are, at an increased risk of severe illness from COVID-19: cancer, chronic kidney disease; chronic lung disease, including chronic obstructive pulmonary disease, emphysema, chronic bronchitis, and pulmonary fibrosis; immunocompromised state from organ, blood, or bone marrow transplant, immune deficiencies, HIV, or use of corticosteroids and other immune weakening medicines; obesity (body mass index of 30 or higher); serious heart conditions, including heart failure, coronary artery disease, cardiomyopathies, and

13 See Ed Yong, Long-Haulers Are Redefining COVID-19, THE ATLANTIC (Aug. 19, 2020), https://www.theatlantic.com/health/archive/2020/08/long-haulers-covid-19-recognition-supportgroups-symptoms/615382/.
14 Centers for Disease Control and Prevention, Older Adults (updated Sept. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.

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hypertension; sickle cell disease; diabetes; moderate-to-severe asthma; cerebrovascular disease; cystic fibrosis; hypertension or high blood pressure; neurologic conditions; liver disease; pulmonary fibrosis; pregnancy; smoking; and thalassemia.15
27. In addition, it is well-documented that African Americans have experienced significantly worse outcomes following infection with coronavirus than others.16 Recent analysis of CDC data shows that the COVID-19 mortality rate among African Americans is more than twice that of white Americans.17 On any given day, the population of the Jail is typically more than 86 percent African American.18
2. Means of Transmission 28. Experts agree that the virus is primarily spread through person-to-person
contact, via respiratory droplets produced when an infected person breathes out, coughs, sneezes, speaks, or even simply clears their throat. Large droplets remain in the air for seconds to minutes before they fall to the ground or land on other surfaces. Smaller droplets, on the other hand, are aerosolized and can remain in the air for as long as three hours.19
29. Moreover, the fact that COVID-19 droplets are aerosolized means that the droplets travel significantly greater distances—between 7 and 16 feet from infected

15 Centers for Disease Control and Prevention, People with Certain Medical Conditions (updated Sept. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html.
16 E.g., Richard A. Oppel Jr. et al., The Fullest Look Yet at the Racial Inequity of Coronavirus, N.Y. TIMES (July 5, 2020), https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-africanamericans-cdc-data.html.
17 APM Research Lab Staff, Covid-19 Deaths by Races and Ethnicity in the U.S., APM Research Lab (Aug. 18, 2020), https://www.apmresearchlab.org/covid/deaths-by-race.
18 See MacArthur Foundation, Safety + Justice Challenge, “Shelby County, TN,” http://www.safetyandjusticechallenge.org/challenge-site/shelby-county/ (last visited Sept. 2, 2020).
19 See Linda Morawska & Donald K. Milton, It Is Time to Address Airborne Transmission of COVID19, Accepted Manuscript, Oxford University Press for the Infectious Diseases Society of America (July 6, 2020), https://academic.oup.com/cid/advance-article/doi/10.1093/cid/ciaa939/5867798.

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patients, according to at least one study.20 The potential for infection through this mechanism is even higher when people are indoors, in light of the limited movement and exchange of air.21
30. Studies from China found that individuals could be infected simply by being in the same restaurant as a person with COVID-19, despite having had no direct or indirect contact with the COVID-positive patron also eating there, and that airconditioned ventilation transmitted the virus and infected others in the restaurant.22 Likewise, of the aerosol samples collected in the hospital room of infected patients, 63.2% of in-room air samples and 58.3% of hallway air samples tested positive for the virus—even though patients had not coughed prior to collection of the samples.23 In short, there is little doubt that the mere exhalation of an infected person indoors can generate aerosolized droplets that travel more than six feet, linger in the air for hours, and have the potential to infect others.
3. The Need for Preventive Measures 31. There is no vaccine against COVID-19, nor is there any known medication
to prevent or treat infection from COVID-19. On March 26, 2020, Dr. Anthony Fauci— head of the National Institute of Allergy and Infectious Diseases—estimated that a vaccine could be developed in 18 months. Other experts have cautioned that the 18month estimate is highly optimistic, as vaccines typically take between 8 and 10 years to

20 Lindsey C. Marr, Ph.D., Yes, the Coronavirus is in the Air, N.Y. TIMES (July 30, 2020), https://www.nytimes.com/2020/07/30/opinion/coronavirus-aerosols.html.
21 Apoorva Mandavilli, 239 Experts with One Big Claim: The Coronavirus is Airborne, N.Y. TIMES (July 7, 2020), https://www.nytimes.com/2020/07/04/health/239-experts-with-one-big-claim-thecoronavirus-is-airborne.html.
22 Lindsey C. Marr, Ph.D., Yes, the Coronavirus is in the Air, N.Y. TIMES (July 30, 2020), https://www.nytimes.com/2020/07/30/opinion/coronavirus-aerosols.html.
23 Id.

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develop. And, in any event, the effectiveness of any vaccine that is developed and the ability to administer it broadly in the United States will remain significant wildcards.
32. In the absence of a vaccine, a treatment, or a cure, the only known measure that vulnerable people can take to reduce the risk of severe illness or death from COVID-19 is to prevent exposure to the virus in the first place. Yet asymptomatic carriers of COVID-19, who show no apparent signs of illness, can also transmit the virus. The only known measure to prevent exposure to the virus is social distancing—remaining physically separated from known or potentially infected individuals—and vigilant hygiene, including washing hands with soap and water and cleaning and disinfecting frequently touched surfaces. In light of the possibility of asymptomatic transmission and in the absence of widely available testing, the only way to protect oneself from contracting the virus is to remain distant from all other people.
33. The world, the country, and this state have changed radically in the months since COVID-19 was first observed, and our lives have been altered in ways that would have been unimaginable mere months ago. These changes are the result of attempts to implement widespread social distancing to prevent the spread of the virus. Officials have cancelled public events, closed schools and businesses, and issued stay-athome orders to the general public.
34. In Tennessee—where, as of August 31, 2020, there were over 153,115 confirmed cases of COVID-19 and over 1,700 deaths from COVID-19—Governor Bill Lee issued Executive Order No. 23 in April 2020, requiring all Tennesseans to stay at home unless they are carrying out essential activities or engaging in essential services. The order also requires individuals who leave their home to adhere to social distancing

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measures recommended by the CDC, including “[m]aintaining a distance of at least six (6) feet between themselves and others, except for family or household members.”
35. In his announcement that the state’s stay-at-home order would expire April 30, 2020, Governor Bill Lee stated, “For the good of our state, social distancing must continue.”24 Indeed, the August 28, 2020 Executive Order extending the state of emergency in Tennessee provides that “[s]ocial distancing remains imperative.”
36. Shelby County, too, affirmed on August 24, 2020 in a Public Health Directive that “[i]ndividuals must practice social distancing” and must wear masks in public. Social distancing is not possible in the Shelby County Jail. B. People Detained in the Jail Face a Heightened Risk of COVID-19 Transmission
37. The conditions at correctional facilities such as the Jail pose a heightened risk for the spread of COVID-19. Other enclosed group environments, such as cruise ships and nursing homes, have also seen extremely high COVID-19 transmission rates.25 In the United States, no environments have suffered more than prisons and jails: More than 186,000 people in jails and prisons have been infected with the coronavirus, and more than 1,100 incarcerated people and correctional officers have died.26 In fact, of the

24 Natalie Allison, Gov. Bill Lee Won’t Extend Tennessee Stay-at-Home Order Past April 30; Some Businesses Expected to Reopen Next Week, TENNESSEAN (Apr. 20, 2020), https://www.tennessean.com/story/news/politics/2020/04/20/tennessee-gov-wont-extend-coronavirushome-order/5166816002/.
25 See, e.g., Joshua Rhett Miller, Coronavirus deaths at US nursing homes, long-term facilities reach over 10,000, N.Y. POST (Apr. 23, 2020), https://nypost.com/2020/04/23/coronavirus-deaths-at-usnursing-homes-reach-over-10000/; Minyvonne Burke, 10 dead, over 800 test positive in coronavirus outbreaks on Princess cruises, CDC says, NBC NEWS (Mar. 24, 2020), https://www.nbcnews.com/health/health-news/10-dead-over-800-test-positive-coronavirus-outbreaksprincess-cruises-n1167716.
26 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES (last visited Sept. 3, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.

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100 largest known clusters of the disease in the United States, 88 are connected to correctional facilities, as are all of the fifteen largest clusters.27
38. At correctional facilities, such as the Jail, where incarcerated people are required to live and sleep in close proximity, social distancing is typically impossible. People at the Jail are generally confined either in small cells with at least one other person, or in dormitory-style pods with dozens of other people. When they are permitted into communal areas, including to receive meals, take medication, or make phone calls, they are regularly in close proximity to others.
39. The risk from the inability to safely practice social distancing is compounded by the lack of access to hygiene products necessary to prevent the spread of the disease and the poorly ventilated indoor environment. In previous epidemics and pandemics, infection rates in jails and prisons have been higher than in the general population.
40. Notwithstanding the already difficult conditions in the Jail, Defendants have pepper-sprayed detainees on at least two occasions during the coronavirus pandemic. On April 29, 2020, staff at the Jail pepper-sprayed detainees in medical isolation for COVID-19. This exacerbated the difficulty of breathing for many persons already experiencing symptoms, including shortness of breath, nausea, vomiting, coughing up blood, fevers, and chills.
41. On May 19, 2020, staff at the Jail forced detainees who had been in quarantine for having contracted or been exposed to COVID-19 back into the general population. Those being moved from medical isolation were not retested for COVID-19

27 Id.

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prior to being moved, nor were they screened for symptoms of COVID-19. Many detainees resisted the move because it put other people in the Jail at risk of increased exposure to the virus: as one person in quarantined housing put it, “All we are looking for is to be re-tested before we are re-classified and rehoused. . . [I feel] a moral obligation” not to pass the virus to anyone else.28 Jail staff pepper-sprayed those individuals who refused to move out of quarantine. C. Defendants Failed to Adopt or Amend Policies in Response to the COVID-19
Pandemic 42. The Jail has in place a number of standard policies and operating
procedures relating to medical care for detainees, but not a single one of these policies or procedures has been updated to reflect the impact of COVID-19.29
43. One of these policies, Policy 199 (“Exposure Control Plan Communicable Disease), specifically references Tuberculosis, Hepatitis A, B, and C, and HIV, but makes no mention of COVID-19. Several policies have not been revised in years. It is no wonder that the Jail has been caught flat-footed in its response to COVID-19. D. Defendants Have Utterly Failed to Remediate the Unconstitutional Conditions in
the Jail 44. Notwithstanding the myriad ways in which the deficient conditions in the
Jail have been brought to Defendants’ attention—Plaintiffs’ demand letter, complaints, declarations, and testimony; the reports and testimony of two expert inspectors; and the

28 Yolanda Jones, Inmates at 201 Poplar pepper-sprayed over move after COVID quarantine, DAILY MEMPHIAN (May 19, 2020), https://dailymemphian.com/article/14169/covid-19-201-poplar-anthonybuckner-shelby-county-sheriffs-office.
29 See ECF No. 27-1 Ex. A (Inmate Medical and Mental Healthcare Policy; Inmate/Detainee Sick Call Policy; Inmate/Detainee Grievance Process; Inmates Medical Rights Policy; Inmates/Detainees Rights; Exposure Control Plan Communicable Disease Policy; Communicable Disease Response Policy; Infection Control Program; Inmate Medical Screening Policy; and Inmate Clothing, Bedding, Linen Supplies and Hair Care Policy).

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Court’s August 7, 2020 Order urging Defendants to “improv[e]” the Jail’s current practices in light of the Court’s “grave areas of concern”—Defendants have taken little or no corrective action.
45. Indeed, the Court found in its Order that the inadequacies in the conditions at the Jail were “remediable in short time” and could be “quickly cure[d].” Nevertheless, Defendants have simply failed to remedy the unconstitutional conditions that the Court identified.
1. Non-Testing Policy and Inadequacy of Isolation and Quarantine 46. Despite concerns raised by the Court about the efficacy of the Jail’s so-
called “timing-out,” non-testing policy in light of blatant failures to quarantine and isolate exposed detainees observed by both expert inspectors, the Jail persists in relying on this flawed practice. As the Court noted, a “timing out” strategy could theoretically be effective if the necessary steps are followed.30 However, the Jail’s quarantine and isolation practices are not, and have never been, sufficient to ensure the viability of this strategy.
47. The Jail still does not test for COVID-19 upon the intake of new arrestees. If someone displays symptoms of COVID-19, he is booked into the Jail but is escorted to an isolation pod. Yet so-called isolation pods regularly receive new detainees, and the “timing-out” clock does not restart for detainees previously living in those pods. Thus, when a detainee moves out of the isolation pod after 14 days, it is possible that he has been newly exposed to a detainee who has just moved into the isolation pod. Timing-out

30 ECF No. 124 at Pg.ID 2805.

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cannot be an effective strategy against preventing the spread of the virus where, as here, quarantine and isolation practices are not properly adhered to.
48. Further, the individuals in post-booking “isolation” themselves cannot maintain social distancing from others in their unit, as both Mr. Brady and Dr. Venters observed. Individuals housed in the lower-level units for isolation have cellmates in close proximity and have no choice but to be physically near others to use the phone, receive medication, or receive meals. The CDC recommends housing people in individual cells with solid doors, and specifically cautions against the use of cohorting of potential or suspected cases of COVID-19 and the introduction of new people into a quarantine unit at any point during the fourteen-day quarantine period.31 The use of the Jail’s “quarantine” practice—which allows for multiple people in a cell within six feet of one another, without solid walls or a solid door—appears nowhere on the list of acceptable quarantine practices in the CDC’s guidance: Transfer to another facility to enable quarantining is preferred.32
49. In light of these shortcomings, the Jail’s poor testing response is rendered even more damaging. In flagrant disregard of CDC guidelines, which explicitly caution against the use of such a “symptom-based strategy,” the Jail limits its testing to individuals whom staff members determine to be symptomatic.33 And even when detainees have requested tests because they suspect they have been infected, their

31 Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional Detention Facilities (updated July 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#Quarantine_inside.
32 Id. 33 Centers for Disease Control, Testing in Correctional & Detention Facilities (updated Aug. 22, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/testing.html (“Accumulating evidence supports ending isolation and precautions for persons with COVID-19 using a symptom-based strategy.”).

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requests have been denied. Infected individuals are not retested before they are moved back into their original pod.
50. Under these circumstances, the timing-out, non-testing policy is fundamentally flawed and puts all detainees in the Jail at grave risk of infection.
2. Lack of Barriers to Circulation of Infected Air 51. Critically, Dr. Venters also observed that cells used for isolation of
detainees are open-bar, meaning that air containing potentially infected droplets from within an isolation pod mingles with air outside that cell, resulting in potential exposure for those outside the cell.34 In light of evidence that infected aerosolized droplets can travel between 7 and 16 feet and linger in the air for hours indoors, this “isolation” approach is completely ineffective at preventing infected droplets from being transmitted through the air to people outside the isolation pod or cell. In addition, detainees on other floors confirm based on vents in their cells that air flow circulates among different cells.
52. In light of the reality of airborne transmission of the coronavirus, the open-bar units used for medical isolation of COVID-19 positive detainees on the second floor is profoundly unsafe—even more so given the detention of many medically vulnerable detainees on the second floor near the medical unit. In this respect, too, Defendants are evincing grave disregard to the health and safety of Plaintiffs and the other detainees in their care.
3. Impossibility of Social Distancing 53. Social distancing—the cornerstone of the prevention of the spread of
COVID-19—is impossible at the Jail and is in any event not encouraged or enforced by

34 ECF No. 107 ¶ 22.

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the staff. Beyond a video about COVID-19 that is played periodically, the Jail provides no instruction on social distancing to detainees. Jail staff does not implement or enforce social distancing practices, nor are there enough staff members to do so.
54. The layout of the Jail is as follows: • In the annexes on the lower level, where new detainees are confined during their purported isolation, there are a series of open-bar cells with common areas. • The second floor has the Jail’s medical unit and several small open-bar living units where certain medically vulnerable detainees live. There is no common area. • The third and fourth floors are lined with two-person open-bar cells and feature common areas. • The fifth and sixth floors are dormitory-style floors, with units that contain 64 beds.35 The pods are accessed through a sally port.
55. Most detainees live in pods with cells lining an open communal area, as on the third and fourth floors. Every cell has at least one person, and most have two people. When more than one person is in a cell, it is impossible to maintain a six-foot distance from one another. Detainees report spending up to 30 to 48 hours at a time in the same cell with another person. Class members sleep in bunk beds, with each bed three to four feet from one another. Each cell also has an open toilet area and a sink that is shared by

35 When asked about housing detainees in dormitory-style pods during the pandemic, Dr. Donna Randolph, medical director at the Jail, testified, “I don’t think that would be really a good idea.” (ECF No. 99-1, at Pg.ID 1496.) She cited the fact that “all the beds are stacked together a couple of feet apart, and there might be, say, 40 beds in one room.” (Id.)

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both cellmates. Showers are in the communal area of the pod and are shared by all members of the pod.
56. Because of staff shortages in the Jail, detainees are receiving no more than a few hours of “recreation time” per week. During recreation time, all detainees within a pod may enter the communal area of the pod, where they can eat meals, use the phone, shower, sit at a table, or use a touch-screen kiosk to order items from the commissary. This limited recreation time is each detainee’s only opportunity to participate in necessary activities, including communication with family or their lawyer, showering, or ordering commissary items, including supplemental nutrition and hygiene items. Detainees are not staggered in their time to attend to these needs. The jail staff have not moved the phones, tables, or kiosks farther apart, nor have they provided additional phones, tables, or kiosks. As a result, the only way to access showers, phones, meals, and commissary is in close contact with dozens of other incarcerated people. It is not possible for detainees to remain six feet away from other detainees while participating in any of those activities. When people eat, four to five men sit at same table, and they are much closer than six feet from one another.
57. When detainees go to see the medical provider, others who have appointments at the same time stand in line outside the medical unit. Those in line stand less than six feet apart and are not instructed to, nor able to, maintain social distance.
58. The Jail undertook certain meager measures to promote social distancing in anticipation of the inspection by Mr. Brady. These practices have largely lapsed following the inspection, and social distancing remains impossible in the Jail.

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59. Some detainees in the dorm-style pods received new bunk assignments prior to Mr. Brady’s arrival in the Jail, so that every other bunk would be left empty (though detainees were still not sleeping six feet apart from others). The week after the inspection, detainees were reassigned to their original bunks. Other detainees have not observed any reassignment of bunks in order to increase spacing and have never even received an instruction to sleep head-to-foot with their bunkmates.
60. Tape demarcating six feet of distance was applied to the floor for the pill call line in some pods prior to the inspection, but detainees were never instructed on its meaning and thus did not use it to distance themselves from others. In any case, the tape has come up from the ground and has not been replaced, and social distancing in the pill call line is not possible.
4. Increase in Jail Population and Failure to Consider Individuals for Release 61. In its Order, the Court found that “[r]educing the Jail’s overall population,
particularly those who are medically-vulnerable, better protects those individuals from any spread of the virus within the Jail and allows for more social distancing among those who remain detained.” The Court therefore asked the Jail to consider “alternatives to confinement” and observed that “it does not appear that the unique circumstances of the pandemic are playing the role that they should.”
62. The Court and its independent inspector found that there was “no concentrated and coordinated effort to assemble and present information to the courts regarding an inmate’s medical conditions that may make him vulnerable to serious illness or death while housed in the jail.” This remains unchanged.

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63. Defendants represented in July 2020 that the population in the Jail had declined since the onset of the pandemic. However, since the conclusion of the evidentiary hearing held by the Court that concluded July 13, 2020, the population in the Jail has increased by approximately 100 people and is currently close to 2000. Detainees report that they have observed no reduction in the number of people living in their pod (except for the removal of detainees who test positive for COVID-19).
64. Several Named Plaintiffs who are medically vulnerable and disabled have heard nothing from anyone at the Jail regarding their medical vulnerability to COVID or any precautions that could be taken within the Jail to help prevent infection among this population. They are aware of no housing reassignments intended to protect them from the high risk of severe illness or death if they are infected with COVID-19, nor are they aware of any consideration by the Jail of release or alternatives to incarceration.
65. This inattention is unfortunately consistent with the Jail’s stated policy for medically vulnerable people in its custody: Medical director Dr. Donna Randolph testified that she did not treat the medically vulnerable in the Jail differently from others in the population. Rather, she “just tr[ies] to take care of everybody the same and tr[ies] to keep everybody safe, whether they have a chronic condition or they don’t.”36 Dr. Randolph likewise testified that she has had no discussions with the Jail expediter about the potential release of any medically vulnerable detainees during the COVID-19 pandemic, because she believes her patients “are well cared for.”37

36 ECF No. 99-1, at Pg.ID 1509. 37 Id. at Pg.ID 1540–41.

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66. The rising population at the Jail, coupled with detainees’ reports that they are aware of no efforts to consider release of detainees or any alternatives, or even to meaningfully improve conditions inside the jail to limit the spread of infection, indicates that Defendants have ignored the Court’s plea.
5. Unavailability of Video-Conferencing for Court Hearings 67. The Court’s independent inspector made the disturbing observation that
detainees who were supposedly isolated or quarantined as part of the Jail’s timing-out policy were routinely being transported to and from court for hearings and kept in holding cells with dozens of other detainees with no ability to social distance. The inspector determined that this practice “completely undermine[d] the integrity and purpose” of the timing-out policy.
68. In response, Defendants presented testimony at the evidentiary hearing that, as of mid-July, they were finalizing the installation of hardware to permit court conferences to be held by video, in order to minimize opportunities for transmission of the virus during transport to and from court.38 While video-conferencing for court hearings has apparently been deployed for arraignments, detainees uniformly report that they have never used a video-conferencing system to attend court dates and do not know any other individual who has done so.
69. Relatedly, detainees—who have not been adjudicated guilty of a crime, and some of whom are medically vulnerable—have waited four to five months between court dates while they remain confined in an environment in which they are unable to take meaningful precautions to avoid exposure to COVID-19.

38 ECF No. 111 at Pg.ID 2237–38.

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70. Further, jury trials are currently suspended in Shelby County. For Plaintiffs and Class members, this reduces their avenues for release to only two: raise enough money to post bail from a jail cell, or plead guilty to receive a plea offer without an opportunity to exercise their right to trial or advance available defenses. This suspension of the criminal court process will only continue to cause the population in the jail to balloon.
6. Hygiene and Cleaning Supplies 71. The Jail implemented certain improvements to the availability of hygiene
and cleaning supplies in preparation for Mr. Brady’s inspection. These improvements were short-lived.
72. For example, filled soap dispensers were placed in bathrooms prior to Mr. Brady’s arrival. The soap dispensers sat empty and were not refilled for several weeks. Following the evidentiary hearing before the Court, certain pods were on “lockdown” and had no access to the commissary to purchase soap for a period of two weeks.
73. An “environmental team” likewise began spraying down showers and toilets before Mr. Brady’s inspection. That practice ceased approximately one week after the inspection.
74. And, prior to the inspection, bleach tablets were made available to those with janitorial responsibilities in the pod. Since the inspection, they have received Biovex spray alone, with no materials to wipe down showers and toilets.
75. Finally, detainees have never had access to hand sanitizer.

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7. Ineffective and Inconsistent Use of PPE 76. Detainees do not receive gloves, nor do Jail staff wear gloves. While Jail
staff wear masks, consistent with Mr. Brady’s findings in his inspection, staff frequently lower their masks below their chins when they speak.
77. People detained in the Jail report having received masks that are several months old, which they wash in the laundry or by hand in the sinks in their cells, using the same bars of soap they use to wash their hands. E. CLASS ACTION ALLEGATIONS
78. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedures on behalf of themselves and classes of similarly situated individuals consisting of all pre-trial detainees in the custody of the Jail (the “Plaintiff Class”) and on behalf of two subclasses (the “Medically Vulnerable Subclass” and the “Disability Subclass”).
79. The Plaintiff Class is defined as follows: All current and future persons held at the Jail in pretrial custody during the coronavirus pandemic.
80. The Medically Vulnerable Subclass is defined as follows: All current and future persons held at the Jail in pretrial custody during the coronavirus pandemic who are aged 65 years and older; have cancer; have chronic kidney disease; have chronic lung disease, including chronic obstructive pulmonary disease, emphysema, chronic bronchitis, and pulmonary fibrosis; are in an immunocompromised state from organ, blood, or bone marrow transplant, immune deficiencies, HIV, or use of corticosteroids and other immune weakening medicines; are obese (body mass index of 30 or higher); have serious heart conditions, including heart failure, coronary artery disease, cardiomyopathies, and hypertension; have sickle cell disease; have diabetes; have

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moderate-to-severe asthma; have cerebrovascular disease; have cystic fibrosis; have hypertension or high blood pressure; have neurologic conditions; have liver disease; have pulmonary fibrosis; are pregnant; smoke; or have thalassemia
81. The Disability Subclass is defined as follows: All current and future pretrial detainees in custody at the Jail during the coronavirus pandemic who are medically vulnerable because of a disability as defined in the ADA and the Rehabilitation Act. The Disability Subclass includes people with all conditions listed in paragraph 80, except those who are medically vulnerable solely because of age, uncomplicated pregnancy, or BMI.
82. Plaintiffs reserve the right to amend the class or subclass definition or establish additional subclasses as appropriate if discovery or further investigation reveals the class should be expanded or otherwise modified.
83. This action has been brought and may properly be maintained as a class action under Federal law. It satisfies the numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
84. Joinder is impracticable because (1) the classes are numerous; (2) the classes include future members; and (3) the class members are incarcerated, rendering their ability to institute individual lawsuits limited, particularly in light of reduced legal visitation and court closures in Shelby County.
85. Numerosity: On information and belief, there are at least 1900 people in the proposed Plaintiff Class. The proposed subclasses each include at least 400 people. The information regarding the exact size of the Plaintiff Class and the subclasses, as well as the identity of the members of each are in the exclusive control of the Defendants.

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86. Commonality: Common questions of law and fact exist as to all members of the proposed classes and subclasses, including (a) whether and to what extent the Jail is failing to provide incarcerated people constitutionally adequate COVID-19 prevention, testing, and treatment; (b) whether Defendants’ social distancing, health, and hygiene policies and procedures, and actions taken in response to the COVID-19 pandemic violate the Fourteenth Amendment to the United States Constitution; and (c) whether Defendants’ policies and practices discriminate against people with disabilities in violation of federal disability rights laws.
87. Typicality: The claims of Plaintiffs are typical of those of the class as a whole, including because (a) each Plaintiff is currently in Defendants’ custody; and (b) Plaintiffs’ and all class members’ claims arise from the same wrongful acts, omissions, policies and practices of Defendants, and are based on the same legal theories.39
88. Adequacy: Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. Plaintiffs have no interests adverse to the interests of the proposed class. Plaintiffs retained pro bono counsel with experience and success in the prosecution of civil rights litigation. Counsel for Plaintiffs know of no conflicts among proposed class members or between counsel and proposed class members.
89. Defendants have acted on grounds generally applicable to all proposed class members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore seek class certification under Rule 23(b)(2).

39 All Named Plaintiffs except for Mr. Martinez are medically vulnerable and disabled. Mr. Martinez does not seek to represent the subclasses or bring claims under § 2241, the Americans with Disabilities Act, or the Rehabilitation Act.

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90. In the alternative, the requirements of Rule 23(b)(1) are satisfied because prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of contact for the party opposing the proposed classes.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.
Constitution 28 U.S.C. § 2241 The Medically Vulnerable and Disability Subclasses Against All Defendants 91. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 92. Under the Fourteenth Amendment, persons in pretrial custody cannot be punished as part of their detention. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Punishment is established if the jailer’s conduct is either not rationally related to a legitimate, nonpunitive government purpose or excessive in relation to that purpose. 93. Under general circumstances, Defendants can hold pretrial detainees if, after making individualized findings based on the person’s flight risk and danger to the community, and evaluating less restrictive options than jail, it is clear that nothing short of detention will mitigate a credible risk of flight or danger. But and as a condition of holding persons in pretrial custody, the Jail must provide them with health care services and a safe environment, and cannot punish them. Here, Defendants have exposed the Named Plaintiffs and the Medically Vulnerable and Disability Subclass members to high risk of severe infection or death from COVID-19. Continuing to detain the Named

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Plaintiffs and the Class members is punitive, not rationally related to a legitimate purpose, and/or excessive in relation to any legitimate purpose.
SECOND CLAIM FOR RELIEF Unconstitutional Confinement in Violation of the Fourteenth Amendment to the
U.S. Constitution 28 U.S.C. § 2241 The Medically Vulnerable and Disability Subclasses Against All Defendants 94. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 95. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (referencing state’s “unquestioned duty” to provide adequate medical care for detained persons). 96. Corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody, including risks of future harm to their health and safety. See Helling v. McKinney, 509 U.S. 25, 33–34 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . [i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them”). 97. The relevant constitutional provision for pretrial detainees is not the Eighth Amendment but is, instead, the Due Process Clause of the Fourteenth Amendment. “[T]he due process rights of a person [in pretrial custody] are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added). Indeed, in

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Kingsley v. Hendrickson, the Supreme Court applied a lower standard to a pretrial detainee’s excessive force claim Fourteenth Amendment than that required of convicted prisoners. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (holding that the appropriate standard for a pretrial detainee’s excessive force claim is “solely an objective one”). The Sixth Circuit has noted that Kingsley “calls into serious doubt” whether a pretrial detainee must make the same showing as a convicted prisoner when raising a Fourteenth Amendment deliberate indifference claim. See Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) (recognizing the “shift in Fourteenth Amendment deliberate indifference jurisprudence [that] calls into serious doubt whether [the plaintiff] need even show that the individual defendant-officials were subjectively aware of her serious medical conditions and nonetheless wantonly disregarded them”).
98. If the Court concludes that pretrial detainees must make the same showing as a convicted person, deliberate indifference to the serious risk COVID-19 poses to members of the Class violates this right.
99. The Medically Vulnerable and Disability Subclasses are at high risk of severe infection from COVID-19. The Jail is rife with confirmed cases of COVID-19. Class members, because of their medical conditions and COVID-vulnerability, cannot be safe in the facilities in which they are housed at the Jail. The only way to ensure their safety and protect their constitutional rights is through release. Defendants are aware of the risk to the safety of the Named Plaintiffs and the Subclass members, but they have not taken steps to release them. Defendants are therefore deliberately indifferent to the safety of the Named Plaintiffs and the Subclass members.

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THIRD CLAIM FOR RELIEF Discrimination on the Basis of Disability in Violation of Title II of the ADA
42 U.S.C. § 12131, et seq./28 U.S.C. § 2241 The Disability Subclass Against All Defendants 100. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 101. Title II of the ADA requires that public entities refrain from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12132. The regulations implementing Title II of the ADA require that public entities avoid policies, practices, criteria, or methods of administration that have the effect of excluding or discriminating against persons with disabilities in the entity’s programs, services, or activities. 28 C.F.R. § 35.130(a), (b)(3), (8). Further, a public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). 102. Plaintiffs Busby, Edwards, Leaks, Nelson, and Phillips, and members of the Disability Subclass are individuals with disabilities for purposes of the ADA. 42 U.S.C. § 12102. They are “qualified” for the programs, services, and activities being challenged herein. 42 U.S.C. § 12131(2). 103. Defendants are violating Title II of the ADA by failing to make the reasonable modifications necessary to ensure equal access to adjudication, jail services, and release for people with disabilities who face high risk of severe infection or death from COVID-19. Defendants are further violating the ADA by employing methods of administration that tend to discriminate against people with disabilities.

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FOURTH CLAIM FOR RELIEF Discrimination on the Basis of Disability in Violation of Section 504 of the
Rehabilitation Act 29 U.S.C. § 794/28 U.S.C. § 2241 The Disability Subclass Against All Defendants 104. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 105. Section 504 of the Rehabilitation Act states that “no qualified individual with disability in the United States . . . shall, solely by reason of [] disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The regulations implementing Section 504 of the Rehabilitation Act require that entities receiving federal financial assistance avoid unnecessary policies, practices, criteria, or methods of administration that have the effect of discriminating against persons with disabilities. 28 C.F.R. § 41.51(b)(3)(i). 106. Defendants receive “Federal financial assistance” within the meaning of 28 U.S.C. § 794(a). 107. Plaintiffs Busby, Leaks, Edwards, Nelson, and Phillips, and members of the Disability Subclass are individuals with disabilities for the purposes of the Rehabilitation Act, 42 U.S.C. § 12012, 29 U.S.C. § 705(20)(B). They are “qualified” for the programs, services, and activities being challenged herein. 108. Defendants are violating Section 504 of the Rehabilitation Act by failing to make the reasonable modifications necessary to ensure equal access to adjudication, jail services, and release for people with disabilities who are at high risk of severe infection or death from COVID-19. Defendants are further violating the Section 504 by

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employing methods of administration that tend to discriminate against people with disabilities.
FIFTH CLAIM FOR RELIEF Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.
Constitution All Plaintiffs Against All Defendants
42 U.S.C. § 1983 109. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein. 110. Under the Fourteenth Amendment, persons in pretrial custody cannot be punished as part of their detention. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Punishment is established if the jailer’s conduct is either not rationally related to a legitimate, nonpunitive government purpose or excessive in relation to that purpose. 111. Under normal conditions, pretrial detention may be justified in response to an unmitigable risk of flight or danger to others, and if no less restrictive conditions of release are able to manage said risk. Incarcerating pretrial detainees under circumstances in which they are not reasonably safe from a life-threatening disease is excessive in relationship to these narrow government purposes. The Jail is on notice of the deficient conditions for its detainees but has nevertheless failed to remedy those conditions. Continuing to detain Plaintiff Class members without making the Jail compliant with COVID-19-specific guidance from public health experts is not rationally related to, and is excessive in relation to, that purpose. Because these failures violate Plaintiffs’ Fourteenth Amendment rights, Defendants should be enjoined to remedy the failures that cause Plaintiffs’ detention to amount to impermissible punishment. To the extent these failures

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cannot be remedied, the Medically Vulnerable and Disability Subclass Members seek habeas relief as noted in Claim One.
SIXTH CLAIM FOR RELIEF Unconstitutional Conditions of Confinement in Violation of the Fourteenth
Amendment to the U.S. Constitution 42 U.S.C. § 1983
112. Plaintiffs repeat and re-allege each and every allegation above, as if set forth in full herein.
113. Under the Fourteenth Amendment, corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody. Youngberg v. Romeo, 457 U.S. 307, 315–16, 324 (1982) (referencing state’s “unquestioned duty” to provide adequate medical care for detained persons).
114. Corrections officials are required to provide for the reasonable health and safety of persons in pretrial custody, including risks of future harm to their health and safety. See Helling v. McKinney, 509 U.S. 25, 33–34 (1993) (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition. . . . [i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them”).
115. The relevant constitutional provision for pretrial detainees is not the Eighth Amendment but is, instead, the Due Process Clause of the Fourteenth Amendment. “[T]he due process rights of a person [in pretrial custody] are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added). Indeed, in Kingsley v. Hendrickson, the Supreme Court applied a lower standard to a pretrial

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detainee’s excessive force claim under the Fourteenth Amendment than that required of convicted prisoners. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (holding that the appropriate standard for a pretrial detainee’s excessive force claim is “solely an objective one”). The Sixth Circuit has noted that Kingsley “calls into serious doubt” whether a pretrial detainee must make the same showing as a convicted prisoner when raising a Fourteenth Amendment deliberate indifference claim. See Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) (recognizing the “shift in Fourteenth Amendment deliberate indifference jurisprudence [that] calls into serious doubt whether [the plaintiff] need even show that the individual defendant-officials were subjectively aware of her serious medical conditions and nonetheless wantonly disregarded them”).
116. If the Court concludes that pretrial detainees must make the same showing as a convicted person, deliberate indifference to the serious risk COVID-19 poses to members of the Class violates this right.
117. The Jail has failed to act reasonably in response to the risk to the Plaintiff Class posed by COVID-19. It has failed to comply with public health guidelines to manage an outbreak of COVID-19 and cannot provide for the safety of the Plaintiff Class. Defendants’ actions and inactions result in the confinement of members of the Plaintiff Class in a jail where they failed to test for, prevent, or treat COVID-19 outbreaks, in violation of Plaintiffs’ rights to treatment and adequate medical care. Because these failures violate Plaintiffs’ Fourteenth Amendment rights, Defendants should be enjoined to remedy the failures that render Plaintiffs’ detention intolerably unsafe. To the extent these failures cannot be remedied, the Medically Vulnerable and Disability Subclass Members seek habeas relief as noted in Claim Two.

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REQUEST FOR RELIEF
118. Plaintiffs and Class Members respectfully request that the Court order the
following:
(1) Certification of this Petition and Complaint as a Class Action;
(2) An injunction requiring the Jail to:
(a) Eliminate the “critical system failure of the[] timing-out strategy” by implementing a test-based strategy for detecting and preventing the spread of COVID-19, pursuant to which new detainees are tested for COVID-19 at intake and “periodic testing” is performed throughout the Jail;40
(b) Address the threat of airborne transmission of COVID-19 to ensure proper quarantine and isolation of detainees who have been exposed;
(c) Ensure the consistent availability of cleaning supplies for sanitizing individual and common areas;
(d) Provide fresh masks for all detainees on at least a weekly basis;
(e) Provide free soap to all detainees;
(f) Maximize social distancing, through strategies to be outlined by a qualified expert pursuant to Federal Rule of Evidence 706, by addressing at a minimum:
(i) The practices, housing arrangements, and staffing and population levels needed to allow for at least six feet of social distancing at all times, taking into account the dimensions of each living unit; distance between beds; size and location of toilets, showers, tables, and phones; size of day rooms and other commonly used facilities; and staffing levels;
(ii) The reconfiguration of sleeping arrangements so that detainees sleep at least six feet from one another, including through use of the previously vacant sixth floor;

40 ECF No. 124 at Pg.ID 2816–17.

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(iii) The arrangement of the eating space and/or meal schedules to permit adequate social distancing during mealtimes and, if recommended, the use of tape markers to show six feet of distance along with training and oversight by Jail staff;
(iv) Strategies to ensure social distancing in the pill call line to address the “cruel ask” of “[r]equiring medically-vulnerable detainees to receive their medications by waiting in a crowded line”;41
(v) Whether alternate housing arrangements or structural modifications are necessary to address the airborne spread of COVID-19 in the Jail;
(vi) Whether alternative practices, housing arrangements, and staffing and population levels are needed to ensure the safety of medically vulnerable and disabled Subclass members during the course of the COVID-19 pandemic;
(g) Reduce the Jail population by establishing a systematic process by which stakeholders, including the Jail’s expediter, must consider release or other alternatives to detention for each medically vulnerable detainee, and address the Court’s “particular concern” by focusing this analysis on “safety or flight risks in the present,” rather than “repeat offenses in the past”;
(h) Implement a system to ensure that disabled subclass members have access to reasonable modifications and nondiscriminatory methods of administration to avoid disability discrimination;
(i) Permit Mr. Brady to conduct ongoing unannounced inspections of the Jail to determine the full extent to which the facility is implementing necessary safety measures;
(3) If, after issuing the above relief pursuant to § 1983, the ADA and the Rehabilitation Act, the Court concludes that a violation of Plaintiffs’ constitutional and statutory rights persists, or if the Court concludes that issuing the above relief would not adequately

41 Id. at Pg.ID 2819.

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remedy a violation of the Subclass members’ constitutional and statutory rights;
(a) An order pursuant to § 2241 or § 1983, the ADA, and the Rehabilitation Act imposing a process—to be determined by the Court—to consider the habeas corpus release and/or enlargement of custody of all Subclass members, considering:
(i) the deprivation of the petitioner-plaintiff’s federal rights posed by the COVID-19 outbreak (including the disability discrimination for Subclass members and the necessity of providing modifications including release);
(ii) any competent evidence that the individual poses a present, serious risk of flight or danger to others;
(iii) whether, by clear and convincing evidence, any present risk of flight of danger outweighs the threat to the petitioner’s health and safety posed by his exposure to COVID-19 in the Jail, after considering alternative conditions to manage the risk(s) presented;
(b) Granting a preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring continued reporting as to the future members of the Class and Subclass, and requiring Defendants to divert Class and Subclass members from incarceration at the Jail, including, but not limited to, by exercising their authority under T.C.A. §§ 8-8-221 and 40-7-120;
(4) A declaration that the Jail’s policies violate the Fourteenth Amendment right against cruel and unusual punishment with respect to the Plaintiff Class;
(5) A declaration that the Jail’s policies violate the Fourteenth Amendment rights to be free from punishment prior to conviction with respect to the Plaintiff Class;
(6) A declaration that the Jail’s policies violate the ADA and Rehabilitation Act with respect to the Disability Subclass;
(7) An award of Plaintiffs’ attorney fees and costs under 42 U.S.C. § 1988 and other applicable law; and

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(8) Any further relief this Court deems appropriate.

Dated: September 15, 2020

Respectfully submitted, /s/ Brice Timmons . Brice Timmons

Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Andrea Woods Amreeta S. Mathai Jeffery P. Robinson American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org jrobinson@aclu.org
Zoe Brennan-Krohn American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com
Darren Johnson* Meredith L. Borner Jonathan M. Silberstein-Loeb Edward C. Robinson, Jr. 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com mborner@paulweiss.com jsilberstein-loeb@paulweiss.com erobinson@paulweiss.com
* = pro hac vice application forthcoming Attorneys for Plaintiffs

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 Case 2:20-cv-02359-SHL Document 114 Filed 07/15/20 Page 1 of 60 PageID 2330

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby, Michael Edgington, Russell Leaks, and Joseph Nelson, on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,
Respondents-Defendants.

Case No. 2:20-cv-2359-SHL

PETITIONERS-PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 2:20-cv-02359-SHL Document 114 Filed 07/15/20 Page 2 of 60 PageID 2331
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... iii INTRODUCTION .............................................................................................................1 PROPOSED FINDINGS OF FACT.................................................................................2
I. Procedural Background .......................................................................................2 II. Weighing the Evidence........................................................................................6 III. Plaintiffs and the Class and Subclass Members Risk Loss of Health or Life
from COVID-19 While Confined in the Jail. ......................................................8 IV. The Jail Does Not Protect the Medically Vulnerable. .......................................13 V. Adequate Social Distancing Is Impossible at the Jail........................................16 VI. The Jail Does Not Test Adequately for COVID-19. .........................................25
A. To Track and Contain the Spread of COVID-19, Comprehensive Testing is Necessary. ..........................................................................................................25
B. The Jail Failed to Test Staff and Detainees for Long Periods of Time..............26 C. The Jail’s “Non-Test Based” Approach Is Inadequate. .....................................27 D. The Jail Failed to Adhere to Wellpath’s Policy for COVID-19 Testing. ..........29 VII. The Jail Has No Effective Medical Isolation or Quarantine. ............................31 A. The “Medical Isolation Unit” for COVID-19 Positive Detainees Provides No
Isolation. ............................................................................................................32 B. There Is No Isolation Because Detainees Congregate in Advance of Court
Visits. .................................................................................................................33 C. The Jail Does Not Quarantine Detainees Who May Have Been Exposed to the
Virus. .................................................................................................................. 35 VIII. The Jail Has Not Made Reasonable Modifications for Detainees with
Disabilities. ........................................................................................................36 IX. Plaintiffs, and the Members of the Classes they Represent, Cannot Be Made
Safe Now. ..........................................................................................................38 PROPOSED CONCLUSIONS OF LAW ......................................................................40
X. Plaintiffs Have Satisfied the Requirements for Injunctive Relief. ....................40 A. Plaintiffs Have Demonstrated a Likelihood of Irreparable Harm Absent an Injunction. ..........................................................................................................41 B. Plaintiffs Have Demonstrated a Likelihood of Success on the Merits. .............42 C. The Balance of the Equities Favors Plaintiffs. ..................................................52
XI. The Remedy Plaintiffs Seek is Within the Court’s Habeas Jurisdiction. ..........53 CONCLUSION ................................................................................................................54
ii

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TABLE OF AUTHORITIES

CASES

Page(s)

Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004) .......................................................................................54

Ahlman v. Barnes, No. SACV 20-835, 2020 WL 2754938 (C.D. Cal. May 26, 2020) .............................56
Bell v. Wolfish, 441 U.S. 520 (1979).....................................................................................................46

Bogovich v. Sandoval, 189 F.3d 999 (9th Cir. 1999) .......................................................................................52
Cameron v. Bouchard, No. 20-1469, 2020 WL 3867393 (6th Cir. July 9, 2020) ......................................50, 51

Chin Yow v. United States, 208 U.S. 8 (1908).........................................................................................................57
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983).....................................................................................................49

Denbow v. Maine Dept. of Corrections, No. 1:20-cv-00175, 2020 WL 3052220 (D. Me., June 8, 2020) .................................54

Farmer v. Brennan, 511 U.S. 825 (1994)...............................................................................................50, 51
Gay Inmates of Shelby Cty. Jail v. Barksdale, 819 F.2d 289, 1987 WL 37565 (6th Cir. June 1, 1987)...............................................47

Herrera v. Collins, 506 U.S. 390 (1993).....................................................................................................57
Hollis v. Howard, No. 16-5115, 2016 WL 9804159 (6th Cir. Dec. 21, 2016)..........................................52

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (Thomas, J., concurring) ..........................................................57
Kingsley v. Hendrickson, 576 U.S. 389 (2015)...............................................................................................47, 51

Malam v. Adducci, No. 20-10829, 2020 WL 3512850 (E.D. Mich. June 28, 2020) ...........................passim

iii

Case 2:20-cv-02359-SHL Document 114 Filed 07/15/20 Page 4 of 60 PageID 2333
McNeil v. Comm. Prob. Services, LLC, 2019 WL 633012 (M.D. Tenn. Feb. 14, 2019), aff’d, 945 F.3d 991 (6th Cir. 2019).....................................................................................................................48
Ne. Ohio Coal. for Homeless and Serv. Emps. Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006) .......................................................................................44
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) .......................................................................................45
Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276 (E.D. Mich. May 9, 2020) ....................................44
Pierce v. D.C., 128 F. Supp. 3d 250 (D.D.C. 2015).............................................................................54
Pimentel-Estrada v. Barr, No. C20-495, 2020 WL 209430 (W.D. Wash. Apr. 28, 2020)..............................52, 57
Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500 (D.C. Cir. 2016).....................................................................................56
Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018) .......................................................................................51
United States v. Salerno, 481 U.S. 739 (1987)...............................................................................................47, 56
Schulz v. State, 330 F.Supp.3d 1344 (N.D. Ala. 2018).........................................................................48
Stack v. Boyle, 342 U.S. 1 (1951)...................................................................................................47, 56
Whitley v. Albers, 475 U.S. 312 (1986).....................................................................................................48
Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) .................................................................................50, 52
Youngberg v. Romeo, 457 U.S. 307 (1982)...............................................................................................48, 49
iv

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INTRODUCTION 1. Plaintiffs Favian Busby, Russell Leaks, and Joseph Nelson, and the Classes of individuals they represent, are pretrial detainees seeking emergency relief finding that their continued detention at the Shelby County Jail (the “Jail”) violates the Fourteenth Amendment’s protections from unconstitutional punishment and unconstitutional confinement and their statutory rights under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.1 2. To resolve Plaintiffs’ claims, the Court evaluates the continued threat that COVID-19 poses to medically vulnerable and disabled detainees, the adequacy of the current steps taken by the Jail, and the legal standards applicable to Plaintiffs’ claims. 3. COVID-19 continues to create a high risk of irreparable injury to Plaintiffs absent an injunction, Plaintiffs are likely to succeed on the merits of their Fourteenth Amendment claims and their claims under the ADA and the Rehabilitation Act, and the public interest favors their release. 4. The only adequate remedy at this time is to order Plaintiffs released from detention on appropriate conditions.2
1 Michael Edgington does not meet the Class criteria as defined by the Court. See Order, ECF No. 38, Pg.ID 691–92. Accordingly, Plaintiffs’ counsel no longer seek relief on his behalf. Russell Leaks is being held pretrial on allegations concerning a parole violation and he is therefore still entitled to relief.
2 The term “release” refers to the discharge of detained individuals from the physical confines of the Shelby County Jail, not necessarily release from all forms of custody. Release options may include, but are not limited to: supervised release (including through the use of GPS or other forms of location monitoring), enlargement of custody to a halfway house residential placement if one is deemed safe for medically vulnerable persons, transfer to a hospital or other facility, or diversion to alternative community and treatment programs. Indeed, Shelby County already maintains a 1

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PROPOSED FINDINGS OF FACT I. Procedural Background
5. On May 20, 2020, Plaintiffs filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a class action complaint for declaratory and injunctive relief seeking release from the Jail in light of their medical vulnerabilities and disabilities and the threat to their safety at the Jail.3
6. Plaintiffs brought four independent claims for release: (i) unconstitutional punishment in violation of the Fourteenth Amendment; (ii) unconstitutional confinement in violation of the Fourteenth Amendment; (iii) discrimination on the basis of disability in violation of Title II of the ADA; and (iv) discrimination on the basis of disability in violation of Section 504 of the Rehabilitation Act.4
7. Simultaneously, Plaintiffs filed a motion for temporary restraining order seeking immediate release,5 a motion for class certification,6 and a motion for expedited consideration.7
8. In support of their motion for a temporary restraining order, Plaintiffs filed declarations from Dr. Nina Fefferman, professor at the University of Tennessee, Knoxville in both the Department of Ecology and Evolutionary Biology and the Department of
Pretrial Services Department “offering alternatives to incarceration at every stage of the criminal justice system.” See Pretrial Services, SHELBY CTY. TENN., https://www.shelbycountytn.gov/250/Justice-Initiatives (last visited May 19, 2020); see also Decl. of Bill Powell (“Powell Decl.”), ECF No. 2-5, ¶ 11. 3 See ECF No. 1. On June 16, Plaintiffs amended their petition. See ECF No. 50. 4 See id. at Pg.ID 18–22. 5 See ECF No. 2. 6 See ECF No. 3. 7 See ECF No. 4.
2

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Mathematics; Dr. Joe Goldenson, formerly the Director and Medical Director for the Jail Health Services of the San Francisco Department of Public Health; Dr. Marie Griffin, professor of medicine and health policy at Vanderbilt University in Nashville; Josie Holland, Esq.; Bill Powell; Ann L. Schiller, Esq.; Josh Spickler, Esq.; Michael R. Working, Esq.; and, Stella Yarbrough, Esq.8
9. On May 21, 2020, the Court granted Plaintiffs’ motion for expedited consideration and ordered Defendants to file responses to the motions for a temporary restraining order and for class certification by noon on May 26, 2020 and scheduled a hearing on those motions on May 27, 2020.9
10. On May 26, 2020, Defendants moved to dismiss Plaintiffs’ petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.10 Defendants also filed briefs in opposition to Plaintiffs’ motions for a temporary restraining order and for class certification.11
11. In support of their opposition to Plaintiffs’ motion for a temporary restraining order, Defendants also filed declarations from Chief Jailer Kirk Fields, Shelby County District Attorney General Amy Weirich, Shelby County Criminal Court Division VI Judge John W. Campbell, Shelby County Criminal Court Division VIII Judge Christopher Craft, Shelby County Health Officer Dr. Bruce Randolph, and Shelby County Jail Medical Director Dr. Donna Randolph.12
8 See ECF Nos. 2-1–9. 9 See ECF No. 15, Pg.ID 274. 10 See ECF No. 25. 11 See ECF Nos. 26 and 27. 12 See ECF Nos. 27-1–6.
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12. On May 27, 2020, the Court held a hearing and heard oral argument from both parties as well as testimony from Dr. Joe Goldenson, M.D.13
13. On May 29, 2020, Plaintiffs submitted their opposition to Defendants’ motion to dismiss and Defendants replied on June 4.14
14. On June 10, the Court entered an Order denying Defendants’ motion to dismiss and granting in part and denying in part Plaintiffs’ motion for class certification by certifying a Class and Subclass.15 The Court also ordered Defendants to file a list of Class and Subclass members on the docket no later than noon on June 12, 2020.16
15. On June 12, Defendants moved to amend the Court’s prior Order and to extend the deadline for filing their list of Class and Subclass members,17 which the Court granted.18
16. On June 12, the Court entered a further Order addressing Plaintiffs’ motion for temporary restraining order. The Court held its ruling on Plaintiffs’ motion for a temporary restraining order in abeyance and ordered, due to the conflicting facts presented by the parties and pursuant to Federal Rule of Evidence 706, an inspection of the Jail by an independent inspector.19
13 See ECF No. 36. 14 See ECF Nos. 35 and 37. 15 See ECF No. 38. 16 See id. at Pg.ID 691. 17 See ECF No. 40. 18 See ECF No. 42. 19 See ECF No. 45, Pg.ID 734.
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17. On June 18 the Court held a hearing with the parties to consider the appointment of the independent inspector.20 Also on June 18 the Court entered an Order appointing Michael K. Brady, an expert witness in the field of jail and prison operations as it relates to the prevention and mitigation of the spread of infectious diseases and public health in the correctional setting, to conduct an inspection of Jail.21 The Court instructed Mr. Brady to “render an expert opinion on the current health and safety of medicallyvulnerable Plaintiff-detainees at the Shelby County Jail in light of the COVID-19 pandemic, including but not limited to the Facility’s compliance with the pertinent CDC and Shelby County Public Health guidelines and other applicable standards.”22
18. On June 19, Plaintiffs filed a motion for expedited discovery and expedited briefing and exhibited thereto a set of interrogatories, requests for production, notices calling for the depositions of Chief Fields, Dr. Bruce Randolph, Dr. Donna Randolph, and a request to conduct an expert inspection of the Jail.23
19. Defendants responded to the motion for expedited discovery on June 22, 2020.24
20. On June 23, the Court held a hearing regarding Plaintiffs’ motion for expedited discovery and heard argument from both parties.25 Also on June 23, the Court granted in part and limited in part Plaintiffs’ motion for expedited discovery. The Court
20 See ECF No. 66. 21 See ECF No. 56, Pg.ID 843. 22 Id. 23 See ECF Nos. 57, 57-1–6. 24 See ECF No. 64. 25 See ECF No. 73.
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ordered Defendants to produce all written discovery by June 29, to make Chief Fields and Drs. Bruce and Donna Randolph available for depositions, and allowed Plaintiffs to conduct an independent inspection of the Jail, subject to certain conditions.26
21. On June 30, Mr. Brady submitted his inspection report.27 On July 1, the Court held a further hearing to hear evidence from Mr. Brady and both parties were afforded an opportunity to cross examine him.28
22. On July 10 and 13, the Court held an evidentiary hearing.29 On July 10, the Court heard testimony from Plaintiff Russell Leaks, Robert Pigram, a Class member, and Dr. Homer Venters, who conducted an inspection of the Jail on behalf of Plaintiffs. On July 13, the Court heard testimony from Chief Fields, Attorney General Weirich, and Judge Campbell.
II. Weighing the Evidence. 23. The issues in this case concern the Jail’s operations and the prevention and
mitigation of the spread of COVID-19. These are medical and scientific questions. Accordingly, the testimony of the experts in the case, especially those that provided live testimony—Drs. Goldenson and Venters and Mr. Brady—are accorded greater weight than the fact witnesses that presented evidence in this case.
24. Dr. Goldenson is an expert with 28 years’ experience working in correctional health in the San Francisco County Jail.30 For 23 years, Dr. Goldenson was
26 See ECF No. 69, Pg.ID 986. 27 See ECF Nos. 76 and 80. 28 See ECF No. 29 See ECF Nos. 108 and 111. 30 Hr’g Tr. 75:21-76:4 (May 27, 2020), ECF No. 36.
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the director and medical director of health services in the San Francisco County Jail.31 Dr. Goldenson developed communicable disease policies in his role as medical director in the jail and oversaw clinical and administrative operations.32
25. Dr. Venters is a physician, internist, and epidemiologist with over a decade of experience in correctional health, who has conducted numerous inspections to evaluate correctional facilities’ responses to COVID-19.33 Since April 2020, Dr. Venters has been asked to conduct court-ordered inspections of six other facilities to evaluate their COVID19 responses.34 Dr. Venters has been invited to present COVID-19 guidance to a number of organizations including the National Academy of Sciences, the National Association of Counties, and the American Medical Association.35
26. Mr. Brady is an expert in prison and jail operations, the ADA, and the prevention and mitigation of the spread of infectious disease and public health in the correctional setting from an operational and non-clinical perspective.36
27. Although they were afforded an opportunity to do so, Defendants neither sought to conduct their own expert inspection of the Jail nor did they provide any other expert testimony or evidence concerning the conditions at the Jail.37
31 Hr’g Tr. 75:25-76:2 (May 27, 2020), ECF No. 36. 32 Hr’g Tr. 76:2–6 (May 27, 2020), ECF No. 36. 33 Report of Dr. Homer Venters dated July 9, 2020 (“Venters Report”), ECF No. 107-1,
¶¶ 1, 5. 34 Id. at ¶ 5. 35 Id. at ¶ 6. 36 Michael K. Brady, Final Report of Covid-19 Inspection of the Shelby County Men’s
Jail at 201 Poplar Avenue, Memphis TN 38103 (“Brady Report”), ECF No. 80, Pg.ID 1169. 37 Deposition of Kirk Fields (“Fields Dep.”) (attached hereto as Ex. A) Tr. 28:7–11 (Q: I’m assuming you have no training in epidemiology A: You’re correct); Deposition of
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28. Mr. Leaks and Mr. Pigram testified credibly and reliably, and subject to cross-examination despite concerns over retaliation for their testimony, about their firsthand knowledge of the conditions of their confinement in the Jail.
29. Chief Fields’s testimony is unreliable because it is inconsistent in significant and critical respects with the testimony of Dr. Donna Randolph.38 And, according to Mr. Brady, Chief Fields does not spend much time in the Jail’s living units.39
III. Plaintiffs and the Class and Subclass Members Risk Loss of Health or Life from COVID-19 While Confined in the Jail.
30. COVID-19 is a serious illness caused by SARS-CoV-2, a novel coronavirus.40 In severe cases, COVID-19 can require hospitalization and lead to respiratory failure and death.41 COVID-19 is both more infectious and more deadly than other serious communicable diseases such as H1N1 or tuberculosis.42
31. Persons infected with COVID-19 can require advanced medical support including mechanical ventilation and extracorporeal membrane oxygenation.43 This heightened level of care is extremely resource intensive. It requires specialized equipment, the supply of which is limited. It also requires an entire team of healthcare providers,
Dr. Donna Randolph (“D. Randolph Dep.”) (attached hereto as Ex. B) Tr. 28:2–28:2 (no training in epidemiology or infection control). 38 Of the two, only Chief Fields presented live testimony subject to cross-examination. See Hr’g Tr. (July 13, 2020), ECF No. 111. 39 Brady Inspection Report, ECF No. 80, Pg.ID 1191. 40 Decl. of Dr. J. Goldenson (“Goldenson Decl.”), ECF No. 2-2, ¶ 8; Decl. of Dr. M. Griffin (“Griffin Decl.”), ECF No. 2-3, ¶ 3. 41 Goldenson Decl. ¶ 8; Griffin Decl. ¶¶ 5, 8. 42 Hr’g Tr. 76:24–77:2 (May 27, 2020), ECF No. 36. 43 Griffin Decl. ¶ 7.
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including 1:1 or 1:2 nurse to patient ratios, intensive care physicians, and respiratory therapists.44
32. Since this lawsuit was filed, the severity of the pandemic in Tennessee generally and Shelby County specifically has increased dramatically. As of July 15, 2020, there have been 66,016 confirmed cases of COVID-19 in Tennessee and 758 deaths.45 In Shelby County alone there have been 14,804 cases and 229 deaths.46 On May 20, the average number of deaths that week in Tennessee was five.47 On July 13, the weekly average number of deaths was 13.48
33. As of mid-May, around the time Plaintiffs commenced this action, 151 detainees and 66 staff members at the Jail had tested positive.49 As of July 10, according to the Sheriff’s Office, 169 detainees had tested positive.50 On July 12, 2020, it was reported that a further seven detainees and another eleven staff members at the Jail had
44 Griffin Decl. ¶ 7. 45 The New York Times, Tennessee Coronavirus Map and Case Count (last updated
July 15, 2020), available at https://www.nytimes.com/interactive/2020/us/tennesseecoronavirus-cases.html. 46 Id. 47 Id. 48 Id. 49 Yolanda Jones, West Tennessee Prisons, Shelby County Jail Hit Hard by Coronavirus, Daily Memphian (May 18, 2020), available at https://dailymemphian.com/article/14121/tennessee-departmentof-correction-shelbycounty-jail-covid-19-testing-positive. 50 Shelby County Sheriff, Weekly Coronavirus/Covid-19 Update (Jul. 10, 2020), available at https://twitter.com/ShelbyTNSheriff.
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tested positive for COVID-19.51 There are currently eleven individuals detained at the Jail who are positive.52 Two detainees have required hospitalization for COVID-19.53
34. There is no vaccine for COVID-19 and no known cure.54 Defendants at all relevant times knew that there is no vaccine or known cure for COVID-19.55 COVID-19
is transmitted by air and touch through aerosol droplets created when an infected person coughs, sneezes, or talks.56 COVID-19 is able to move fairly freely from one unit to
another in the Jail because the respiratory droplets that transmit the virus can persist and travel in the air.57
35. Maintaining at least six feet of physical distance between individuals (“social distancing”) is one of the only known ways to prevent the spread of COVID-19.58
This is true because the virus that causes COVID-19 is “highly infectious,” and can be transmitted by people exhibiting few or no symptoms of the disease.59 Vigilant hygiene,
51 See Sara Mcaraeg, COVID-19 Cases Spike In Shelby County Corrections as Hearings Continue In Class-Action Jail Suit, Memphis Commercial Appeal (Jul. 12, 2020), available at https://www.commercialappeal.com/story/news/health/2020/07/12/covid19-cases-spike-shelby-county-jails-lawsuit-continues/5424075002/.
52 See Hr’g. Tr. 65:15–16 (July 13, 2020), ECF No. 111. 53 See D. Randolph Dep. Tr. 73:9–14, ECF No. 99-1. 54 Griffin Decl. ¶ 4. 55 Hr’g Tr. 94:5–8 (July 13, 2020), ECF No. 111 (Q: Is it fair to say, Chief, that what
you did know as of February 2020 is that they didn’t have a cure of a vaccine and that the virus was potentially deadly? A: That’s correct.). 56 Venters Report ¶ 13(a); see also Social Distancing, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html (last visited July 14, 2020). 57 Venters Report ¶ 22(d). 58 Goldenson Decl. ¶ 14. 59 Id. at ¶ 13.
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including frequent washing of hands with soap and water, are also important measures to prevent spread of the virus.60
36. The CDC recognizes that “[c]orrectional and detention facilities face challenges in controlling the spread of infectious diseases because of crowded, shared environments and potential introductions by staff members and new intakes.”61
37. In large part because adequate social distancing is impossible in congregate settings, in correctional facilities such as the Jail the risks of virus transmission are particularly high.62
38. It is undisputed that the Plaintiffs, and the Class and Subclass members that they represent, are at heightened risk of severe illness or death from COVID-19.
39. Mr. Busby has been diagnosed with diabetes and he receives injections of insulin based on his blood sugar level.63 Mr. Busby has also been diagnosed with hypertension.64
40. Mr. Nelson is 51 years old. He was diagnosed with diabetes and he receives two doses of insulin weekly and two tablets of Metformin daily to manage his diabetes.65 Mr. Nelson also has hypertension secondary to diabetes and he has high cholesterol.66
60 See Goldenson Decl. ¶ 14. 61 Megan Wallace et al., COVID-19 in Correctional and Detention Facilities—United
States, February–April 2020, CDC (May 15, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm. 62 Griffin Decl. ¶ 11; Hr’g Tr. 12:10–12 (July 1, 2020), ECF No. 84; Brady Report, ECF No. 80, Pg.ID 1185. 63 See Decl. of J. Spickler (“First Spickler Decl.”), ECF No. 2-7, ¶ 9. 64 See id. at ¶ 10. 65 See Decl. of W. Dozier (“Dozier Decl.”), ECF No. 51, ¶ 6. 66 See id. at ¶¶ 7–9.
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41. Mr. Leaks is 65 years old.67 Mr. Leaks has been diagnosed with chronic liver disease, hepatitis, hypertension, an irregular heartbeat, and an enlarged prostate for which he takes medication. Mr. Leaks has suffered from a heart attack.68
42. On June 10, 2020, the Court certified a Plaintiff Class and Subclass of persons who are, by reason of the medical vulnerabilities and/or disabilities, at high risk of severe infection and/or death from COVID-19.69
43. The Jail population is more than 86 percent African American.70 African Americans are both statistically more likely to have the medical conditions that increase the risk of complications or death from COVID-19,71 approximately five times more likely
67 See Decl. of J. Spickler (“Third Spickler Decl.”), ECF No. 52, ¶ 4. 68 See id. at ¶ 6. 69 See Order, ECF No. 38, Pg.ID 690–91. 70 Shelby County, TN, MACARTHUR FOUNDATION, SAFETY + JUSTICE
CHALLENGE, http://www.safetyandjusticechallenge.org/challenge-site/shelbycounty/ (last visited July 15, 2020). 71 Black Americans at 60 percent more likely to have been diagnosed with diabetes than white Americans. See Diabetes and African Americans, U.S. DEP’T OF HEALTH & HUMAN SERVS. OFFICE OF MINORITY HEALTH https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=18 (last visited July 20, 2020). Black Americans are also 40 percent more likely to have hypertension. See Heart Disease and African Americans, U.S. DEP’T OF HEALTH & HUMAN SERVS. OFFICE OF MINORITY HEALTH https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=19 (last visited July 20, 2020).
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to require hospitalization,72 and at least 3.6 times more likely to die73 from COVID-19 than white Americans.74
IV. The Jail Does Not Protect the Medically Vulnerable. 44. Mr. Brady found that the “Wellpath COVID-19 response plan is inadequate
to protect the vulnerable inmates housed in the Shelby County Jail.”75 He also found that that “Wellpath leadership needs to be more aggressive and more vocal about protecting the vulnerable inmates in their care” and that it should insist that “harmful practices [to their patients] be discontinued.”76
45. Prior to the Court’s Order that the Jail produce a list of medically vulnerable and disabled detainees, the Jail did not have such a list. Dr. Donna Randolph, the Shelby County Jail Medical Director, testified that she was not aware of such a list.77 She stated that she neither reviewed detainees’ medical histories to determine whether they are at high risk from COVID-19 nor did she know if anyone else had.78
72 COVID-19 in Racial and Ethnic Minority Groups, Centers for Disease Control and Prevention (June 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/racial-ethnic-minorities.html (last visited July 14, 2020).
73 The Color of Coronavirus: COVID-19 Deaths by Races and Ethnicity in the U.S., APM RESEARCH LAB (July 8, 2020), https://www.apmresearchlab.org/covid/deaths-by-race.
74 Tiffany Ford, et al., Race Gaps in COVID-19 Deaths Are Even Bigger Than They Appear, Brookings (June 16, 2020), https://www.brookings.edu/blog/upfront/2020/06/16/race-gaps-in-covid-19-deaths-are-even-bigger-than-they-appear/ (last visited July 14, 2020).
75 Brady Report, ECF No. 80, Pg.ID 1187. 76 Brady Report, ECF No. 80, Pg.ID 1189. 77 D. Randolph Dep. Tr. 85:11–85:14. 78 Id. at 85:15-85:20.
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46. Chief Fields testified that he relied on Wellpath to construct the list, but he did not know how it was prepared or if the list was accurate.79
47. Chief Fields testified that not until the Order of this Court did the Jail develop a list of detainees vulnerable to COVID-19,80 which could explain why, notwithstanding the Court’s notice on May 27 that, “if I do require you to turn over the list at some point, I’m going to want that list turned over immediately,”81 and despite the Court’s “hope” that Defendants were tracking the information “as people are housed,”82 Defendants still required an extension of the deadline before filing it with the Court.83
48. Dr. Donna Randolph testified that, despite the COVID-19 pandemic, she did not treat detainees with chronic conditions any differently from the rest of population, stating, “I just try to take care of everybody the same and try to keep everybody safe, whether they have a chronic condition or they don’t.”84
49. Instead, according to Mr. Brady, “[t]he vulnerable inmates/ADA inmates . . . are scattered throughout the jail in all security levels on all floors.”85 He recommended that the Jail “identify living units where the vulnerable population can be sequestered away
79 Hr’g Tr. 87:20-88:16 (July 13, 2020), ECF No. 111. 80 Hr’g Tr. 87:20–88:2 (July 13, 2020), ECF No. 111. 81 Hr’g Tr. 102:18–103:1 (May 27, 2020), ECF No. 36. 82 Id. at 104:12–19. 83 See Respondents-Defendants’ Motion, ECF No. 40. 84 D. Randolph Dep. Tr. 88:20–89:8. 85 Brady Report, ECF No. 80, Pg.ID 1180.
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from the rest of the general populations.”86 And, Mr. Brady identified housing that could be used to segregate the medically vulnerable population.87
50. Dr. Venters also reported that there is no “plan to cohort or house together people who are medically vulnerable,” which is a “basic approach that allows for increased focus on screening, infection control and social distancing among the most vulnerable detained people.”88
51. Based on his inspection, Dr. Venters observed that there “did not appear to be any specific effort to create a COVID-19 plan for the care of each medically–vulnerable patient.”89 For example, Jail staff have never asked Mr. Leaks whether he needed any modifications or accommodations in the 5B pod where he is housed in light of his medical conditions and the COVID-19 pandemic.90
52. Dr. Venters also observed that there is no daily screening of their temperature or for symptoms of COVID-19.91 And, Dr. Venters noted that there is no plan of care for those patients who are recovering from COVID-19.92 Mr. Pigram noted that persons quarantined in Pod 6B after testing positive for COVID-19 were not given medical care.93 When persons in quarantine with COVID-19 asked for Tylenol for headaches, they
86 Id. at Pg.ID 1188. 87 Id. 88 Venters Report ¶ 25(a) (emphasis added). 89 Id. ¶ 25(c). 90 Hr’g Tr. 29:3–12 (July 10, 2020), ECF No. 108. 91 Id. ¶ 25(b) 92 Id. ¶ 25(d) 93 Hr’g Tr. 95:8–95:16 (July 10, 2020), ECF No. 108.
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were told to order Tylenol on commissary.94 However, only ibuprofen was available on commissary, which is not recommended for COVID-19 patients.95 Mr. Pigram put in a sick call the day he arrived in 6B, but did not get an answer until one week later.96
Individuals experiencing symptoms were told to put in sick calls, and then told that they were being referred to a physician, but they never saw a physician.97
V. Adequate Social Distancing Is Impossible at the Jail. 53. The CDC defines social distancing as “the practice of increasing the space
between individuals and decreasing the frequency of contact to reduce the risk of spreading
a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic).98 Social distancing is the “cornerstone of reducing transmission of respiratory diseases such as COVID 19.”99 Wearing masks and increasing cleaning, although helpful, are not substitutes for social distancing.100 According to Mr. Brady, one
94 Id. at 95:8–20. 95 Id. at 95:21–96:5. 96 Id. at 96:13–17. 97 Id. at 96:13–24. 98 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities, CDC, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (last reviewed July 15, 2020). 99 Id.; see also Griffin Decl. ¶ 4 (“One known effective way to reduce the risk of infection is to practice ‘social distancing.’”). 100 Hr’g Tr. 79:14–80:1 (May 27, 2020), ECF No. 36 (Q: Can’t [the issue of asymptomatic or presymptomatic spread] be addressed with masks, potentially gloves, . . . . cleaning supplies . . .? A: Well, all the efforts that you’re mentioning, you know, would be helpful, but they really are not foolproof. . . . The mask does not completely block transmission of the virus.); id. at 80:2–6 (Even with mask use and cleaning services, an inability to practice social distancing “presents a constant risk that people that are housed in the facility could get infected.”)
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of the core principles for any COVID-19 operational response in jails is social distancing.101
54. Detainees testified, and were subject to cross-examination, regarding the impossibility of social distancing in the Jail. Mr. Pigram testified that cellmates spend 18 hours a day in their cells together, that it is impossible to remain six feet apart there, and that they can reach out and touch one another from any place in the cell.102 Mr. Leaks also testified that it is impossible to keep six feet of distance from others in the line for meals or when eating at the tables or in their bunks.103 Several detainees reported to Mr. Brady that “social distancing is not possible.”104
55. For example, in H pod, where Plaintiff Favian Busby is assigned, 42 men share a common area which they must use to eat meals, recreate, and receive medication at the time this motion was filed.105 Of those 42, 26 had a cellmate.106 During meals and while watching TV or playing cards, detainees sit at tables four feet in diameter where they cannot maintain social distancing.107 Security staff in H pod move throughout the pod in close proximity to incarcerated people.108
101 Brady Report, ECF No. 80, Pg.ID 1173. 102 Hr’g Tr. 88:17–89:8 (July 10, 2020), ECF No. 108. 103 Hr’g Tr. 44:17–45:6 (July 10, 2020), ECF No. 108. 104 Brady Report, ECF No. 80, Pg.ID 1183. 105 First Spickler Decl. ¶¶ 11, 13, 16. 106 Id. ¶ 13. 107 Id. ¶¶ 13, 16. 108 Id. ¶ 15.
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56. As of July 10, 2020, Mr. Leaks is housed in 5B pod which is an open dormitory-style unit with 32 bunk beds.109 The dormitory is approximately 50’ x 160’.110 As of June 10, there were 22 men in 5B.111 Mr. Leaks slept on the lower section of a bunk positioned approximately two feet from another bunk bed.112 A detainee at one bunk could easily reach out his hands and touch a detainee on a another bunk.113 Bunkbeds are placed about three and a half feet apart.114 The detainees are assigned to a specific bed by classification and cannot change the assignment themselves.115 The detainees spend on average 14 to 15 hours a day at their bunks.116 They are on lock down, for example, from 9:00 p.m. to 8:00 a.m. and cannot leave their bunks during that time.117 They have to stay in their bunks even if someone is coughing or sick right next to them.118 Detainees in 5B share nine toilets, four showers, and six phones.119
57. Mr. Leaks sleeps right next to the restroom door, which is three and a half feet away from his bed.120 Detainees in 5B walk past Mr. Leak’s bed every time they have
109 Third Spickler Decl. ¶¶ 10, 11. 110 Id. ¶ 11. 111 Id. ¶ 10. 112 Id.; Hr’g Tr. 36:6‒36:12; 37:9‒37:16 (July 10, 2020), ECF No. 108. 113 Hr’g Tr. 37:6‒37:12 (July 10, 2020), ECF No. 108. 114 Id. at 37:3‒37:16. 115 Id. at 36:16‒37:2. 116 Id. at 37:22‒37:25. 117 Id. at 38:15‒39:2. 118 Id. 119 Third Spickler Decl. ¶ 10. 120 Hr’g Tr. 37:25‒38:6 (July 10, 2020), ECF No. 108.
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to use the restroom.121 They typically walk within one foot of Mr. Leaks’ bunk, and sometimes even touch the bunk in the middle of the night.122
58. The eating area in 5B has seven tables on one side and five tables on the other.123 The tables are three and a half feet wide, and as many as five people can sit at the table at a given time.124 A detainee sitting at a table can easily touch the hand of another man sitting across him.125 The tables are in close proximity to the telephones, the TV, and five or six bunks.126
59. During meal time, the detainees in 5B line up behind each other to receive their trays through the bars at the sally port separating the pod and the hallway outside.127 It is impossible to keep a six feet distance from others in the line.128 After they receive their trays, detainees eat at the tables for 20 minutes before the trays have to be taken out of the pod.129 It is impossible to keep a six feet distance from others at the table.130 Detainees can also eat at their bunks.131 It is similarly impossible to keep six feet of distance from others while eating at the bunks.132 Mr. Leaks, who is medically vulnerable,
121 Id. at 38:8‒38:13. 122 Id. 123 Hr’g Tr. 39:4‒39:16 (July 10, 2020), ECF No. 108. 124 Id. 125 Id. at 43:22‒44:3. 126 Id. at 39:18‒39:23. 127 Hr’g Tr. 39:25‒40:13 (July 10, 2020), ECF No. 108. 128 Id. at 44:17‒44:21. 129 Id. 130 Id. at 44:17‒44:21. 131 Id. at 44:4‒44:15. 132 Id. at 44:17‒45:6.
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used to eat at his bunk often. Right before Mr. Brady’s visit he was moved. He has since stopped eating at his bunk because his new bunk is too close to the restroom.133
60. Detainees in 5B use phones throughout the day.134 The phones are near to the tables, the bathrooms, and some of the bunks.135 When detainees are using the phones, it is not possible for them to socially distance from others in the pod.136 The phones are also placed right next to each other, so a detainee on one phone could easily touch another one on the phone next to him by just bending his elbow a little.137
61. During pill call, detainees line up behind each other to receive their medication.138 As of July 10, approximately 16 to 20 people stand in line at a time for pill call.139 During those times, it is impossible to keep six feet of distance from others in the line.140
62. Pod officers walk around 5B pod for security checks and in so doing walk within a few feet of the detainees incarcerated there.141 Two officers in 5B tested positive for COVID-19 and took leave from work for about six weeks in May.142 Before they tested
133 Id. 134 Id. at 56:22‒57:19. 135 Id. at 57:21‒58:11 136 Id. at 60: 4‒60:14. 137 Id. 138 Id. at 51:14‒52:3. 139 Id. at 52:4‒52:6. 140 Id. at 52:7‒52:21. 141 Id. at 46:12‒46:19. 142 Id. at 48:11‒48:23.
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positive, they were in close contact with the detainees in 5B, handing out trays and doing random searches, including pat-downs, of the detainees every day.143
63. A week before Mr. Brady’s inspection, the Jail taped the floor around the phones in 5B and in some other areas without giving detainees instructions as to what the tape is for.144 By July 10, some of the tape had peeled off.145
64. In L Pod, where Michael Edgington was housed as of May 20, 2020, most detainees share a 6’ x 10’ cell with one other person.146 At meal times, 30-33 detainees sit between four tables; each table is approximately four feet in diameter, with room for four seats around it.147 People line up next to each other to get their trays.148 “Rockmen”— detained persons with special jobs and privileges—wear gloves and masks while serving food, but the men lining up for food are very close to each other while they wait.149 By the television in L-pod, there are 10-13 loose chairs, where detainees sit side by side with little room between them.150 There is one shower with three shower heads, in which multiple people shower at once and it is not possible to stay six feet from each other inside the
143 Id. at 48:24‒49:9. 144 Id. at 60:16‒61:14. 145 Id. at 60:16‒61:16. 146 Decl. of J. Spickler (“Second Spickler Decl.”), ECF No. 5, ¶ 6. 147 Id. ¶ 7. 148 Id. ¶ 8. 149 Id. ¶ 10. 150 Id. ¶ 7.
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shower.151 People generally line up for the shower in close proximity to each other.152 Some people also line up in close proximity daily to get their medication.153
65. In Pod 4A, where Plaintiff Class Member Robert Pigram was housed as of July 10, 2020, the cells are approximately 4’ to 5’ x 7.5’, and contain a bunkbed, toilet, sink, desk, and stool.154 The top and bottom bunks are approximately 2’ to 2.5’ apart.155 Cellmates spend 18 hours a day in their cells together.156 During that time, it is impossible to remain six feet apart—detainees can reach out and touch one another from any place in the cell.157 The communal area of Pod 4A is approximately 12’ x 30’ and holds approximately 44 people; it is impossible to remain six feet apart in the communal area.158
66. Defendants are aware that adequate social distancing is impossible at the Jail. Chief Fields testified that detainees cannot always stay six feet apart and that detainees in isolation are unable to keep six feet apart “at all times.”159 Dr. Bruce Randolph testified that it is impossible for detainees to remain six feet apart at all times in the Jail.160 This is an inherent shortcoming of the structure of the Jail that cannot be remedied by attempted changes in procedure.
151 Id. 152 Id. ¶ 9. 153 Id. ¶ 12. 154 Hr’g Tr. 87:2–87:17 (July 10, 2020), ECF No. 108. 155 Id. at 87:18–87:20. 156 Id. at 88:17–87:24. 157 Id. 89:2–89:8. 158 Id. 103:4-103:28. 159 Fields Dep. Tr. 76:17–77:3. 160 B. Randolph Dep. Tr. 79:11–15.
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67. Mr. Brady found that “the Shelby County Jail is not maximizing its efforts to enforce social distancing in its living units.”161 The “only place” Dr. Venters “really saw social distancing in the whole facility was in the booking area.”162 Dr. Venters “observed a lack of social distancing through all areas of the Jail” and concluded that “social distancing is not being facilitated or practiced with the rigor required to prevent disease spread.”163 Dr. Venters also testified that there is “very little effort to implement social distancing, particularly in the common spaces, outside housing areas, also inside the housing areas, both in the sleeping areas as well as the common spaces.”164
68. Although the Jail has placed six-foot markers to encourage social distancing, Dr. Venters observed that even with the markers, people are still brushing up against each other, and that the “most crucial element” of ensuring social distancing “is the training and behavior of the security staff.”165 During pill call, social distancing is only being practiced, said Dr. Venters, “for those four or five seconds” when detainees step to the pill call window to receive medication.166
69. Mr. Brady also concluded that “there is no concentrated and coordinated effort to assemble and present information to the courts regarding an inmate’s medical conditions that may make him vulnerable to serious illness or death while housed in the
161 Brady Report, ECF No. 80, Pg.ID 1189. 162 Hr’g Tr. 154:18–23 (July 10, 2020), ECF No. 108. 163 Venters Report ¶ 15(a). 164 H’rg Tr. 119:19–22 (July 10, 2020), ECF No. 108. 165 Hr’g Tr. 159:6–14 (July 10, 2020), ECF No. 108. 166 Hr’g Tr. 156:3–5 (July 10, 2020), ECF No. 108.
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jail.”167 He also found that there is no “consistent multi-disciplinary effort within the jail to secure alternative custody venues for vulnerable inmates.”168
70. Dr. Donna Randolph confirmed that, “in the context of the coronavirus,” she had not worked with the Jail’s Special Assistant-Criminal Justice Expediter “about the potential release of any detainees” because her “patients are well cared for” and because she “didn’t have anybody that [she] – that even though they fit into [the medically vulnerable] categories], that [she] was concerned about.”169
71. According to documents produced by Defendants in this action, for the period between March 12, when the Tennessee state governor declared a state of emergency, and June 24, the average population in the Jail was 1,854. On June 24, the total population was 1,826.170 As of July 10, the population was 1,857.171 And, there are still 450 medically vulnerably and/or disabled detainees in in the Jail who are members of the Plaintiff Classes.172
167 Brady Report, ECF No. 80, Pg.ID 1193. 168 Id. 169 D. Randolph Dep. Tr. 121:9–19. 170 See “Daily Population 3-12-20 to 6-24-20” (attached hereto as Ex. E). 171 See Shelby County Sheriff, “Weekly Cornavirus/Covid-19 Update” (Jul. 10, 2020),
available at https://twitter.com/shelbytnsheriff?lang=en. 172 See ECF Nos. 43 and 44.
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VI. The Jail Does Not Test Adequately for COVID-19. A. To Track and Contain the Spread of COVID-19, Comprehensive Testing is Necessary.
72. COVID-19 can be spread by persons not experiencing symptoms, and asymptomatic spread of the disease appears to be higher than other illnesses.173
73. On June 13, 2020, the CDC formally recommended testing of all persons in
“settings that house vulnerable populations in close quarters for extended periods of time,”
including “correctional and detention facilities,” in order to enable “early identification of asymptomatic individuals.”174 The CDC further recommends “initial testing of everyone
residing and/or working in the setting, [r]egular (e.g., weekly) testing of everyone residing
and/or working in the setting, and [t]esting of new entrants into the setting and/or those reentering after a prolonged absence (e.g., one or more days).”175
74. Mr. Brady testified that testing is a “much more scientifically sound way to
detect the COVID-19 virus in asymptomatic individuals and symptomatic individuals” than “timing out” the virus.176 He agreed that, in fact, the “only definitive way to know who has COVID-19 is through testing.”177
173 Hr’g Tr. 138:15–18 (July 10, 2020), ECF No. 108 ([I]t might be the case that a significant amount of the virus could be stopped if we did not have asymptomatic spread, but unfortunately, with this virus, we have a fair amount of asymptomatic spread.); Hr’g Tr. 79:9–13 (May 27, 2020), ECF No. 36 ([T]here’s no way to ensure that this afternoon, someone was coming on duty for the afternoon or the evening shift won’t be asymptomatic or presymptomatic and bring the virus into the jail and thereby risk exposing anyone they initially come into contact with.).
174 Overview of Testing for SARS-CoV-2, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/ hcp/testing overview.html#asymptomatic_without_exposure (last updated June 13, 2020).
175 Id. 176 Hr’g Tr. 17:15–18:12, (July 1, 2020), ECF No. 84. 177 Id. 18:15–18.
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75. Defendants are aware that COVID-19 positive individuals may be contagious even though they are not asymptomatic.178 Dr. Venters testified that it has been general knowledge from around mid- to late-March that “COVID-19 can be transmitted from person to person before somebody develops symptoms.”179
B. The Jail Failed to Test Staff and Detainees for Long Periods of Time. 76. The Jail has not tested either staff or detainees for long periods of time, despite knowing that the population contained a number of positive COVID-19 individuals. Between April 24, 2020 and April 30, 2020, thirty-two staff members were tested on-site for COVID-19, five of whom tested positive.180 The first tests for COVID-19 among detainees took place between March 24, 2020 and April 9, 2020.181 Eighteen tests were performed on eighteen detainees, all of whom tested positive. Between March 24, 2020 and April 30, 2020, of the 334 detainees tested for COVID-19, 157 tested positive.182 77. No testing was conducted on staff between April 30, 2020 and June 12, 2020.183 As of June 9, 2020, no one in any of the three dormitory-style pods on the 5th floor of the Jail had been tested for COVID-19, despite several people displaying possible symptoms.184 Similarly, no testing was conducted on detainees between April 30, 2020
178 B. Randolph Dep. Tr. 63:7-12. 179 Hr’g Tr. 167:17–22 (July 10, 2020), ECF No. 108. 180 Respondents-Defendants’ Responses to Plaintiffs’ First Set of Expedited
Interrogatories, ECF No. 103-2, Pg.ID 1670–71. 181 Id. 182 Id. 183 Id. 184 Dozier Decl. ¶¶ 12–13.
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and June 10, 2020. 185 Testing resumed on June 10, 2020, the same date on which the Court denied Defendants’ motion to dismiss.
78. Chief Fields testified that, starting in the middle of April the Jail started to get notices that there was a shortage of test kits and for most of May the Jail did not have testing kits.186 But Dr. Bruce Randolph, the Health Officer at the Shelby County Health Department, testified that the Health Department had testing kits for the Jail and has not denied a request by the Jail for testing kits.187
79. Cases continue to climb among the staff and detainee population at the Jail. As of July 10, 2020, the Shelby County Sheriff's Office (“SCSO”) reported an increase of seven new detainee cases from the week prior, and among agency employees, SCSO reported an increase of 11 cases in the same period.188
C. The Jail’s “Non-Test Based” Approach Is Inadequate. 80. Contrary to the CDC’s recommendation for a “wider approach to asymptomatic testing” for jails and other congregate settings,189 the Jail employs a “nontest based” approach to COVID-19.190 As Mr. Brady testified, “[a] nontest-based strategy
185 Id. 186 Hr’g Tr. 95:14–19 (July 13, 2020), ECF No. 111. 187 B. Randolph Dep. Tr. 48:2–13. 188 Sarah Macaraeg, COVID-19 Cases Spike in Shelby County Corrections as Hearings
Continue in Class-action Jail Suit, MEMPHIS COMMERCIAL APPEAL (July 12, 2020), https://www.commercialappeal.com/story/news/health/2020/07/12/covid-19-casesspike-shelby-county-jails-lawsuit-continues/5424075002/ 189 Hr’g Tr. 163:14–22 (July 10, 2020), ECF No. 108 (“In May, the CDC started to explicitly link correctional settings to other congregate care settings” which “should consider a much more broad approach to testing, which would . . . include asymptomatic folks.”). 190 Brady Report, ECF No. 80, Pg.ID 1176.
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. . . leaves too many loopholes and too many gaps to be effective.”191 As a result, “the testing is not adequate to track infections in the facility.”192
81. The Jail does not test asymptomatic patients, at intake or otherwise, even though they are aware that asymptomatic patients may be contagious.193 The protocols that the Jail relies on do not include testing asymptomatic patients194 and the Shelby County Health Department does not recommend testing of asymptomatic individuals.195 Both the
Jail’s protocols and the Health Department’s recommendations contravene CDC guidelines.196
82. Moreover, “given the punitive conditions in which those who test positive
for COVID-19 are housed . . . [detainees] are disincentivized from reporting symptoms or taking a COVID-19 test.”197 Dr. Venters testified that people with whom he spoke
complained of being locked up in the medical isolation unit without being allowed out of their cells and without a health checkup from Friday evening to Monday morning.198 Detainees in other parts of the Jail have expressed similar concerns.199 As a result, said Dr.
191 Hr’g Tr. 3:6–8 (July 1, 2020), ECF No. 84. 192 Venters Report ¶ 19. 193 D. Randolph Dep. Tr. 36:4–19; see also Hr’g Tr. 167:3–5 (July 10, 2020) (“We’ve
known from March . . . that there was asymptomatic transmission of COVID-19.”). 194 Defs’ Hr’g Ex. 3, Wellpath Policy, last revised on June 10, 2020, ECF No. 101-7. 195 B. Randolph Dep Tr. 58:16–21; 113:10–12. 196 Hr’g Tr. 163:14–164:17 (July 10, 2020), ECF No. 108 (noting CDC
recommendations to increase testing, including for asymptomatic people, and other correctional facilities that conducted asymptomatic testing in March and April). 197 Hr’g Tr. 120:6–12 (July 10, 2020), ECF No. 108. 198 Id. 199 See First Spickler Decl. ¶ 6 (noting that several people in H pod with Plaintiff Busby refused to report symptoms out of concern for being sent to the 6th floor quarantine pods).
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Venters, incarcerated people “were reluctant to report symptoms or that they were reluctant to get tested.”200
83. Rather than seek out people who may be contagious, or encourage detainees to come forward with their symptoms, Defendants place an “obligation” on detainees to report symptoms.201
84. The testing at the Jail, therefore, is “too limited” particularly in light of the concerning inability to undertake contact tracing, social distancing, and “the lack of ability to keep the virus from spreading around outside places like quarantine units, new admission units, [and] the medical isolation unit.”202
D. The Jail Failed to Adhere to Wellpath’s Policy for COVID-19 Testing. 85. The Jail at all times lacked a testing policy.203 The Jail also has no plans to conduct initial and periodic testing of individuals in accordance with CDC recommendations.204 Instead, the Jail relied on Wellpath, a third-party medical provider, to develop a testing policy. 86. Wellpath issued a policy that addressed post-testing management of patients who have tested positive.205 The policy calls for a 21-day quarantine for a patient who has
200 Hr’g Tr. 120:17–121:1 (July 10, 2020), ECF No. 108. 201 Id. at 177:13–178:11 (Q: “Well, I mean, there is an obligation upon someone who
feels sick to tell somebody.” A: “[I]n managing outbreaks behind bars . . . and this is true of basic public health . . . when we want to find a problem, we go look for it. We don’t wait for it to come to us. . . . [T]hat approach” will result in “getting people sicker and later.”). 202 Hr’g Tr. 121:18–23 (July 10, 2020), ECF No. 108. 203 Fields Dep. Tr. 41:7–19 204 B. Randolph Dep. Tr. 57:25–58:12 205 Wellpath Policy, approved on May 12, 2020, ECF No. 27-1, Pg.ID 460–63.
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tested positive, followed by two negative tests, before the COVID-19 positive patient is returned to the general population.206
87. Dr. Donna Randolph testified under oath that at no time did the Jail ever implement the Wellpath testing recommendation. Instead, after a supposed 21-day quarantine, detainees who had previously tested positive were released into the general population without any further testing.207
88. Dr. Donna Randolph also testified that the Jail has never followed Wellpath’s recommendation for testing patients at intake, or for testing them again seven and ten days after a positive test result.208
89. Mr. Brady confirmed that, if a detainee tests positive for COVID-19 at intake, his temperature is taken for 21 days, but no additional COVID-19 tests are performed before the detainee is released into general population.209
90. Indeed, Mr. Pigram testified that detainees who had tested positive for COVID-19 and who insisted on being tested before being released back to the general population were pepper sprayed by Jail staff for refusing to leave their unit without being tested—notwithstanding the adverse effects that pepper spraying could have on them while they were infected with COVID-19—but they were not tested before they were reintroduced to general population.210
206 Id. 207 D. Randolph Dep. Tr. 100:10–101:19. 208 Id. at 35:23–37:4. 209 Brady Report, ECF No. 80, Pg.ID 1176. 210 Hr’g Tr. 98:1–102:3 (July 10, 2020), ECF No. 108.
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91. Despite knowing of this incident,211 from April until the second day of the evidentiary hearing in this case on July 13, Chief Fields wrongfully believed that detainees who tested positive had to have two negative tests before they were released back into the general population. That was never happening. At the July 13 evidentiary hearing, Chief Fields acknowledged that these detainees, who had tested positive for COVID-19, were not actually re-tested before they were reintroduced to the general population.212
92. Chief Fields admitted on cross examination that failure to test people who had tested positive and letting them back into the general population increased the “risk of the spread of virus throughout [the] entire facility.”213 Indeed, Chief Fields admitted that, because they were letting people back into the general population without testing them, whatever efforts the Jail had made to contain the spread of the virus “would be for naught.”214 VII. The Jail Has No Effective Medical Isolation or Quarantine.
93. According to Dr. Venters, “‘medical isolation’ refers to the practice of taking people who have COVID-19 or have symptoms of COVID-19, separating them from other people, and providing them with additional surveillance and care.”215 Medical isolation is a critical component of contact tracing: when a new COVID-19 case is
211 Id. 212 Hr’g Tr. 94:20–95:5; 97:10–98:3 (July 13, 2020), ECF No. 111. 213 Hr’g Tr. 80:15–19 (Jul. 10, 2020), ECF No. 111. 214 Hr’g Tr. at 80:20–25 (July 10, 2020), ECF No. 111. 215 Venters Report ¶ 21.
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identified, the appropriate response is to “find[] all of the known contacts of that person,” “identify[] them accurately,” and “put[] them somewhere separate.”216
94. As Dr. Venters explained, absent comprehensive testing, mitigating the spread of the disease at the Jail required “rigorous isolation of persons with potential and known exposure to the disease.”217
A. The “Medical Isolation Unit” for COVID-19 Positive Detainees Provides No Isolation.
95. At the Jail, the medical isolation unit is on 2A, where people with confirmed cases of COVID-19 are detained. Dr. Venters testified that he had “very grave concerns about the medical isolation practices” because the medical isolation unit on 2A is enclosed by bars, rather than a solid door.218 It has “no physical separation” and is not actually isolated “because of the open nature and the free flow of air and virus from the people who are positive in that unit to the unit across the way. . . the common areas that connect to that unit.”219 Again, this is an inherent problem with the structure of the Jail that cannot be remedied through a change in procedures.
96. Ensuring that there is “a physical separation between the COVID patients and everybody else” is “the most basic thing that the CDC tells us we need,” according to Dr. Venters.220 Dr. Venters stated that “the open nature of the medical isolation unit represents a deviation from CDC recommendations and basic infection control
216 Hr’g Tr. 122:9–19 (July 10, 2020), ECF No. 108. 217 Venters Report ¶ 20. 218 Hr’g Tr. 123:14–21 (July 1, 2020), ECF No. 108. 219 Id. 220 Id. at 180:5–11.
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principles.”221 Dr. Venters opined that the medical isolation unit on 2A “represent[s] a threat to the health of staff and detainees.”222
B. There Is No Isolation Because Detainees Congregate in Advance of Court Visits.
97. According to Mr. Brady, although the Jail’s stated policy is that post-intake, detainees “must remain in medical isolation for 21 days prior to being released to general population,”223 in fact detainees are not isolated for the full 21-day period.224 Instead, as Mr. Brady testified, throughout the 21-day period, detainees “are required to be moved from their isolation units through the court tunnel and into holding cells for the General Sessions Courts and the Criminal Courts of Shelby County. The medically isolated inmates are mixed in the Court Division specific holding cells with 20-25 other general population inmates from throughout the jail for up to 4 hours . . . in the morning and afternoon multiple times a week.”225
98. Mr. Brady observed no social distancing in two of the three holding cells.226 Mr. Leaks testified that the area in which detainees are held from one and a half to five hours a day awaiting court is “packed to the limits.”227
221 Venters Report ¶ 22. 222 Id. 223 Brady Report, ECF No. 80, Pg.ID 1176. 224 Hr’g Tr. 30:16–19 (July 1, 2020), ECF No. 84. 225 Brady Report, ECF No. 80, Pg.ID 1181; Hr’g Tr. 30:20–31:25 (July 1, 2020), ECF
No. 84. 226 Brady Report, ECF No. 80, Pg.ID 1181. 227 Hr’g Tr. 32:23–33:11 (July 10, 2020), ECF No. 108.
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99. Mr. Brady found that this practice “defeats the whole purpose of medical isolation”228 and “undermines the integrity and purpose of the 21-day medical isolation that is designed to prevent the introduction of the Covid-19 virus into the jail population.”229 As a consequence, Mr. Brady concluded that the practice “unquestionably puts vulnerable inmates and the ADA inmates at an unreasonable risk of harm from potential exposure to asymptomatic Covid-19 positive inmates.”230
100. Dr. Venters was “left with the impression that the purported 21-day” period was “not being consistently followed.”231 Dr. Venters asked several times for information about the isolation practices, and was told by leadership that “people might be [in isolation] for short periods of time before going to another spot in the facility.”232
101. In speaking with patients in medical isolation in Unit 2A, Dr. Venters also found that the daily health assessments of the individuals who have tested positive are inadequate. The assessments are conducted through the bars, without any assessments on weekends, and no one listens to their lungs.233
102. The leadership at the Jail, including Chief Fields, Assistant Chief Hubbard, Dr. Donna Randolph, and Mr. Jeremy Sanders, “[a]ll verified that [the movement of detainees out of quarantine on the lower level] was taking place.”234 In an April 28, 2020
228 Hr’g Tr. 32:8-12 (July 1, 2020), ECF No. 84 229 Brady Report, ECF No. 80, Pg.ID 1187. 230 Id. at Pg.ID 1181. 231 Venters Report ¶ 15(b). 232 Hr’g Tr. 126:6–9 (July 10, 2020), ECF No. 108. 233 Venters Report, ¶ 26. 234 Brady Report, ECF No. 80, Pg.ID 1181.
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email, Tiffany Ward, Assistant Chief, stated as a matter of policy: “Inmates in quarantine may go to court. The Court Tunnel will call for the inmate only when the court division is ready for the inmate.”235
103. Despite knowing that its isolation practices were ineffectual, only after Mr. Brady filed his report did the Jail attempt to work with the Shelby County Criminal Courts to arrive at a safer procedure for bringing detainees to Court.236 These attempts have ineffectual because, even if they reduce the amount of traffic in the tunnel between the Jail and the courts, detainees are still required to leave isolation and to mix with detainees from the general population. As of July 13, the Jail still had not implemented sufficient video feeds to allow detainees to appear remotely.237
C. The Jail Does Not Quarantine Detainees Who May Have Been Exposed to the Virus.
104. According to Dr. Venters, “[q]uarantine” refers “to separating people who may have been exposed to COVID-19 from everyone else for a period of up to 14 days with daily surveillance for new symptoms.”238 Dr. Venters explained that the rationale behind quarantine, as delineated by the CDC, is that if the Jail wants to “control the disease,” they need to “be able to have some sense of where the next case is coming from,” which is not possible if “the quarantine group is kind of mixing with other groups.”239
235 Emails from T. Ward to L. Talley et al. RE: Quarantine / Isolation Pods, May 8, 2020 (SCSO#000032) (attached hereto as Ex. D).
236 Hr’g Tr. 58:4–13 (July 13, 2020), ECF No. 111. 237 Hr’g Tr. 139:10–21; Brady Report, ECF No. 80, Pg.ID 1188. 238 Venters Report ¶ 21. 239 Hr’g Tr. 127:20–128:3 (July 10, 2020), ECF No. 108.
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105. But the Jail’s so-called “quarantine units,” like its so-called “medical isolation units,” are fronted by open bars where “three units come together in a small shared hallway,” allowing “for free movement of air (and virus) into and out of the three units.”240 As Dr. Venters testified, “this is particularly problematic for quarantine” because the purpose of quarantine is “to put people who have potentially been exposed to COVID in one spot and . . . to keep them separate from everybody else.”241
106. Dr. Venters stated that he has “never seen a facility rely on a housing unit to serve as an isolation or quarantine unit for the purposes of disease control that has open bars and no solid door,” which he opined as a “deeply disturbing practice that. . . is out of touch with basic practices of infection control.”242 As with social distancing generally and with the medical isolation unit, this is a structural problem with the Jail facility.
VIII. The Jail Has Not Made Reasonable Modifications for Detainees with Disabilities.
107. It is undisputed that Plaintiffs, and the members of the Subclass that they represent, have disabilities within the meaning of the ADA and the Rehabilitation Act.
108. It is undisputed that if the Subclass becomes infected with COVID-19, their chances of serious illness or death is higher than for people who are not medically vulnerable.
109. Chief Fields, as director of the Jail, oversees the implementation of the Jail’s ADA policy.243 He has delegated responsibility for ensuring the Jail’s compliance with the
240 Venters Report ¶ 21, Hr’g Tr. 126:24–127:6 (July 10, 2020), ECF No. 108. 241 Hr’g Tr. 126:24–127:6, (July 10, 2020), ECF No. 108. 242 Venters Report ¶ 28. 243 Hr’g Tr. 84:14–24 (July 13, 2020), ECF No. 111.
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ADA to Wellpath.244 However, Dr. Donna Randolph does not know whether anybody oversees the Jail’s compliance with the ADA.245 She also does not know to what kinds of disabilities the ADA applies.246
110. Chief Fields is also unfamiliar with the disabilities that are covered by the ADA and he has never heard of the Rehabilitation Act.247 Chief Fields is unable to say who in the Jail—as a group or a class of people—is protected by the ADA, despite the fact that, under the Jail’s policy for ADA accommodation requests, Chief Fields is the final arbiter regarding any requests that are in dispute.248 And, during his entire tenure as Chief Jailer, Chief Fields has not received a single appeal.249
111. Chief Fields was unable to estimate how many requests for accommodations under the ADA the Jail receives per month and does not know on what the Jail’s decisions to grant or deny a request for an accommodation are based.250 Chief Fields is “responsible for reviewing ADA grievances,” but he has never seen a grievance form filed relating to a request for an accommodation.251
112. According to Chief Fields, the only accommodation that is being made for disabled detainees who are medically vulnerable to COVID-19 is that they are being housed based on the decisions of the medical staff and they are given more direct attention
244 Fields Dep. Tr. 35:11–36:4. 245 D. Randolph Dep. Tr. 124:13–15. 246 Id. at 123:19–21. 247 Hr’g Tr. 84:25–85:1 (July 13, 2020), ECF No. 111; Field Dep. Tr. 88:17–19. 248 Id. at 85:3–19. 249 Id. at 85:20–86:5. 250 Fields Dep. Tr. 44:16–19, 45:4–11. 251 Id. at 113:10–14, 114:25–115:5.
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from the medical staff. That is all Chief Fields contends is being done for disabled detainees,252 but even this testimony is disputed by Mr. Leaks and Mr. Pigram.253
113. Conversely, it is undisputed that, other than possible extra “attention” from medical staff, while detained at the Jail people with disabilities who are particularly vulnerable to COVID-19 receive no additional protection from infection, no greater access to social distancing, no greater access to PPE, and no socially distant way to access food, medical care, or pill call.254
114. Chief Fields testified that releasing detainees would neither have any impact on his ability to manage the Jail, nor require a fundamental change in the purpose of the Jail, nor would granting Plaintiffs’ motion require the Jail to take any unreasonable steps or actions in terms of the core functions of the Jail.255
IX. Plaintiffs, and the Members of the Classes they Represent, Cannot Be Made Safe Now.
115. As Dr. Goldenson explained, “there can be no set of conditions that a jail could impose that would make the medically vulnerable reasonably safe,” because “given the nature of confinement . . . there’s not enough space to [social distance]” and because
252 Id. at 90:18–91:3. 253 Hr’g Tr. 30:16–20 (Jul. 10, 2020), ECF No. 108 (“Q: Mr. Leaks, I’m just wondering
if the jail staff have ever asked you if you needed any conditions changed in the pod given your conditions and the COVID-10 outbreak? . . . A: No, ma’am.”); id. at 84:14–23 (“Q: Mr. Pigram, since the COVID-19 pandemic broke out, have you ever been offered sort of special care by the jail staff to prevent you from contracting the virus, given your condition? . . . A: No special care. I only receive -- right now, I’m only taking folic acid and Tylenol, is the only things they’re giving me.”). 254 Fields Dep. Tr. 59:23–60:2; see D. Randolph Dep. Tr. 89:6–8 (“I just try to take care of everybody the same and try to keep everybody safe, whether they have a chronic condition or they don’t.”) 255 Id. at 92:1–16.
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“there’s really no way, given the fact that staff, including custody staff and medical staff are coming in and out on a daily basis . . . [that] even with the best screening that you can do, there’s no way to ensure that someone is not going to bring the virus into the facility.”256
116. Mr. Brady found that the Jail’s response to COVID-19 “is inadequate to protect the vulnerable inmates housed in the Shelby County Jail” because adequate social distancing among detainees is impossible, there is no adequate medical isolation, the Jail’s non-testing approach is “ineffective and useless,” and the Jail does not cluster the vulnerable detainees in housing units together away from the general population.257
117. Dr. Venters similarly concluded that, “because the improvements [he] recommend[ed]” could not “occur fast enough to protect medically vulnerable persons from COVID-19,” it was his “opinion that medically vulnerable people housed in the Shelby County Jail should be evaluated for release.”258
118. Dr. Venters reached this conclusion based on the “lack of . . . either capacity or willingness” to create protections for persons at high risk of serious illness at the Jail,259 and because the Jail lacks the facilities “to meet the basic needs for quarantine and medical isolation and cohorting of medically vulnerable patients.”260 Accordingly, Dr. Venters concluded that there “are some dynamics in the Jail that cannot be improved, which also
256 Hr’g Tr. 78:3–25 (May 27, 2020), ECF No. 36. 257 Brady Report, ECF No. 80, Pg.ID 1187. 258 Venters Report ¶ 32. 259 Hr’g Tr. 129:5–9 (July 10, 2020), ECF No. 108. 260 Venters Report ¶ 31(a); Hr’g Tr. 130:11–20 (July 10, 2020), ECF No. 108 (“Q: [D]o
you think if all these recommendations were adopted, that people at high risk of serious illness if they contract COVID-19 would be sufficiently safe? A: Not with the physical – not with the units I saw, no.”)
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render medically vulnerable people unsafe.”261 As a result, he found that “medically vulnerable patients are at elevated risk of COVID-19 as long as they are in the [Jail].”262
119. Plaintiffs are not safe and they cannot be made sufficiently safe now to prevent irreparable constitutional injury.
PROPOSED CONCLUSIONS OF LAW X. Plaintiffs Have Satisfied the Requirements for Injunctive Relief. 120. Plaintiffs applied for a temporary restraining order, see ECF No. 2, but because Defendants are on notice and the Court allowed time for extensive briefing and conducted several hearings, including a two-day evidentiary hearing and a hearing to question Mr. Brady, the Court should treat Plaintiffs’ motion as one for a preliminary injunction rather than for a temporary restraining order. See Malam v. Adducci, No. 2010829, 2020 WL 3512850, at *2 (E.D. Mich. June 28, 2020) (citing Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276, at *3 (E.D. Mich. May 9, 2020)). Here, the linguistic difference between a temporary restraining order and a preliminary injunction is largely academic as the same factors apply to both. See Perez-Perez, 2020 WL 23005276, at *3 (citing Ohio Republican Party v. Brunner, 543 F.3d 357, 362 (6th Cir. 2008)). 121. In determining whether to grant a preliminary injunction, courts evaluate four factors: whether (1) the movant has a strong likelihood of success on the merits; (2) the movant would suffer irreparable injury absent an injunction; (3) granting the injunction would cause substantial harm to others; and (4) the public interest would be served by granting the injunction. Ne. Ohio Coal. for Homeless and Serv. Emps. Int’l Union, Local
261 Venters Report, ¶ 31. 262 Venters Report, ¶ 31(a). Hr’g Tr. 130:11–20 (July 10, 2020), ECF No. 108.
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1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These four factors “are not prerequisites that must be met, but are interrelated considerations that must be balanced together. For example, the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movants will suffer absent the stay.” Id. (internal quotations omitted).
122. Plaintiffs face a high risk of irreparable injury absent an injunction, they are likely to succeed on the merits of their Fourteenth Amendment claims and of their ADA and Rehabilitation Act claims, and the public interest favors granting the relief they seek.
A. Plaintiffs Have Demonstrated a Likelihood of Irreparable Harm Absent an Injunction.
123. Plaintiffs are likely to experience irreparable injury absent an injunction, both in the form of loss of health or life and in the form of an invasion of their constitutional rights. See Malam, 2020 WL 3512850, at *3; Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“When constitutional rights are threatened or impaired, irreparable injury is presumed.”).
124. In considering the risk of irreparable harm, the Court should consider the current severity of the COVID-19 pandemic and the conditions at the Jail, including the extent to which any failure at the Jail to implement precautionary measures increases the risk to Plaintiffs. See Malam, 2020 WL 3512850, at *3.
125. Population reduction is significant only insofar as it allows detainees, including those who are asymptomatic but positive, to remain six feet apart at all times. See id. (finding that “[w]hether the Calhoun County Correctional Facility has a detainee population of three or 300, it fails to meet public health standards if those detainees cannot socially distance themselves.”).
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126. “A jail establishing COVID-19 precautions without ensuring adequate social distancing is the equivalent of ‘a NASCAR driver who spurns a seatbelt and helmet because she plans not to crash.’” Malam, 2020 WL 3512850, at *8 (quoting Savino v. Souza, Case No. 1:20-10617-WGY (D. Mass. June 18, 2020), ECF No. 225).
127. Because Plaintiffs are likely to succeed on the merits of their Fourteenth Amendment claims, “no further showing of irreparable injury is necessary.” Malam, 2020 WL 3512850, at *9 (citing Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984)).
B. Plaintiffs Have Demonstrated a Likelihood of Success on the Merits. Unconstitutional Punishment under the Fourteenth Amendment to the U.S. Constitution.
128. The gravamen of Plaintiffs’ claim is that there are no conditions of confinement that would permit their safe detention. Accordingly, the Court construes Plaintiffs’ lawsuit as challenging whether they can be safe in detention for the duration of the COVID-19 pandemic absent some change in the totality of the circumstances, such as a vaccine, therapeutic, or other unanticipated technological advancement that diminishes the threat of the pandemic. See Malam, 2020 WL 3512850, at *10.
129. As pretrial detainees, Plaintiffs are protected by the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979).
130. Under the Due Process Clause of the Fourteenth Amendment, persons in pretrial custody cannot be punished as part of their detention. See id. (holding that “under the Due Process Clause, a detained person may not be punished prior to an adjudication of guilt in accordance with due process of law.”).
131. “In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due
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process of law . . . the proper inquiry is whether those conditions amount to punishment of the detainee.” Id. (emphasis added).
132. 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. at 539.
133. For a claim of unconstitutional punishment, “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate [that is, non-punitive] governmental objective or that it is excessive in relation to that purpose.” Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015).
134. Defendants have only two legitimate interests in Plaintiffs’ pretrial detention: to prevent a credible risk of flight and to prevent a credible, serious risk to public safety. See Stack v. Boyle, 342 U.S. 1, 8 (1951); United States v. Salerno, 481 U.S. 739, 745 (1987).
135. Here, the Court must determine whether Plaintiff’s continued detention is punitive because the conditions of their confinement are unconstitutionally unsafe. The Sixth Circuit has applied Bell to conditions of confinement claims. See Gay Inmates of Shelby Cty. Jail v. Barksdale, 819 F.2d 289, 1987 WL 37565, at *2 (6th Cir. June 1, 1987) (holding that ““[t]he conditions of confinement of convicted inmates are evaluated under an eighth amendment standard, but a somewhat different standard applies to pretrial detainees because, ‘under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt.’”)
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136. The test articulated in Bell is applicable here. See Malam, 2020 WL
3512850, at *18; see also Kingsley, 576 U.S. at 398 (finding that “[t]he Bell Court applied
[an] objective standard to evaluate a variety of . . . conditions, including . . . double bunking.
In doing so, it did not consider the . . . officials’ subjective beliefs about the policy.”).263
137. Plaintiffs have rebutted any presumption that the conditions of their
continued detention provide reasonable care or safety during the COVID-19 pandemic.
Malam, 2020 WL 3512850, at *18 (finding that “that Plaintiffs each have a heightened risk
of a dire outcome from COVID-19; Plaintiffs face a significant risk of COVID-19 infection
while at the Calhoun County Correctional Facility; and Defendants’ precautionary
measures, even where followed, do not sufficiently mitigate that risk.”).
138. Plaintiffs continued detention at the Jail during the COVID-19 pandemic is
not rationally related to either interest and it is excessive in relation to both because
Plaintiffs are not reasonably safe despite being entitled to “reasonable safety.” Youngberg,
457 U.S. at 324.264
263 It would be bizarre if the liability standard for pretrial detention was lower for excessive-force allegations than for unconstitutional conditions allegations. A higher liability standard is appropriate in force cases than in other conditions cases because of courts’ “appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second change,” Whitley v. Albers, 475 U.S. 312, 320 (1986), and because of prison officials’ “competing obligations” to “take into account the very real threats . . . unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used.” Id. If excessive force is judged using an objective standard, at least as favorable approach to conditions cases follows a fortiori. Such an approach is consistent with longstanding law respecting other forms of detention. See, e.g. Youngberg v. Romeo, 457 U.S. 307, 321–322 (1982) (finding that individuals involuntarily confined because of their intellectual disabilities “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”).
264 Further, both pretrial violence and pretrial flight are rare events. Many systems measure these risks using proxy variables that are more common: re-arrest (which
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139. Because Plaintiffs are not reasonably safe at the Jail during the COVID-19
pandemic their continued detention is punitive. See Malam, 2020 WL 3512850, at *18
(holding that “the finding the Plaintiffs’ current detention constitutes punishment flows
logically from the Court’s finding that Plaintiffs face irreparable injury absent an
injunction.”).
140. There are not any conditions of confinement such that Plaintiffs’ continued
detention would not be excessive in relation to Defendants’ interest. Id. “Accordingly,
any conditions of confinement at the [Jail], as it exists today, are likely to be
unconstitutionally punitive.” Id.
Unconstitutional Confinement in Violation of the Fourteenth Amendment to the U.S. Constitution. 141. The Fourteenth Amendment also protects pretrial detainees from
unconstitutional conditions of confinement. That protection is at least as expansive as the
protection from cruel and unusual punishment accorded to post-conviction prisoners under
the Eighth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)
does not necessarily indicate that a person represents a danger to the community) and failures to appear (which occur for innocuous reasons short of flight). See, e.g., McNeil v. Comm. Prob. Services, LLC, 2019 WL 633012 at *14–15 (M.D. Tenn. Feb. 14, 2019), aff'd, 945 F.3d 991 (6th Cir. 2019) (evaluating and adopting empirical evidence that in the District of Columbia, where 93 percent of all arrestees are released pretrial without money bond conditions, 98 percent are not arrested for crimes of violence during the pendency of their case); Schulz v. State, 330 F.Supp.3d 1344, 1361–63 (N.D. Ala. 2018) (noting “considerable evidence” that court date reminders are effective to reduce failure to appear rates, and that pretrial recidivism and missed court dates can both be managed effectively by unsecured bonds); see also Shima Baradaran Baughman, Predicting Violence, 90 Tex. L. R. 497, 527 (2012) (evaluating large dataset and noting “even among felony defendants, there is a relatively low level of re-arrest pretrial” with only 1.9 percent of all felony defendants arrested for a violent felony during the pretrial period).
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(holding that the Due Process Clause protects pretrial detained persons to at least the same extent as the Eighth Amendment protects convicted persons).
142. Unconstitutional confinement claims are assessed under a “deliberate indifference” framework imported from the analysis regarding cruel and unusual punishment under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 828 (1994) (holding that a “prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”).
143. The Eighth Amendment’s deliberate indifference analysis, which only applies to post-conviction prisoners and is inapplicable here, involves an objective and subjective prong. See Wilson v. Williams, 961 F.3d 829, 840 (6th Cir. 2020). “To satisfy the objective prong, an individual must show ‘that he is incarcerated under conditions posing a substantial risk of serious harm.’ Under the subjective prong, an official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety.’” Id. at 840 (omitting citations) (quoting Farmer, 511 U.S. at 834, 837).
144. It remains an open question in the Sixth Circuit whether the culpable-stateof-mind rules applied to post-conviction prisoners apply to pretrial detainees. See Cameron v. Bouchard, No. 20-1469, 2020 WL 3867393, at *5 (6th Cir. July 9, 2020) (finding that “[s]ince Kingsley, the circuits have split on whether deliberate indifference claims arising under the Fourteenth Amendment are still governed by Farmer (requiring an objective inquiry for an officer’s state of mind) or instead are governed by Kingsley (requiring an objective inquiry for an officer’s state of mind). We have not ruled on the issue. We need not resolve the issue today”) (omitting citations).
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145. Although it remains an open question in the Sixth Circuit, Kingsley “calls into serious doubt whether [Plaintiffs] need even show that show that the individual defendant-officials were subjectively aware of [the risk to their safety].” Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018).
146. Here, because there is no requirement that a pretrial detainee demonstrate the wanton infliction of pain to establish a constitutional violation, Plaintiffs “can prevail by providing only objective evidence[.]” Kingsley, 576 U.S. at 398.
147. Even if Plaintiffs are required to prove the subjective prong of the deliberate indifference analysis, despite the fact that they are pretrial detainees and may not be punished at all under the Fourteenth Amendment, the evidence shows that Defendants knew that Plaintiffs “face a substantial risk of serious harm,” but Defendants “disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847.
148. The facts before the Sixth Circuit in Cameron and Wilson were different. In Cameron, the Sixth Circuit found that the Oakland County Jail in Michigan took numerous steps to prevent the spread of COVID-19, including “quarantining any inmate experiencing symptoms of COVID-19 and any inmate who had contact with a symptomatic inmate; checking inmates who were in symptomatic quarantine three times a day with a full set of vitals including a temperature check; placing inmates that tested positive in the positive COVID-19 cells . . . using prepackaged meals for food service . . . promoting social distancing by reducing cell numbers depending upon inmate classification; and providing access to COVID-19 testing to the entire inmate population.” Cameron, 2020 WL 3867393, at *5.
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149. In Wilson, the court found that the federal Bureau of Prisons had implemented a six-phase plan to mitigate the risk of COVID-19 spreading at the Elkton Prison and that it had quarantined, isolated, and tested effectively and in accordance with CDC guidance. Wilson, 961 F.3d at 841. Importantly, however, in Wilson the district court did not hold an evidentiary hearing prior to granting a preliminary injunction and it did not attempt to resolve factual discrepancies in the declarations provided by the parties. Id. at 843 n.4.
150. The deficiencies at the Jail are more serious, more glaring, and more dangerous, and they establish that Defendants “acted with reckless disregard to the significant risk of serious harm” to Plaintiffs. See Pimentel-Estrada v. Barr, No. C20-495, 2020 WL 209430, at *16 (W.D. Wash. Apr. 28, 2020) (finding ICE acted with reckless disregard to the significant risk of serious harm to detainee from COVID-19).
Discrimination on the basis of disability in violation of Title II of the ADA, 42 U.S.C. § 12131, and Section 504 of the Rehabilitation Act. 29 U.S.C. § 794. 151. Independent of the merits of their constitutional claims, Plaintiffs are likely to obtain the relief they seek on the merits of their statutory claims. Defendants’ violations of the ADA are clearly cognizable under 28 U.S.C. § 2241, which extends the writ of habeas corpus to an individual “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241 (emphasis added); see also Bogovich v. Sandoval, 189 F.3d 999, 1004 (9th Cir. 1999) (holding that, “[i]f an ADA claim challenges the validity or duration of confinement, the prisoner’s sole federal remedy is the writ of habeas corpus.”). 152. To establish a case of discrimination under Title II of the ADA or the Rehabilitation Act, a plaintiff must show “that he (1) is disabled under the statutes, (2) is
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‘otherwise qualified’ for participation in [a state or local government] program, and (3) ‘is being excluded from participation in, denied the benefits of, or subjected to discrimination’ because of his disability or handicap, and (4) (for the Rehabilitation Act) that the program receives federal financial assistance.” Hollis v. Howard, No. 16-5115, 2016 WL 9804159, at *2 (6th Cir. Dec. 21, 2016) (quoting Gohl v. Livonia Pub. Sch. Dist., 836 F.3d 672, 682 (6th Cir. 2016)).
153. Plaintiffs and members of the Subclass are individuals with disabilities for purposes of the ADA and the Rehabilitation Act. See 42 U.S.C. § 12102. They are “qualified” for the programs, services, and activities that Plaintiffs challenge. 42 U.S.C. § 12131(2).
154. The Jail is a “public entity,” and it is covered by Title II of the ADA. See 42 U.S.C. §§ 12131(1), 12132. The Jail receives federal financial assistance, and it is covered by the Rehabilitation Act. See 29 U.S.C. § 794(a).
155. Title II of the ADA requires that public entities refrain from discriminating against qualified individuals on the basis of disability. See 42 U.S.C. § 12132.
156. The regulations implementing Title II of the ADA and implementing the Rehabilitation Act require that public entities avoid policies, practices, criteria, or methods of administration that have the effect of excluding or discriminating against persons with disabilities in the entity’s programs, services, or activities. See 28 C.F.R. § 35.130(a), (b)(3), (b)(8). The regulations implementing Section 504 of the Rehabilitation Act impose the same requirements. See 34 C.F.R. § 104.4(b); 28 C.F.R. § 41.51(b)(3)(i).
157. Further, a public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on
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the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
158. “Title II imposes affirmative obligations on public entities and does not merely require them to refrain from intentionally discriminating against the disabled.” Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 910 (6th Cir. 2004); 28 C.F.R. §§ 35-102(a), 35.130(a)-(b); Pierce v. D.C., 128 F. Supp. 3d 250, 269 (D.D.C. 2015) (holding that “nothing in the disability discrimination statutes even remotely suggests that covered entities have the option of being passive in their approach to disabled individuals as far as the provision of accommodations is concerned.”).
159. “[A]dequate social distancing necessary to combat COVID-19 is a service provided to incarcerated individuals” within the meaning of the ADA and the Rehabilitation Act. See Denbow v. Maine Dept. of Corrections, No. 1:20-cv-00175, 2020 WL 3052220, at *22 (D. Me., June 8, 2020).
160. If, by reason of a disability, a medically vulnerable detainee needs more social distancing than others, it is uncontested that providing some measure of such social distance would be a reasonable accommodation within the meaning of the ADA. See id.
161. Other programs, services, and activities to which disabled detainees are entitled to equal access and equal benefit within the Jail include: meals, pill call, medical and mental health care, adjudication of their criminal cases, and safe housing. See 28 C.F.R. App. B, Part 35, “[T]itle II applies to anything a public entity does;” Fraihat v. U.S. Immigration and Customs Enf’t, No. EDCV 19-1546 JGB, 2020 WL 1932570, at *26 (C.D.
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Cal. Apr. 20, 2020) (in ICE detention, “[t]he programmatic ‘benefit’ in this context . . . is best understood as participation in the removal process.”)
162. The Jail’s passive and ill-defined approach to providing reasonable accommodations or modifications to disabled detainees fails to meet its affirmative obligations to provide equal access and equal benefits to the Jail’s services, programs, and activities. Jail officials offered contradictory statements about how—and whether—people with disabilities are being accommodated in the Jail. Chief Fields has never seen an accommodation request form from a detainee, believes that Wellpath is responding to accommodations, and believes that he has “delegated” ADA compliance to Wellpath.265 Wellpath’s medical director testified that she is not aware that Wellpath—or anyone else— is responsible for ADA compliance.266
163. In any event, the Jail cannot avoid its obligations under the ADA or Section 504 of the Rehabilitation Act “through contractual, licensing, or other arrangements” with third parties. 28 C.F.R. § 35.130(b)(1).
164. The Jail has failed to meet its affirmative obligations to: provide reasonable modifications; afford disabled detainees equal benefit to its services, programs, and activities; and, avoid policies, practices, criteria or methods of administration that have the effect of excluding or discriminating against people with disabilities.
165. As a result of these failures, continued detention of Subclass members during the COVID-19 pandemic violates their ADA and Rehabilitation Act rights.
265 Hr’g Tr. 85:20–24, 88:24–89:1; 87:9–19 (July 13, 2020). 266 D. Randolph Dep. Tr. 124:13–15.
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166. Because “Plaintiffs have demonstrated that the Jail has failed to make reasonable accommodations to allow members of the Disabled Class to participate safely in the programs of the Jail, Plaintiffs have demonstrated a likelihood of success on their disability claim.” Ahlman v. Barnes, No. SACV 20-835, 2020 WL 2754938, at *12 (C.D. Cal. May 26, 2020).
C. The Balance of the Equities Favors Plaintiffs. 167. When the government opposes the issuance of preliminary injunctive relief, as Defendants do here, the final two factors—the balance of equities and the public interest—merge, because “the government’s interest is the public interest.” Pursuing America’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). 168. “The public has an interest in preserving Plaintiffs’ constitutional rights and in protecting public health.” Malam, 2020 WL 3512850, at *19 (citing G&V Lounge Inc. v. Mich. Liquor Control Comm., 23 F.3d 1071, 1079 (6th Cir. 1994)). 169. The Court must balance these interests against the public’s interest in preventing a credible risk of flight and a credible, serious risk to public safety, neither of which require continued detention. See Stack v. Boyle, 342 U.S. 1, 8 (1951); United States v. Salerno, 481 U.S. 739, 745 (1987). 170. The balance of equities weighs in Plaintiffs favor. Plaintiffs have tailored the relief sought in their motion to comport with the various factors that must be accounted for to promote the public interest. The relief Plaintiffs’ seek conditions their release on (a) their ability to quarantine safely,267 (b) the absence of clear and convincing proof that they
267 Mr. Busby could safely quarantine at his brother’s house in Memphis. He would have access to his own room. See First Spickler Decl., ECF No. 2-7, ¶ 8. Mr. Nelson 52

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present a risk of flight or danger that both (i) outweighs the risk of severe illness or death presented by their confinement in the Jail and (ii) cannot be reasonably managed by less restrictive conditions of pretrial release, such that continued detention of the individual is reasonable under those circumstances; and (c) the absence of a specific plan by Defendants to mitigate the risk Plaintiffs face from continued detention subject to confirmation from an Independent Medical Professional that, in light of that plan, Defendants can assure Plaintiffs’ reasonable safety.
XI. The Remedy Plaintiffs Seek is Within the Court’s Habeas Jurisdiction. 171. The only adequate remedy at this time is to order Plaintiffs released from detention on appropriate conditions. See Pimentel-Estrada, 2020 WL 2092430, at *19 (finding that, “although there may be, as a theoretical matter, conditions under which Petitioner could be detained that would not violate his constitutional rights, the record in this case provides no reason for the Court to believe Respondents could realistically create such conditions on an appropriate timeline.”) 172. It is well within the Court’s habeas jurisdiction to grant release, broadly defined, subject to conditions. Indeed, it is the typical relief granted in federal habeas corpus. See Jennings v. Rodriguez, 138 S. Ct. 830, 858 (2018) (Thomas, J., concurring) (A writ of habeas corpus may be “styled in the form of a conditional or unconditional release order.”). See also Herrera v. Collins, 506 U.S. 390, 403 (1993) (“The typical relief granted in federal habeas corpus is a conditional order of release . . . .”); Chin Yow v. United
could safely quarantine with Venessa Retic, his fiancée. He would have access to his own room. See Dozier Decl., ECF No. 51, ¶ 5. Mr. Leaks could safely quarantine at the house belonging to his mother and sister. He would have his own room. See Third Spickler Decl., ECF No. 52, ¶ 5.
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States, 208 U.S. 8, 13 (1908) (awarding habeas relief by ordering the release of non-citizen

if certain conditions were not satisfied).

CONCLUSION

The Court should grant Plaintiffs’ Motion.

Dated: July 15, 2020

Respectfully submitted,

/s/ Andrea Woods

Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org

Andrea Woods Amreeta S. Mathai Jeffery Robinson American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org amathai@aclu.org
Zoe Brennan-Krohn American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org

Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Maria Morris American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Jonathan M. Silberstein-Loeb Meredith L. Borner Edward C. Robinson Jr. David Kimball-Stanley* Adrienne Lee* 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com jsilberstein-loeb@paulweiss.com dkimball-stanley@paulweiss.com alee@paulweiss.com
Attorneys for Plaintiffs * Application for admission pro hac vice forthcoming
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CERTIFICATE OF SERVICE I, Andrea Woods, certify that on July 15, 2020, I caused a true and correct copy of the foregoing document to be filed and served electronically via the Court’s ECF system. Notice of this filing will be sent by e-mail to all parties of record by operation of the Court’s ECF system.
Respectfully submitted,
/s/ Andrea Woods

 
 Case 2:20-cv-02359-SHL-atc Document 162 Filed 01/28/21 Page 1 of 10 PageID 3232

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FAVIAN BUSBY and MICHAEL

)

EDGINGTON, on their own behalf and on )

behalf of those similarly situated,

)

Plaintiffs,

)

)

v.

)

)

FLOYD BONNER, JR., in his official

)

capacity, and SHELBY COUNTY

)

SHERIFF’S OFFICE,

)

Defendants.

)

No. 2:20-cv-2359-SHL-atc

ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PERMISSION TO POST CLASS NOTICE AS MODIFIED, AND SCHEDULING A FINAL APPROVAL HEARING

Before the Court is the Parties’ Joint Motion for Preliminary Approval of Class Action Settlement, (ECF No. 161), filed January 26, 2021. Plaintiffs seek entry of an order (a) granting preliminary approval of the settlement embodied in the Proposed Consent Decree and the Settlement Agreement; (b) approving the forms of notice; (c) establishing a procedure for providing notice of the Settlement and Proposed Consent Decree to members of the Class and Subclass and affording them an opportunity to object; and (d) setting a date and time for a fairness hearing approximately 5 weeks from the date the Court grants this Motion.
For the following reasons, the Motion is GRANTED. However, the Parties are instructed to note the Court’s addition to the documents to be made available to Class members, if requested.
I. Procedural History Plaintiffs brought this case as a class action, seeking declarative and injunctive relief

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and/or a writ of habeas corpus under 48 U.S.C. § 2241 as well Title II of the Americans with
Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Rehab Act”). The case
arises from concerns about Plaintiffs’ safety while detained in the Shelby County Jail (“the Jail”)
during the current pandemic caused by COVID-19. (ECF Nos. 1, 50.) Defendants filed a
motion to dismiss the Complaint in its entirety. (ECF No. 25.) On June 10, 2020, the Court
denied Defendants’ motion and certified a Class and Subclass of medically vulnerable and
disabled individuals detained pretrial at the Jail. (ECF No. 38.) The Court defined the Class and
Subclass as follows:
The Class consists of all:
1. People 65 years and older; 2. People with chronic lung disease or moderate to severe asthma (including chronic
obstructive pulmonary disease (COPD) (including emphysema and chronic bronchitis), idiopathic pulmonary fibrosis and cystic fibrosis); 3. People who have serious heart conditions (including heart failure, coronary artery disease, congenital heart disease, cardiomyopathies and pulmonary hypertension); 4. People who are immunocompromised (including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications); 5. People with severe obesity (body mass index [BMI] of 40 or higher); 6. People with diabetes; 7. People with chronic kidney disease undergoing dialysis; 8. People with chronic liver disease, including cirrhosis; and 9. People with hemoglobin disorders, including sickle cell disease and thalassemia.
The subclass consists of:
All persons currently or in the future held at the Jail in pretrial custody during the COVID19 pandemic who are at increased risk of COVID-19 complications or death because of disabilities as defined in the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The Subclass includes everyone in the Class except those people who are vulnerable solely due to age or BMI. People with all other conditions listed in paragraph (1) above are people with disabilities as defined under federal law.
(Id. at PageID 690-91.)
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Plaintiffs filed a Motion for Preliminary Injunction,1 in which they sought urgent habeas and injunctive relief. Owing to a pronounced gap in the Parties’ descriptions of confinement conditions at the Jail, the Court appointed expert Mike Brady as an Independent Inspector. After Mr. Brady submitted a report to the Court, about which he testified at a hearing on July 1, 2020, and the Parties engaged in expedited discovery, the Court held an evidentiary hearing on July 10 and 13, where both Parties presented proof. (ECF No. 124 at PageID 2804.) The Court found that, while Plaintiffs demonstrated many failures related to the way in which they were being confined, these failures were capable of being remedied (indeed, some already had been) and the likelihood of success on the merits was not strong. Therefore, the Motion was denied. (See id.)
The Court then conducted a Scheduling Conference to discuss the next stages of the litigation. The Parties began their pursuit of more discovery, and Plaintiffs filed a Motion to Amend the Amended Complaint, (ECF No. 135), and Motion to Modify Class Certification Order, (ECF No. 136).2
On December 28, 2020, Plaintiffs filed a Joint Notice of Settlement. (ECF No. 160.) Following execution of the Release and Settlement Agreement (“the Agreement”), the Parties filed the instant Motion for Preliminary Approval of Class Settlement and Permission to Post Class Notice. (ECF No. 161.) The Agreement integrates the Proposed Consent Decree (“the Decree”), which details the Parties’ agreements on specific policies and protocols concerning the following: (1) independent inspections and reporting; (2) ventilation; (3) testing, isolation, and quarantine for COVID-19; (4) hygiene and personal protective equipment; (5) social distancing;
1 As explained in its August 7, 2020, Order Denying Plaintiffs’ Motion for Preliminary Injunction, the Court construed Plaintiffs’ emergency motion as one for preliminary injunction, rather than for temporary restraining order. (ECF No. 124 at PageID 2801.) 2 Both Motions are DENIED WITHOUT PREJUDICE, given this proposed resolution.
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and (6) enforcement and modification. (See ECF No. 161-2.) II. Analysis A. Preliminary Settlement Approval The Parties seek preliminary approval of the Agreement under Federal Rule of Civil
Procedure 23. Rule 23(e)(1)(B)(i) directs a court to determine, at the preliminary approval stage, whether it “will likely be able to ... approve the proposal under Rule 23(e)(2).” Under Rule 23(e)(2), a court must review whether the proposed settlement is “fair, reasonable, and adequate after considering” the following four factors:
(A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm's length; (C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney's fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3); and (D) the proposal treats class members equitably relative to each other. Fed. R. Civ. P. 23(e)(2)(A)-(D); Fitzgerald v. P.L. Mktg., Inc., No. 217CV02251SHMCGC, 2020 WL 7764969, at *11 (W.D. Tenn. Feb. 13, 2020) (explaining that, effective December 1, 2018, Rule 23(e) sets out “a new rubric” of four factors to consider when determining whether to grant preliminary approval of a class action settlement) (quoting Day v. AMC Corp., No. 5:17cv-183, 2019 WL 3977253, at *3 (E.D. Ky. July 26, 2019); Fitzgerald v. P.L. Mktg., Inc., No. 217CV02251SHMCGC, 2020 WL 3621250, at *4 n.1 (W.D. Tenn. July 2, 2020). The Court considers each factor below.
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1. Adequate Representation and Arm’s Length Negotiation
The first two factors under Rule 23(e)(2)—adequate representation and whether the
proposal was negotiated at arm's length—“identify matters that might be described as
‘procedural’ concerns.” Fed. R. Civ. P. 23(e)(2), 2018 Advisory Committee Notes. Addressing
those factors, the Advisory Committee offered the following guidance:
[T]he focus at this point is on the actual performance of counsel acting on behalf of the class.
The information submitted under Rule 23(e)(1) may provide a useful starting point in assessing these topics. For example, the nature and amount of discovery in this or other cases, or the actual outcomes of other cases, may indicate whether counsel negotiating on behalf of the class had an adequate information base. The pendency of other litigation about the same general subject on behalf of class members may also be pertinent. The conduct of the negotiations may be important as well. For example, the involvement of a neutral or court-affiliated mediator or facilitator in those negotiations may bear on whether they were conducted in a manner that would protect and further the class interests. Particular attention might focus on the treatment of any award of attorney's fees, with respect to both the manner of negotiating the fee award and its terms.
Id.
Here, Class Counsel has adequately represented the Classes. The Parties engaged in
expedited initial discovery, and the Court held numerous hearings involving testimony from the
Independent Inspector and six witnesses following that initial discovery. (ECF No. 161 at
PageID 3189.) Following the Court’s ruling on the preliminary injunction, Plaintiffs sought to
add another claim, and the Parties were prepared to continue their discovery efforts if settlement
discussions were not fruitful. (See ECF Nos. 147-155.)
In addition, the Proposed Decree imposes multiple protective measures for Plaintiffs
moving forward, which were the focus of this litigation from the beginning. Specifically:
First, it requires the Jail to provide regular reporting regarding the population of the Jail and the impact of COVID-19 on the Jail’s population. See Ex. B at ¶¶ 4– 5. Second, the Decree calls for unannounced inspections at regular intervals by
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the Court-appointed Independent Inspector. The Independent Inspector is empowered to conduct inspections commensurate and in accordance with the Court’s June 18, 2020 Order, ECF No. 56. In addition, the Independent Inspector will monitor the continuing work of the Jail’s Expeditor to evaluate Class and Subclass members for consideration of release on less restrictive conditions other than detention. See id. at ¶ 8. Pursuant to the terms of the Decree, Defendants are obligated to use their best efforts to implement the recommendations of the Independent Inspector or to provide a written explanation for why, despite using their best efforts, Defendants are unable to do so. The Independent Inspector will opine in subsequent visits whether Defendants have undertaken their best efforts.
In addition, the Decree provides machinery to ensure that the ventilation and air flow in the Jail is safe, see id. at ¶ 13, provisions to ensure that there is adequate testing for COVID-19 in the Jail, reporting of the results of that testing, and appropriate quarantining procedures, see id. at ¶¶ 14–18, and it ensures that Class and Subclass members will continue to receive adequate hygiene and personal protective equipment. See id. at ¶ 19. Further, the Decree ensures that the Independent Inspector will pay particular attention to the Jail’s efforts to maximize social distancing. See id. at ¶ 20.
The parties have also agreed that they will endeavor to resolve any dispute regarding the Decree promptly and will only have recourse to the Court in the event of an emergency or if they cannot reach a resolution themselves. Independently, the underlying case will be stayed upon entry of the Decree unless and until Plaintiffs seek enforcement of the Decree. This mechanism provides further comfort to Plaintiffs that Defendants will endeavor in good faith to uphold their obligations as set forth in the Decree and that, in the event of a dispute, Plaintiffs can quickly have recourse to the Court, which is particularly important in light of the urgency required to confront the pandemic.
(Id. at PageID 3189-91.) This relief addresses most, if not all, of Plaintiffs’ alleged deficiencies
in their confinement in the Jail, given the pandemic, and the Court is not aware of any greater
successes in similar litigation.
The Court additionally finds that the Agreement was negotiated at arm’s length. It was
reached after adversarial negotiations that lasted approximately eight (8) months. (Id. at PageID
3187.) It is the product of three mediation sessions with a third-party mediator. (Id.) In sum,
the Parties’ Agreement is the product of a procedurally fair process. See Fitzgerald v. P.L.
Mktg., Inc., No. 217CV02251SHMCGC, 2020 WL 7764969, at *11 (W.D. Tenn. Feb. 13, 2020)
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(granting preliminary approval of class action settlement where adversarial negotiations lasted more than a year and was the product of two mediation sessions with a third-party mediator).
2. Adequate Relief and Equitable Treatment Under Rule 23(e)(2)(C), a court must consider whether “the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney's fees, including timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3).” Here, the COVID-19 pandemic has created an unprecedented crisis in need of urgent resolution—specifically, Plaintiffs’ safety while in pre-trial detention. The Settlement resolves pressing concerns regarding the adequacy of safety measures at the Jail, and also provides mechanisms to inspect those measures on an ongoing basis and report any issues. The Settlement avoids the costs of continued discovery, which would involve complex scientific questions regarding the spread of COVID-19, not to mention the incalculable costs and risks to Plaintiffs of continuing litigation without provisional relief. Moreover, Defendants’ agreement to pay Plaintiffs’ counsel for their costs incurred with this case is reasonable and does not impact the Class’ relief, while each side has agreed to cover its own attorney fees, again without impact on the Class itself. Lastly, the Settlement treats all relevant Class members equally. Thus, Rule 23(e) is satisfied. B. Approval of Notice and Direction to Effectuate Notice as Modified Rule 23(e) mandates that the court must “direct notice in a reasonable manner to all class members who would be bound” by a proposed class settlement. Fed. R. Civ. P. 23(e)(1)(B).
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“The notice should be ‘reasonably calculated, under all circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their objections.’”
Meyers v. Dtna Trucks N. Am., LLC, No. 14-2361, 2014 WL 12531121, at *9 (W.D. Tenn. Oct.
8, 2014) (quoting UAW v. General Motors Corp., 497 F.3d 615, 629-30 (6th Cir. 2007)).
Here, the Parties propose two forms of Notice, a simpler version (the “Plain Text
Notice”) and a more complex version (the “Detailed Notice”), attached as Exhibits D and E to
the Unopposed Motion for Preliminary Approval. The Plain Text Notice is written to be
understood by individuals with a fifth grade or lower literacy level. The Detailed Notice is more
complex and is intended to be understood by individuals who read at a higher literacy level.
Regarding the posting and availability of the Plain Text Notice, the Parties describe the
following program:
The Plain Text Notice will be posted in both English and Spanish to ensure the Class members can understand the contents. The Plain Text Notice will be posted in each of the housing units of the Jail.
Next to each posting, there will be a message indicating that the pod counselor has copies of the Detailed Notice, the Consent Decree, and the Court Order defining the Class and Subclass for detainees to review. Each pod counselor will retain copies of the English and Spanish versions of the Notices, the Consent Decree, and the Court Order defining the Class and Subclass. Each pod counselor will maintain these copies and will provide detainees with access to review these copies upon request. . . .
The Notices explain in simple terms that Class and Subclass members can object to the terms of the Consent Decree by writing out their objections and mailing them to the Court. The Notices also provide a toll-free phone number that Class and Subclass members can call from the Jail to discuss the Settlement with Plaintiffs’ counsel.
In the event the Court enters the Consent Decree, the Jail will modify these procedures. The Jail will post a message in the communal areas that indicates the Consent Decree is available for review upon request from a pod counselor. The Jail will maintain a copy of the Consent Decree with each pod counselor until the Consent Decree is no longer in place.
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(ECF No. 161 at PageID 3195-96.) The Plain Text Notice, which will be posted in each housing unit in both English and
Spanish, provides detailed information about the class definitions, what the Agreement says and requires, how agreement was reached and likely next steps, and how to ask questions and/or object. The Parties have also agreed that the other pertinent documents, the Detailed Notice, the Proposed Consent Decree, and the Court Order defining the Classes, will be available for detainees to review. The Court further DIRECTS that a copy of this Order be made available to detainees. In sum, the Notices adequately apprise Class members of the Settlement Agreement and afford them an opportunity to object. Posting the Notices in each housing unit is an adequate means of providing notice.
C. Final Approval Hearing The Court will hold the Final Approval Hearing on March 5, 2021, at 9:30 AM, via Microsoft Teams (unless the Parties request an in-person hearing), to assist the Court in determining whether to grant Final Approval of the Settlement and consider any objections from the Classes. At the Hearing, the Court will discuss potential additional information on housing to be provided to the Independent Inspector, such as total capacity by pod, to allow proper evaluation of the population statistics, and any agreement between the Parties as to the breadth of future inspections, as well as any other issues raised regarding the Proposed Consent Decree.
CONCLUSION For the foregoing reasons, the Motion is GRANTED. The Court ORDERS that: 1. The Settlement is conditionally APPROVED as fair, reasonable, and adequate to the Class members, subject to further consideration at the Final Approval Hearing. 2. The Parties are DIRECTED to provide notice of the proposed Settlement
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Case 2:20-cv-02359-SHL-atc Document 162 Filed 01/28/21 Page 10 of 10 PageID 3241 as provided in this Order and the Settlement Agreement. 3. Any person in the Class or Subclass may object to the Settlement. Any such objections to the Settlement must be received by the Clerk of the Court by no later than March 2, 2021, at the address printed in the Notices. 4. The Parties are DIRECTED to modify the Notices to reflect the appropriate dates and times of the Final Approval Hearing and the deadline for objections. 5. The Parties are DIRECTED to make a copy of this Order available to detainees. IT IS SO ORDERED, this 28th day of January, 2021. s/ Sheryl H. Lipman SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE
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 Case 2:20-cv-02359-SHL-atc Document 161 Filed 01/22/21 Page 1 of 23 PageID 3178

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

Favian Busby, Terric Edwards, Russell Leaks, Saul Molina Martinez, Joseph Nelson, and Mark Phillips, on their own behalf and on behalf of those similarly situated;
PetitionersPlaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office;
RespondentsDefendants.

Case No. 2:20-cv-2359-SHL

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PERMISSION TO POST CLASS NOTICE
Pursuant to Fed. R. Civ. P. 23(e), Plaintiffs Favian Busby, Terric Edwards, Russell Leaks, Saul Molina Martinez, Joseph Nelson, and Mark Phillips (collectively “Named Plaintiffs”), through counsel and on behalf of similarly situated individuals (“Plaintiffs”), and Defendants Floyd Bonner, Jr. and the Shelby County Sheriff’s Office (collectively “Defendants”), through counsel, move for preliminary approval of a class action settlement.

Case 2:20-cv-02359-SHL-atc Document 161 Filed 01/22/21 Page 2 of 23 PageID 3179
The Parties respectfully move for entry of the Preliminary Approval Order (attached to the Memorandum of Law as Exhibit A): (a) granting preliminary approval of the settlement embodied in the proposed Consent Decree attached as Exhibit B and the proposed Settlement Agreement attached as Exhibit C; (b) approving the forms of notice attached as Exhibits D and E; (c) establishing a procedure for providing notice of the settlement and Consent Decree to members of the Class and Subclass and affording them an opportunity to object; and (d) setting a date and time for a fairness hearing approximately 5 weeks from the date the Court grants this Motion.
The grounds for this motion are set forth in the accompanying Memorandum of Law and the Exhibits thereto.
Respectfully submitted, PENTECOST, GLENN & MAULDIN, PLLC By: /s/ Nathan D. Tilly James I. Pentecost (#11640) Nathan D. Tilly (#31318) J. Austin Stokes (#31308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995 AND Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100
Attorneys for Respondents-Defendants
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AMERICAN CIVIL LIBERTIES UNION By: /s/ Andrea Woods_____________ Andrea Woods 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org

Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-877 smulroy@memphis.edu

Amreeta S. Mathai Jeffery P. Robinson American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 amathai@aclu.org jrobinson@aclu.org
Zoe Brennan-Krohn American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Meredith L. Borner Jonathan M. Silberstein-Loeb Edward C. Robinson, Jr. 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com mborner@paulweiss.com jsilberstein-loeb@paulweiss.com erobinson@paulweiss.com * = pro hac vice application forthcoming Attorneys for Petitioners-Plaintiffs
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

Favian Busby, Terric Edwards, Russell Leaks, Saul Molina Martinez, Joseph Nelson, and Mark Phillips, on their own behalf and on behalf of those similarly situated;
PetitionersPlaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office;
RespondentsDefendants.

Case No. 2:20-cv-2359-SHL

MEMORANDUM OF LAW IN SUPPORT OF THE PARTIES’ JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PERMISSION
TO POST CLASS NOTICE

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TABLE OF CONTENTS ARGUMENT ....................................................................................................................... 2 I. Preliminary Approval of the Parties’ Settlement.....................................................2
A. There is No Risk of Fraud or Collusion.......................................................3 B. The Complexity, Expense, and Likely Duration of the Litigation
Favor Settlement..........................................................................................4 C. The Parties Have Engaged in Sufficient Discovery for Plaintiffs
to Gauge the Adequacy of Settlement .........................................................5 D. Likelihood of Success on the Merits ...........................................................7 E. Class Counsel and Class Representatives Agree that the
Settlement Is Favorable ...............................................................................8 F. Reaction of Absent Class and Subclass Members.......................................9 G. The Settlement Serves the Public Interest ...................................................9 II. Reasonable Notice to the Class Requires Posting Notices In the Jail .....................9 CONCLUSION..................................................................................................................12
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TABLE OF AUTHORITIES Page(s)
Cases Does 1-2 v. Déjà Vu Services, Inc.,
925 F.3d 886 (6th Cir. 2019) .........................................................................................2 Fidel v. Farley,
534 F.3d 508 (6th Cir. 2008) .......................................................................................10 In re Gen. Tire & Rubber Co. Sec. Litig.,
726 F.2d 1075 (6th Cir. 1984) .....................................................................................10 Int’l Union, UAW, et al. v. General Motors Corp.,
497 F.3d 615 (6th Cir. 2007) ...................................................................................7, 10 N.Y. State Teachers’ Ret. Sys. v. Gen. Motors Co.,
315 F.R.D. 226 (E.D. Mich. 2016) ................................................................................5 In re S. Ohio Corr. Facility,
173 F.R.D. 205 (S.D. Ohio April 22, 1997) ................................................................10 Statutes 42 U.S.C. § 1983..................................................................................................................2 48 U.S.C. § 2241..............................................................................................................1, 2 Americans with Disabilities Act Title II......................................................................1, 7, 8 Rehabilitation Act Section 504........................................................................................1, 8 Other Authorities Fed. R. Civ. P. 23(e) ............................................................................................................2 Fed. R. Civ. P. 23(e)(1)......................................................................................................10 Fed. R. Civ. P. 23(e)(2)........................................................................................................3
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INTRODUCTION Plaintiffs brought this case as a class action, alleging that in continuing to detain medically vulnerable and disabled persons during the COVID-19 pandemic, Defendants violated Plaintiffs’ constitutional and statutory rights. Plaintiffs brought claims for declarative and injunctive relief and/or a writ of habeas corpus under 48 U.S.C. § 2241 as well as discrimination on the basis of disability in violation of Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Rehab Act”). Plaintiffs sought, among other things, release from the Jail via a temporary restraining order and/or preliminary injunction. In response, Defendants denied they violated Plaintiffs’ constitutional or statutory rights. Defendants disputed Plaintiffs’ allegations concerning Plaintiffs’ safety in the Shelby County Jail (the “Jail”) and asserted that they implemented numerous practices and procedures that appropriately combated and prevented the spread of COVID-19 in the Jail. By Order dated June 10, 2020, the Court denied Defendants’ motion to dismiss and certified a Class and Subclass of medically vulnerable and disabled individuals detained pretrial at the Jail who are at high risk of serious injury or death from COVID-19. See ECF No. 38. Subsequently, the Court heard proof from the parties as well as an Independent Inspector concerning the Jail’s response to COVID-19. After hearing proof, the Court, in its August 7, 2020 Order, denied the Plaintiffs’ motion for preliminary injunction. See ECF No. 124. While the Court found that the proof showed “failures with how the Jail detains medically vulnerable detainees amid this pandemic,” the Court concluded that “these failures can likely be remedied quickly.” ECF No. 124, Pg.ID 2814–16. As a result, on September 15, 2020, Plaintiffs sought leave to file an amended complaint seeking relief
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under 42 U.S.C. § 1983 in addition to habeas relief under 28 U.S.C. § 2241. See ECF No. 137. That motion is sub judice.
At different times during these proceedings the parties have endeavored to settle their dispute. The Court’s August 7 Order added additional impetus to these efforts. On December 16, 18, and 22, 2020, the parties engaged in mediation, which proved successful. The parties now bring this motion seeking preliminary approval of their class action settlement, which if approved would result in the entry of a Consent Decree, in the form attached hereto as Exhibit B (the “Decree”), as well as a Release and Settlement Agreement, in the form attached hereto as Exhibit C (the “Agreement” and together with the Decree, the “Settlement”).
The Decree and Agreement meet the requirements the Court must evaluate in considering whether to grant the motion seeking preliminary approval because there is no risk of fraud or collusion; the complexity, expense, and likely duration of the litigation favor settlement; the parties have engaged in sufficient discovery for Plaintiffs to gauge the adequacy of settlement; the parties are using settlement to resolve a legitimate legal and factual disagreement; the Class counsel and Class representatives agree that the settlement is favorable; Plaintiffs’ counsel is not aware of any objections from absent Class and Subclass members; and the settlement serves the public interest.
ARGUMENT I. Preliminary Approval of the Parties’ Settlement
Fed. R. Civ. P. 23(e) requires the “court’s approval” for any settlement of claims of a certified class. The Court may only approve a class settlement after holding a hearing to determine whether the settlement is “fair, reasonable, and adequate.” Does 1-2 v. Déjà Vu Services, Inc., 925 F.3d 886, 894 (6th Cir. 2019). The Court makes this determination
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after considering whether: (A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate; and (D) the proposal treats class members equitably relative to each other. See Fed. R. Civ. P. 23(e)(2). The key factors for the Court to consider when undertaking this inquiry include: (1) the risk of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent class members; and (7) the public interest. See Does 1-2, 925 F.3d 886 at 894–95 (citing Int’l Union, UAW, et al. v. General Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007) (hereinafter “UAW”)). The settlement proposed by the parties satisfies these criteria.
A. There is No Risk of Fraud or Collusion There has been no suggestion of any conflicts of interest with respect to the
negotiation of the Settlement, and there were none. The proposed Decree and the Agreement before this Court were negotiated at arms-length by attorneys with no conflicts of interest who vigorously advocated for their respective clients. At different times in these proceedings, the parties unsuccessfully attempted to settle their dispute. Those negotiations gained added impetus following the Court’s August 7 Order and were facilitated by mediation held between the parties on December 16, 18, and 22, 2020. Counsel for the parties also continued to meet and confer while mediation was ongoing. The parties exchanged multiple drafts of the proposed Decree and the Agreement and both sides made compromises to reach consensus. The arms-length negotiation was ultimately successful because the parties were able to arrive at a resolution that promotes safety in the
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Jail and protects Class and Subclass members from COVID-19, while also allowing Defendants flexibility to operate the Jail as required by law.
B. The Complexity, Expense, and Likely Duration of the Litigation Favor Settlement Combating the novel coronavirus and the worst pandemic in over a century in a
congregate setting, such as the Jail, has raised complex factual and legal issues that require an urgent resolution that favors settlement. The Settlement resolves these pressing issues quickly and avoids extensive additional discovery which is already underway.
The Settlement resolves concerns regarding the safety of the Plaintiffs and the members of the Class and Subclass and ensures that they will continue to be safe for the duration of the pandemic by providing mechanisms for continued reporting and inspections by the Court-appointed Independent Inspector. Absent a determination by the Court, the Decree will remain in place for the duration of the pandemic and does not terminate until the pandemic is declared over or a vaccine is offered to all detainees housed at the Jail. See Ex. B at ¶¶ 28–29.
The Settlement also avoids extensive discovery, including a forthcoming production from Defendants of electronically stored information (ESI) that will include a large quantity of emails and related documents, and eight depositions, which Plaintiffs have already noticed. In addition, absent approval of the Settlement, the parties will need to continue to conduct ongoing expert discovery regarding scientific questions related to the spread of COVID-19, including via airborne particles through the ventilation and air filtration systems in the Jail.
In addition, the Settlement obviates the need to resolve the appropriate legal standard applicable to Plaintiffs’ claims, which the Court previously declined to reach. See
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ECF No. 124, Pg.ID 2821. If, instead of settling, the parties were obligated to litigate this issue, it would impose further on the Court’s time at considerable expense to the parties. For these reasons, both sides agree that the complexity, expense, and likely duration of this litigation favor settlement.
C. The Parties Have Engaged in Sufficient Discovery for Plaintiffs to Gauge the Adequacy of Settlement Whether the parties have engaged in sufficient discovery for Plaintiffs to gauge the
adequacy of the Settlement turns on whether Plaintiffs have “obtained a sufficient understanding of the case to gauge the strengths and weaknesses of the claims and the adequacy of the settlement.” N.Y. State Teachers' Ret. Sys. v. Gen. Motors Co., 315 F.R.D. 226, 236 (E.D. Mich. 2016). Plaintiffs have taken three depositions and served three sets of Requests for Production, totaling twenty-four Requests, as well as nine interrogatories. See ECF No. 57-1– ECF No. 57-5. Defendants have produced nearly 3,000 pages of documents. In addition, the factual record was developed in numerous hearings before the Court, including a hearing involving testimony from the Independent Inspector and another two-day evidentiary hearing which entailed live testimony from six witnesses. See ECF No. 108; ECF No. 111.
Discovery is ongoing, but Plaintiffs have had a meaningful opportunity to gauge the strengths and weaknesses of their claims, and they have concluded that a settlement is adequate. The Decree addresses Plaintiffs’ concerns because it imposes numerous failsafes intended to protect the members of the Class and Subclass from COVID-19. First, it requires the Jail to provide regular reporting regarding the population of the Jail and the impact of COVID-19 on the Jail’s population. See Ex. B at ¶¶ 4–5. Second, the Decree calls for unannounced inspections at regular intervals by the Court-appointed Independent
5

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Inspector. The Independent Inspector is empowered to conduct inspections commensurate and in accordance with the Court’s June 18, 2020 Order, ECF No. 56. In addition, the Independent Inspector will monitor the continuing work of the Jail’s Expeditor to evaluate Class and Subclass members for consideration of release on less restrictive conditions other than detention. See id. at ¶ 8. Pursuant to the terms of the Decree, Defendants are obligated to use their best efforts to implement the recommendations of the Independent Inspector or to provide a written explanation for why, despite using their best efforts, Defendants are unable to do so. The Independent Inspector will opine in subsequent visits whether Defendants have undertaken their best efforts.
In addition, the Decree provides machinery to ensure that the ventilation and air flow in the Jail is safe, see id. at ¶ 13, provisions to ensure that there is adequate testing for COVID-19 in the Jail, reporting of the results of that testing, and appropriate quarantining procedures, see id. at ¶¶ 14–18, and it ensures that Class and Subclass members will continue to receive adequate hygiene and personal protective equipment. See id. at ¶ 19. Further, the Decree ensures that the Independent Inspector will pay particular attention to the Jail’s efforts to maximize social distancing. See id. at ¶ 20.
The parties have also agreed that they will endeavor to resolve any dispute regarding the Decree promptly and will only have recourse to the Court in the event of an emergency or if they cannot reach a resolution themselves. Independently, the underlying case will be stayed upon entry of the Decree unless and until Plaintiffs seek enforcement of the Decree. This mechanism provides further comfort to Plaintiffs that Defendants will endeavor in good faith to uphold their obligations as set forth in the Decree and that, in the
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event of a dispute, Plaintiffs can quickly have recourse to the Court, which is particularly important in light of the urgency required to confront the pandemic.
D. Likelihood of Success on the Merits When inquiring into the likelihood of success on the merits for purposes of
approving the Settlement, the Court “[weighs] the plaintiff’s likelihood of success on the merits against the amount and form of the relief offered in the settlement.” UAW, 497 F.3d 615, 631 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88 (1981)). The question is ultimately “whether the parties are using settlement to resolve a legitimate legal and factual disagreement.” Id at 632.
The parties are settling to resolve legitimate factual and legal disagreements. There have been significant factual disagreements between the parties about the conditions in the Jail. Indeed, “[b]ecause of the dramatically different descriptions of the way in which detainees were being confined at the Jail when this matter was filed, the Court allowed the factual record related to [Plaintiffs’ Motion for a Temporary Restraining Order] to be further developed,” ECF No. 124, Pg.ID 2804, and the Court ordered an independent inspection of the Jail. ECF No. 45, Pg.ID 734. Based on the Independent Inspector’s findings, the testimony offered at the Court’s evidentiary hearing, and the documents offered into evidence, the Court made findings regarding the way in which people are being detained at the Jail. See ECF No. 124, Pg.ID 2804. Still, the parties have continued to dispute the extent to which Class and Subclass members are safe in the Jail.
The Settlement also resolves difficult and novel legal questions about which the parties disagree. The parties provided the Court with extensive briefing and oral argument regarding the legal standard applicable in this case. Plaintiffs allege that their constitutional rights under the Fourteenth Amendment and their statutory rights under Title II of the ADA
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and Section 504 of the Rehab Act are being violated because of their detention in the Jail during the COVID-19 pandemic. Specifically, Plaintiffs brought four independent claims for release: (i) unconstitutional punishment in violation of the Fourteenth Amendment; (ii) unconstitutional confinement in violation of the Fourteenth Amendment; (iii) discrimination on the basis of disability in violation of the ADA; and (iv) discrimination on the basis of disability in violation of the Rehab Act. Among other things, the parties disagreed about the standard applicable to pre-trial detainees under the Fourteenth Amendment as well as the availability of the ADA and Rehab Act for habeas relief.
The parties are also relying on the Settlement to ensure a quick and effective resolution to their dispute in light of the uncertainty and threat from the ongoing pandemic. Tennessee was recently “ground zero” in the nation’s virus surge.1 In light of the thorny factual and legal difficulties that this case presents, absent the Settlement months could pass before a judgment on the merits might be reached. The Settlement is the most efficient and effective way in which to ensure that Plaintiffs and the Class and Subclass members are safe now and for the duration of the pandemic.
E. Class Counsel and Class Representatives Agree that the Settlement Is Favorable In their reasoned, professional judgment, counsel for both parties agree that the
benefits of the Settlement outweigh the risks of continued litigation. Plaintiffs’ counsel
1 Dan Levin and Juliana Kim, “Tennessee Is ‘Ground Zero’ in the Nation’s Virus Surge, and Christmas Could Make it Worse, The Governor Warns,” The New York Times (Dec. 22, 2020), available at https://www.nytimes.com/live/2020/12/22/world/covid-19-coronavirus/tennessee-is-ground-zero-inthe-nations-virus-surge-and-christmas-could-make-it-worse-the-governor-warns.
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have also consulted with the Class representatives, who all agree that the Settlement is more beneficial than the risks of further litigation.
F. Reaction of Absent Class and Subclass Members After consulting with the Class representatives, Plaintiffs’ counsel have no
knowledge of any objections by absent Class and Subclass members. Any objecting absent Class and Subclass members will have the opportunity to do so throughout the notice-andobjection process explained below.
G. The Settlement Serves the Public Interest The Settlement resolves the parties’ disputes and provides immediate relief to
medically vulnerable people in the Jail who are in danger of severe consequences should they become infected with the novel coronavirus. The Decree contains detailed, concrete steps that Defendants will undertake to protect against the virus’ spread in the Jail. There is always a risk that jail outbreaks may spill into the community outside the jail as staff, visitors, and incarcerated people cycle in and out of the facility. The Decree will therefore also help to minimize the spread of COVID-19 in Shelby County and Tennessee more broadly. This factor weighs strongly in favor of approving the Settlement, particularly in light of the especially difficult public health crisis that the State of Tennessee is currently confronting.
II. Reasonable Notice to the Class Requires Posting Notices In the Jail “The court must direct notice in a reasonable manner to all class members who
would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). Two forms of notice are attached hereto as Exhibits D and E. The first version, Exhibit D, is written in plain text and is intended to be understood by individuals with a fifth grade or lower literacy level (the “Plain Text Notice”). The second version, Exhibit E, is slightly more complex, and is
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intended to be understood by individuals who read at a higher literacy level (the “Detailed Notice” and together with the Plain Text Notice, the “Notices”).
The manner of providing notice is reasonable when it “apprise[s] the . . . members of the class of the terms of the proposed settlement so that class members may come to their own conclusions about whether the settlement serves their interests.” UAW, 497 F.3d at 630 (internal quotation marks omitted); see also In re Gen. Tire & Rubber Co. Sec. Litig., 726 F.2d 1075, 1086 (6th Cir. 1984) (upholding notice that “described the terms of the settlement, the reasons for [class representatives’ decision to settle], the legal effect of the settlement and the rights of the [class members] to voice their objections”). “Due process does not, however, require actual notice to each party intended to be bound by the adjudication of a representative action.” Fidel v. Farley, 534 F.3d 508, 514 (6th Cir. 2008) (emphasis in original); see also In re S. Ohio Corr. Facility, 173 F.R.D. 205, 211–12 (S.D. Ohio April 22, 1997) (finding manner of notice reasonable where “[d]efendants posted a copy of the notice in a conspicuous place in the cellblocks of all the Ohio adult male prisons”).
In UAW, the Sixth Circuit concluded notice was “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” because “[t]he notice . . . clearly explained its purpose, discussed the nature of the pending suit and proposed class and accurately summarized the 76-page settlement agreement and incorporated exhibits in a little over four pages.” UAW, 497 F.3d at 629–30. Additionally, “enclosed with the notice was a copy of the settlement agreement, ensuring that [class members] would have full access to the very document the district court would examine at the fairness hearing.” Id. at 630.
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Here, the substance of the two forms of the notice is adequate. Like in UAW, the Detailed Notice discusses the suit and summarizes the Decree in less than four pages. The Plain Text Notice discusses the suit and summarizes the Decree in ten pages that are accessible and easy to understand. Also like in UAW, the Class members will have the opportunity to review the full Decree should they choose to do so.
The manner of notice is also reasonably calculated to apprise interested parties of the Decree and give Class and Subclass members an opportunity to object. The Parties have prepared two versions of the notice to ensure all Class and Subclass members can understand the terms of the settlement, irrespective of literacy level, education level, and language. The Plain Text Notice is intended to be understood by individuals with a fifth grade or lower literacy level, while the Detailed Notice is slightly more complex, and is intended to be understood by individuals who read at a higher literacy level. The Plain Text Notice will be posted in both English and Spanish to ensure all Class and Subclass members can understand the contents. The Plain Text Notice will be posted in each of the housing units of the Jail.
Next to each posting, there will be a message indicating that the pod counselor has copies of the Detailed Notice, the Consent Decree, and the Court Order defining the Class and Subclass for detainees to review. Each pod counselor will retain copies of the English and Spanish versions of the Notices, the Consent Decree, and the Court Order defining the Class and Subclass. Each pod counselor will maintain these copies and will provide detainees with access to review these copies upon request. In this way, Class and Subclass members will be able to access the Notices and the Consent Decree, much like the proposed
11

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UAW class members could access the notice and the 76-page settlement agreement that the notice summarized.
The Notices explain in simple terms that Class and Subclass members can object to the terms of the Consent Decree by writing out their objections and mailing them to the Court. The Notices also provide a toll-free phone number that Class and Subclass members can call from the Jail to discuss the Settlement with Plaintiffs’ counsel.
In the event the Court enters the Consent Decree, the Jail will modify these procedures. The Jail will post a message in the communal areas that indicates the Consent Decree is available for review upon request from a pod counselor. The Jail will maintain a copy of the Consent Decree with each pod counselor until the Consent Decree is no longer in place. Providing notice in this manner is reasonably calculated to apprise all current and future members of the Class and Subclass of the terms of the settlement.
CONCLUSION For the foregoing reasons, the parties respectfully request that the Court grant their joint Motion. Dated and jointly and respectfully submitted this 22nd day of January, 2021.
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PENTECOST, GLENN & MAULDIN, PLLC By: /s/ Nathan D. Tilly
James I. Pentecost (#11640) Nathan D. Tilly (#31318) J. Austin Stokes (#31308) 162 Murray Guard Drive, Suite B Jackson, Tennessee 38305 (731) 668-5995 AND Marlinee C. Iverson (#18591) Bridgett L. Stigger (#29415) Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 (901) 222-2100 Attorneys for Respondents-Defendants
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AMERICAN CIVIL LIBERTIES UNION
By: /s/ Andrea Woods Andrea Woods 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 awoods@aclu.org

Brice M. Timmons (Bar No. 29582) Black McLaren Jones Ryland & Griffee, A Professional Corporation 530 Oak Court Dr. Suite 360 Memphis, TN 38117 Telephone: (901) 762-0535 Facsimile: (901) 762-0527 btimmons@blackmclaw.com
Josh Spickler (Bar No. 021019) Wesley Dozier (Bar No. 037735) Just City P.O. Box 41852 Memphis, TN 38174 Telephone: (901) 206-2226 josh@justcity.org
Steven John Mulroy (Bar No. 28831) Bredesen Professor of Law Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 Telephone: (901) 603-8779 smulroy@memphis.edu

Amreeta S. Mathai Jeffery P. Robinson American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500 amathai@aclu.org jrobinson@aclu.org
Zoe Brennan-Krohn American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0769 zbrennan-krohn@aclu.org
Maria Morris American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 548-6607 mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849) Stella Yarbrough (Bar No. 33637) ACLU Foundation of Tennessee P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org syarbrough@aclu-tn.org

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Joseph Bial* 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Fascimile: (202) 223-7420 jbial@paulweiss.com Darren Johnson* Meredith L. Borner Jonathan M. Silberstein-Loeb Edward C. Robinson, Jr. 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Fascimile: (212) 757-3990 djohnson@paulweiss.com mborner@paulweiss.com jsilberstein-loeb@paulweiss.com erobinson@paulweiss.com
* = pro hac vice application forthcoming
Attorneys for Petitioners-Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on Defendants via the Court’s ECF system on this the 22nd day of January, 2021.
/s/ Andrea Woods

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Exhibit A

Case 2:20-cv-02359-SHL-atc Document 161-1 Filed 01/22/21 Page 2 of 2 PageID 3202

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

Favian Busby, Russell Leaks, and Joseph Nelson on their own behalf and on behalf of those similarly situated;
Petitioners-Plaintiffs,
v.

Civil Action No. 2:20-cv-2359-SHL-atc

Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office,

Respondents-Defendants.

[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND PERMISSION TO POST CLASS
NOTICE The parties having jointly submitted a Motion for Preliminary Approval of Class Settlement and Permission to Post Class Notice, and this Court having reviewed the parties’ Consent Decree, setting forth the terms and agreements, and the Settlement Agreement having been signed by all parties; This Court also having reviewed the Notices, which are approved by all parties and provide a mechanism for objections to be submitted; IT IS HEREBY ORDERED that the Motion is GRANTED, and the Consent Decree, together with the Notices are preliminarily approved subject to review by the Class and Subclass and objections if any at a Fairness Hearing in this matter scheduled for _____________ ___, 2021.

IT IS SO ORDERED, this __th day of January, 2021.

/s/ SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE

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Exhibit D

Case 2:20-cv-02359-SHL-atc Document 161-4 Filed 01/22/21 Page 2 of 11 PageID 3217
Information about COVID-19 Court Case in the Shelby County Jail
What is this paper? This paper talks about a court case about COVID-19 in the Shelby County Jail. This paper talks about an agreement to make changes in the Jail to end the court case. This paper gives general information about the court case and what is happening. There is a longer paper that has all of the details about this case. You can ask for the longer paper from your pod counselor. Introduction This paper talks about a court case about COVID-19 in the Shelby County Jail.
In April 2020, lawyers from the ACLU, Just City, and other organizations started a court case about COVID-19 in the Shelby County Jail. Another word for this court case is a “lawsuit.”
The lawsuit said that the jail was not safe for people who have medical problems or disabilities because of COVID-19. People with things like diabetes, asthma, cancer, and HIV are more likely to get very sick if they get COVID-19. People with other medical problems are also at high risk.

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These are just a few examples. People who are older are also more likely to get very sick if they get COVID-19.
The court case was a special kind of case called a “class action.” This means that it was a case trying to make changes for many people. The court case was trying to make things safer for people who have medical problems or disabilities in the jail.
Even if you never talked to any lawyers about the case, you might be part of it if you have a medical problem or disability. That is because a “class action” makes changes for big groups of people.
You are part of this case if you are in jail and you are at high risk for COVID19. People who are part of this case are called “Class Members”. The “class” means the group of people in the jail who are part of this case. You are part of the “class” even if you have never talked to any of the lawyers at the ACLU or Just City.
How Do I Know If I Am Part of the Case? Am I a Class Member?
These people are part of the case:
• Everyone who is 65 years old or older • Everyone who is “medically vulnerable” This means people who have
medical problems that make it more dangerous if they get COVID-19. People with these things are “high risk” if they get COVID-19. If you have one of these conditions, you are part of the case:
o Heart disease o Diabetes o High blood pressure o Poorly Controlled HIV o Cancer (if you have cancer now or if you had it in the past) o Moderate to Severe Asthma o Lung disease, like COPD o Kidney disease undergoing dialysis

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o Autoimmune disorders, like lupus o History of organ transplant • Everyone who is “obese” –have a body mass index of more than 40.
Agreement About This Case Court cases take a very long time. Since this case started, the lawyers for the ACLU and the lawyers for the jail have been talking to each other. They have been trying to come to an agreement that would be ok with everyone.
Now, the lawyers have an agreement. The jail has agreed to follow certain procedures to protect people from COVID-19. The full list of these procedures is available from your pod counselor.
The jail will make changes to clean the air better to protect people from COVID-19.
A person from the outside, called an “inspector,” will come to the jail and look at what is happening and see if it is safe.

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People who experience symptoms will get tested for COVID-19.
But, if you are a member of the Class, you can say if you think the agreement on this paper is ok or not. If you are part of the case, you can say what you think about this agreement. You can ask questions. You can also say if you disagree, or if you think the case should not end or if you think the agreement is not good. This paper talks about how to do these things. If you think this agreement is ok, you do not have to do anything! But if you have questions, or if you disagree, you can tell the lawyers about them. Or you can tell the court and the judge about what you think too.
You can also call this toll-free number if you have questions or concerns. You can call 800351-4313 from 9 a.m. to 12 p.m. if you do not understand what this paper says. What is Happening Now The lawyers in this case have an agreement about how to end the case. This agreement is called a “consent decree.” This is a legal word. It means an agreement that everyone must follow. It is a long process to do a consent decree. Here is how it works. • First, the lawyers agree on how they think the case could end. The jail agreed to follow certain procedures to protect people from COVID. The ACLU and Just City lawyers think these procedures are good. The lawyers write down what they agree on. The paper with this agreement is the “consent decree.”

Case 2:20-cv-02359-SHL-atc Document 161-4 Filed 01/22/21 Page 6 of 11 PageID 3221
This already happened.
• Then, the people in the jail can say what they think about the “consent decree.” They can read the plan. They can ask the lawyers questions. They can tell the judge if they do not like the agreement.
This is what this paper is about. This is happening now.
• Then, the judge thinks about the consent decree and makes a decision. The judge reads the consent decree. The judge reads and thinks about what people in the jail think. The judge reads and thinks about what the lawyers say. Then the judge can “approve” the consent decree. That means that it is official. Or, the judge can tell the lawyers they have to make changes to it.
The judge will make her decision on _______________.
• After the judge “approves” the consent decree, the jail must do what the consent decree says. They must follow the rules in it.
What the Agreement Says
This part talks about what the jail is going to do to protect people from COVID-19. This part says what is in the “consent decree.” These are the most important things that the jail has agreed to do. There is a long legal paper called the “Consent Decree” that says exactly what the jail has to do. You can look at the whole consent decree.
These are the big things in the consent decree:
Inspecting (Coming to the Jail)
Someone from the outside who is not part of this lawsuit will visit the jail. This person is called an “Independent Inspector.” That person does not work for the jail or the sheriff’s office. That person does not work for the ACLU. The person is “independent”. The Inspector will be someone who knows about how jails work, and about how to keep people safe in jails.

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The inspector will come at least once every 90 days. That is once every 3 months. The inspector will not tell the jail before they visit – the visits will be “unannounced.” The inspector can look all around at the jail. The inspector can look at papers that say how many people are in the jail. The inspector can learn how many people have been tested for COVID.
The inspector will write reports after each visit. The reports will say what is happening in the jail about COVID. The reports will say what the jail should do differently to protect people from COVID. The jail must think about those reports. The jail must do what the inspector says, or else say why they cannot do that.
Ventilation (Air Movement)
The jail is changing its “ventilation system.” “Ventilation system” means how air moves through a building. The jail is making changes to make sure the air is safe. The jail is making changes to make sure that COVID does not go from one cell to another through the ventilation system, like through heating or air conditioning pipes or ducts.
The jail will show what these changes are. If the ACLU lawyers think these changes are not good enough, and the air is still not safe, then an expert will visit the jail. The expert will look at the ventilation system and say what the jail should do differently.
COVID Testing
Any person who has “COVID symptoms” can get a COVID test. “COVID symptoms” means the kinds of things that people who have COVID sometimes feel.
“COVID Symptoms” includes:
• Fever • Cough • Chills (feeling very cold and shivery) • Sore throat • Losing sense of taste or smell

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• Hard to breathe • Headache • Body or muscle aches • Runny nose • Nausea (feeling sick to your stomach) or vomiting (throwing up) • Diarrhea
Anyone in the jail who has any of these things can get a COVID test.
The jail will tell people if they have COVID as soon as practicable after they get a test.
Any person who has been near someone who has COVID can get a test too if recommended by applicable guidelines. If you have been near someone who has COVID, you may be offered a test even if you don’t feel sick.
People who have COVID
If a person has COVID, the jail will do things to protect the person with COVID and to protect the other people in the jail.
Any person who tests positive for COVID will be “isolated.” This means the person will be separated from other people. This helps to stop COVID from spreading.
People who are “isolated” can still have their personal things. They can still have rec time. They can still get medical care.
The jail will do “contact tracing.” “Contact tracing” means finding out who a person with COVID has been near. Anyone who has been close to a person with COVID can get tested if recommended by applicable guidelines. Anyone who has been close to a person with COVID will be “quarantined” if recommended by applicable guidelines. This means they are separated from other people to stop COVID from spreading.
People who are “quarantined” can still have their personal things. They can still have rec time. They can still get medical care.

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Cleaning

The jail will provide everyone access to cleaning supplies. Every person will have things to clean their cells and bunks.

Masks Every person will have masks. There are 2 kinds of masks. Some masks are made of cloth, and they can be washed. Some masks are called “surgical masks,” like doctors wear. Those are made of a special kind of paper, and they cannot be washed.
The jail will give members of the Class either: • 3 “surgical” (paper) masks or

• 2 cloth masks

For people who have

“surgical” (paper) masks, the jail

will give each person 3 new masks once a week. So every 7 days, each person

gets 3 new masks.

For people who have cloth masks, the jail will wash the masks 2 times a week. The jail will give out new cloth masks when needed.

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Social Distancing
“Social distancing” means staying away from other people. “Social distancing” stops COVID from spreading.
The “independent inspector” who looks at the jail will think about “social distancing” The inspector will look at what the jail is doing so that people can stay away from each other. The inspector will look at how many people are in the jail and if there is enough room for people to be “social distanced.”
The inspector will write in reports about this. The inspector will say if there are things the jail should do differently. These are “recommendations” that the inspector thinks the jail should do.
The jail must answer the inspector’s “recommendations.” The jail must either do what the inspector says, or explain why it can’t do that.
Why Is This Happening?
Lawsuits and court cases take a long time. The lawyers think that this agreement is better than going to trial. It will make changes happen faster than waiting for a trial. COVID is happening right now, and is very dangerous. The lawyers for the ACLU and Just City think that this agreement is the best way to keep people in the jail safe. All of the lawyers think this agreement is fair.
What You Can Do

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If you have questions about this agreement or this paper, you can call the ACLU and Just City. The toll-free number is 800-351-4313. You can call any time from 9 a.m. to 12 p.m. You can call collect. The call will not be recorded.
If you are a member of the Class and if you want to tell the judge that you do not agree with what is in this paper, you can write to her. The address to write to the judge is:
Clerk of the Court RE: Busby et al v. Bonner et al., 2:20-cv-02359-SHL-atc U.S. District Court for the Western District of Tennessee 167 North Main Street #242 Memphis, TN 38103
If you want to call or write, you must do that before _____________ ___, 2021

Case 2:20-cv-02359-SHL-atc Document 161-5 Filed 01/22/21 Page 1 of 5 PageID 3227
Exhibit E

Case 2:20-cv-02359-SHL-atc Document 161-5 Filed 01/22/21 Page 2 of 5 PageID 3228
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LAWSUIT CONCERNING PROTECTION OF MEDICALLY VULNERABLE AND
DISABLED PERSONS IN THE SHELBY COUNTY JAIL FROM COVID-19
INTRODUCTION AND BACKGROUND
This Notice is to inform members of the respective “Class” and “Subclass” (as defined below) of a proposed settlement of a class action lawsuit to protect medically vulnerable and disabled persons held in the Shelby County Jail from COVID-19. Lawyers for the Class and lawyers for the Sheriff have spent several months attempting to reach an agreement to end this lawsuit. They have reached a proposed settlement agreement in the form of a proposed Consent Decree, which is summarized below. The Consent Decree is also available for your review by requesting it from a pod counselor. The Court must decide whether to approve the Consent Decree. Before doing so, if you are a member of the Class or Subclass, you have the opportunity to submit any objection to the Court if you disagree with the terms of the settlement. Please be advised that if you fail to follow the exact procedures and deadline for filing objections to the proposed settlement, you will lose any opportunity to object to any part of the proposed Consent Decree.
The class action lawsuit dealt with whether people at the highest risk of serious illness if they catch COVID-19 were safe. You are a member of the “Class” if you are 65 years old or older, or if you have a medical condition that puts you at higher risk of serious illness if you get COVID19, such as heart disease, diabetes, hypertension, COPD, are obese with a body mass index (BMI) of over 40, as well as other conditions. Most people in the “Class” are also in the “Subclass,” (unless you are in the Class because of your age or BMI). The Subclass are people with disabilities protected by the Americans with Disabilities Act. If you are not sure whether you are in the Class or Subclass, you can refer to the Court’s order certifying the classes which is attached here and available from each pod counselor or you can call this toll-free number, 800-351-4313, from 9 a.m. to 12 p.m.
PROPOSED CONSENT DECREE
To resolve this case, the lawyers for the parties have agreed to request that the Court enter the attached proposed Consent Decree as an Order of the Federal District Court. This means that the Jail would need to comply with the terms of the Consent Decree. If the Court enters the Consent Decree, but the Jail does not follow the terms of the Consent Decree, the lawyers for the Class can tell the Court that the Jail is violating the agreement. The Court will ensure all parties follow the terms of the agreement. If the Court enters the Consent Decree, but you feel the Jail is not following the terms outlined below, you can call the lawyers for the Class at this toll-free number, 800-351-4313, from 9 a.m. to 12 p.m. You can call collect and you will not be recorded. A summary of the key terms of the proposed Consent Decree is as follows:
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Independent Inspections and Reporting
• The Jail will report COVID-19-related data to an Independent Inspector and to the lawyers for the Class on a periodic basis. This data will include the total population of the Jail as a whole and by housing unit, the number of COVID-19 tests conducted, and the results of those tests.
• The Inspector will come at least once every ninety days to inspect the Jail. The Inspector will make unannounced visits. The Inspector must be granted unrestricted access to the Jail.
Ventilation
• The Jail is currently improving the ventilation and air quality. The Jail will have to prove to the lawyers for the Class that the ventilation and air quality are safe. If the lawyers for the Class still think that either the ventilation or the air quality is unsafe, then an Expert will come to inspect the Jail. The Expert will make recommendations to the Jail. The Jail will either implement those recommendations, or will explain why it will not or cannot implement them.
Testing, Isolation, and Quarantine for COVID-19
• All individuals who are showing symptoms of COVID-19 shall be offered a test for COVID-19 as soon as practicable.
• All individuals tested for COVID-19 shall be informed of their test results as soon as practicable.
• When a person tests positive for COVID-19, the Jail will perform contact tracing. People who come into contact with someone that tests positive for COVID-19 will be offered tests and quarantined as recommended by the applicable guidelines from the CDC and/or the Shelby County Health Department.
• Individuals who test positive will be isolated. Individuals who are isolated will only return to the general population in accordance with CDC guidance.
• Individuals who are quarantined or isolated because they have contracted or been exposed to COVID-19 will have access to personal items and property, recreation time, and medical care.
Hygiene and Personal Protective Equipment
• In addition to the scheduled cleaning times, Class and Subclass members will be provided access to cleaning products to clean their cells and sleeping areas.
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• Individuals of the Class and Subclass will receive three surgical masks that must be replaced every week, or two two-ply cloth masks that the Jail must launder twice a week. The Jail must replace these cloth masks as needed. If the Jail does not have enough of these two-ply cloth masks, it may give individuals two cloth masks approved by the Tennessee Department of Health. These must also be laundered twice a week and replaced as needed. The Jail must replace these cloth masks with two-ply cloth masks as soon as possible. Two-ply cloth masks have two layers of cloth instead of one.
Social Distancing
• The Independent Inspector will review the Jail’s efforts to maximize social distancing and make recommendations for improving social distancing. The Jail must implement these recommendations, or explain why it will not or cannot implement them.
• The Independent Inspector will review whether the population levels of the Jail are safe. The Independent Inspector will also review the work of the Jail’s Expeditor to evaluate Class and Subclass members to determine whether their cases should be presented to the District Attorney, criminal defense counsel, and/or the presiding Judge for consideration of release on less restriction conditions than detention.
REASONS FOR PROPOSING COURT APPROVAL OF THE CONSENT DECREE
Counsel for the parties decided to settle the case because of the risks of litigation and the need for a quick and effective resolution to protect members of the Class and Subclass from COVID-19. The lawyers cannot control what would happen if the case went to trial. It would also take many months to litigate the case to trial and to receive a judgment from the Court. A settlement achieves immediate protections from the pandemic for members of the Class and Subclass. Plaintiffs’ counsel believes that these protections are substantial and that they may exceed what could be obtained through litigation. Counsel for both parties believe the settlement is fair and reasonable.
PROCEDURE AND DEADLINES TO OBJECT TO THE CONSENT DECREE
The Court has set a hearing to consider whether to approve the proposed Consent Decree. That hearing is set to occur on ____________ ___, 2021 at the U.S. District Court for the Western District of Tennessee.
If you agree with the proposed Consent Decree, which is available from your respective pod counselor, you do not need to do anything. Once the Court enters the Consent Decree, everyone in the Jail and in the Class and Subclass will benefit from it automatically. If you are a member of the Class or Subclass and wish to object to the terms of the Consent Decree, you must do so in writing no later than ____________ ___, 2021.
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Your written objections should be addressed as follows: Clerk of the Court RE: Busby et. al v. Bonner et al., 2:20-cv-02359-SHL-atc U.S. District Court for the Western District of Tennessee 167 North Main Street #242 Memphis, TN 38103
ADDITIONAL INFORMATION Should you have questions or seek additional information regarding this matter, you are directed to contact counsel for Plaintiffs as follows: ACLU of Tennessee Re: Shelby County Class Action P.O. Box 120160 Nashville, TN 37212 800-351-4313
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 Case 2:20-cv-02359-SHL-atc Document 161-2 Filed 01/22/21 Page 1 of 9 PageID 3203
Exhibit B

Case 2:20-cv-02359-SHL-atc Document 161-2 Filed 01/22/21 Page 2 of 9 PageID 3204

THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE

Favian Busby, Terric Edwards, Russell Leaks, Saul Molina Martinez, Joseph Nelson, and Mark Phillips, on their own behalf and on behalf of those similarly situated;
PetitionersPlaintiffs,
v.
Floyd Bonner, Jr., in his official capacity, Shelby County Sheriff, and the Shelby County Sheriff’s Office;
RespondentsDefendants.

Case No. 2:20-cv-2359-SHL

CONSENT DECREE
Plaintiffs Favian Busby, Terric Edwards, Russell Leaks, Saul Molina Martinez, Joseph Nelson, and Mark Phillips, by and on their own behalf and on behalf of a class of similarly situated persons, brought this action in May 2020 against Defendants Floyd Bonner, Jr., in his official capacity as the Shelby County Sheriff, and the Shelby County Sheriff’s Office challenging the constitutionality and legality of Plaintiffs continued detention in light of the COVID-19 pandemic.
The parties desire that this action be settled by an appropriate Consent Decree without the burden, expense, and disruption of protracted litigation. Accordingly, subject to this Court’s approval of this Consent Decree (the “Decree”) and the related Release and Settlement Agreement, the parties agree to the entry of this Decree as final and binding among and between themselves as to the issues raised in Plaintiffs’ Complaint as well as their First and Proposed Second Amended Complaints. This Decree shall not in any way be construed as an admission by any party of any wrongful conduct whatsoever against any person or party.
In resolution of this action, the parties hereby AGREE to, and the Court expressly APPROVES, ENTERS, and ORDERS, the following:

Case 2:20-cv-02359-SHL-atc Document 161-2 Filed 01/22/21 Page 3 of 9 PageID 3205

I. Parties Bound by this Decree

1. This Decree shall be binding on Defendants Floyd Bonner, Jr., in his official capacity as the Shelby County Sheriff and the Shelby County Sheriff’s Office, and upon all those who succeed any of this action’s named Defendants in his or her official capacity, as well as all other employees, agents, elected officials, and representatives of the Shelby County Sheriff and the Shelby County’s Sheriff Office (collectively “Defendants”).

2. This Decree shall also be binding on Plaintiffs Favian Busby, Terric Edwards, Russell Leaks, Saul Molina Martinez, Joseph Nelson, and Mark Phillips, by and on their own behalf and on behalf of a class of similarly situated persons, and their agents and representatives and on behalf of the Class certified by the Court pursuant to its Order dated June 10, 2020 (ECF No. 38) (collectively “Plaintiffs”).

II. Effective Date

3. Date”).

This Decree shall become effective when filed with the Court (the “Effective

III. Independent Inspections and Reporting

4. Reporting. Within fourteen (14) days of the Effective Date, and thereafter on a monthly basis until the Decree terminates, Defendants shall provide Mike Brady, the Courtappointed Independent Inspector (the “Independent Inspector”), and Plaintiffs’ counsel with a report containing (a) the total population of the Shelby County Jail (the “Jail”) as a whole and by housing unit; (b) the number of COVID-19 tests conducted for detainees and for staff at the Jail in aggregate and by pod and the results of those tests; (c) the number of staff that are on leave, or who have taken leave within the past thirty (30) days due to symptoms of COVID-19; and (d) the number of detainees within the past thirty (30) days who died and who had exhibited symptoms of or tested positive for COVID-19 prior to their death.

5. Within thirty (30) days of the Effective Date, and at least once every sixty (60) days thereafter, Defendants shall provide the Independent Inspector and Plaintiffs’ counsel lists of the members of the Class and Subclass as defined by the Court (ECF No. 38). For each Class and Subclass member, Defendants shall specify whether the Class or Subclass member is housed in a single cell, shared cell, or dormitory.

6. Inspections. Within a month of the Effective Date, or within a reasonable time that is convenient for the Independent Inspector, the Independent Inspector will conduct an inspection of the Jail (“the First Inspection”) commensurate and in accordance with the procedure provided by the Court in its Order dated June 18, 2020 (ECF No. 56) (the “June 18 Order”) and this Decree, except that the parties and the Independent Inspector will not be required to provide the Independent Inspector’s reports to the Court.

7. The Independent Inspector will conduct further unannounced inspections in keeping with the June 18 Order and this Decree within ninety (90) days of the last inspection until the termination of this Decree, or upon the Independent Inspector’s written recommendation and/or determination that no further inspections are necessary.

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Case 2:20-cv-02359-SHL-atc Document 161-2 Filed 01/22/21 Page 4 of 9 PageID 3206

8. During each inspection, the Independent Inspector shall be afforded unrestricted access to communicate and/or meet with the Jail’s Expeditor. During any of the Independent Inspector’s meetings with the Jail’s Expeditor, the Jail’s Expeditor will explain, what, if any, efforts have been taken on behalf of any members of the Class and Subclass to evaluate them in order to determine whether the Expeditor should present any Class or Subclass members’ cases before the District Attorney, applicable criminal defense counsel, and/or the presiding Judge for consideration of release on less restrictive conditions than detention. The Jail’s Expeditor will provide documentation in her possession to the Independent Inspector sufficient to substantiate to the satisfaction of the Independent Inspector what efforts she has taken on behalf of any Class or Subclass member. If, however, the Independent Inspector is not satisfied that the documentation so provided substantiates what efforts the Jail’s Expeditor has taken, the Independent Inspector may request further information in writing from the Jail’s Expeditor. Defendants shall produce the documentation that the Jail’s Expeditor provides to the Independent Inspector, including medical and mental health records, to Plaintiffs’ counsel via electronic mail or via any other manner agreed upon by the parties. All documentation provided to Plaintiffs’ counsel under this Paragraph shall be “Confidential” and is subject to the Stipulated Protective Order dated June 29, 2020 (ECF No. 75).

9. Within a reasonable time after each inspection, the Independent Inspector will provide a written report to counsel for the parties as provided below, containing the Independent Inspector’s findings regarding the issues affecting the Jail’s response to COVID-19, particularly as they relate to medically-vulnerable detainees including, but not limited to, those mentioned in the June 18 Order. See ECF No. 56, Pg.ID 845.

Counsel for Petitioners-Plaintiffs Andrea Woods Amreeta Mathai American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 awoods@aclu.org amathai@aclu.org
Maria Morris American Civil Liberties Union 915 15th Street N.W., 7th Floor Washington, D.C. 20005 mmorris@aclu.org
Zoe Brennan-Krohn American Civil Liberties Union 39 Drumm Street San Francisco, CA 94111 zbrennan-krohn@aclu.org
Stella Yarbrough ACLU Foundation of Tennessee

P.O. Box 120160 Nashville, TN 37212 syarbrough@aclu-tn.org
Josh Spickler Just City P.O. Box 41852 Memphis, TN 38174 josh@justcity.org
Steven John Mulroy Cecil C. Humphreys School of Law, University of Memphis 1 N. Front St. Memphis, TN 38103 smulroy@memphis.edu
Joseph J. Bial PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 2001 K Street, NW Washington, DC 20006-1047 jbial@paulweiss.com

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Case 2:20-cv-02359-SHL-atc Document 161-2 Filed 01/22/21 Page 5 of 9 PageID 3207

Brice M. Timmons Donati Law, PLLC 1545 Union Ave Memphis, TN 38104 brice@donatilaw.com
Counsel for Respondents-Defendants James I. Pentecost Nathan D. Tilly J. Austin Stokes 162 Murray Guard Drive, Suite B

Jackson, Tennessee 38305 jpentecost@pgmfirm.com ntilly@pgmfirm.com astokes@pgmfirm.com
Marlinee C. Iverson Bridgett L. Stigger Shelby County Attorney’s Office 160 North Main Street, Suite 950 Memphis, TN 38103 Marlinee.Iverson@shelbycountytn.gov Bridgett.Stigger@shelbycountytn.gov

10. If the Independent Inspector makes any recommendations in his reports, Defendants agree either to implement them or, within fourteen (14) days of receiving a report from the Independent Inspector, to provide the Independent Inspector and Plaintiffs’ counsel with an explanation in writing for why, despite their best efforts to do so, Defendants will not or cannot adopt the Independent Inspector’s recommendation(s).
11. During inspections subsequent to the First Inspection, the Independent Inspector shall report on whether Defendants have taken best efforts to implement the Independent Inspector’s prior recommendations.
12. Defendants shall pay for the Independent Inspector’s fees, costs, and expenses.
IV. Ventilation
13. Before January 31, 2021, Defendants will endeavor to prove to the satisfaction of Plaintiffs’ Counsel that the ventilation and air quality within the Jail is safe as it relates to COVID19. If after receiving Defendants’ proof, Plaintiffs’ counsel in good faith believes that the ventilation and air quality within the Jail is unsafe as it relates to COVID-19, Plaintiffs’ counsel shall, within seven (7) days of receipt of said proof from Defendants, provide Defendants’ counsel with written notice setting forth the reason(s), based upon scientific or other evidence, why the ventilation and/or air quality within the Jail as it relates to COVID-19 remains unsafe. If Plaintiffs’ counsel sends such notice, the parties will agree to the appointment of a qualified environmental engineer (the “Ventilation Expert”) to advise Defendants in writing (that written advice to be shared with the Independent Inspector and Plaintiffs’ counsel) regarding best practices to reduce the risk of airborne transmission of COVID-19 within the Jail. If within fourteen (14) days of Plaintiffs’ counsel sending written notice, the parties cannot agree to the appointment of a Ventilation Expert, Defendants’ counsel and Plaintiffs’ counsel will as soon as practicable submit the names and qualifications of two or more suggested experts to John S. Golwen who will as soon as practicable thereafter appoint the Ventilation Expert. To enable the Ventilation Expert to compile his/her advice, Defendants agree to provide the Ventilation Expert with sufficient facilityspecific documentation, to permit the Ventilation Expert to consult with knowledgeable persons at the Jail, and if necessary to allow the Ventilation Expert to conduct an inspection. In forming his/her advice, the Ventilation Expert may consult with others provided he/she abides by the

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provisions of Paragraph 26. Shelby County agrees to implement the recommendations of the Ventilation Expert; or, within fourteen (14) days of receiving the written advice of the Ventilation Expert, to explain to the Ventilation Expert, Independent Inspector, and Plaintiffs’ counsel in writing why it will not or cannot despite using its best efforts to do so. Defendants and Plaintiffs’ counsel will equally share the Ventilation Expert’s costs and fees.
V. Testing, Isolation, and Quarantine for COVID-19
14. All detainees and staff who are displaying the symptoms of COVID-19 as defined by the CDC shall be offered a test for COVID-19 as soon as practicable.
15. All individuals tested for COVID-19 shall be informed of their test results as soon as practicable.
16. When a person tests positive for COVID-19, the Jail shall use best efforts and all available resources, including cameras, logs, and other records, to perform contact tracing in accordance with both the CDC’s guidelines and the guidelines of the Shelby County Health Department and will offer to test and shall quarantine any detainees who would be, based upon information learned via said contact tracing, recommended to be quarantined by the applicable guidelines from the CDC and/or the Shelby County Health Department.
17. Detainees who test positive for COVID-19 will be isolated in accordance with CDC guidelines and will not be allowed into the general population unless or until permitted pursuant to the CDC guidelines.
18. Detainees held in isolation or quarantine because they have contracted or been exposed to COVID-19 shall have access to personal items and property, recreation time, and medical care.
VI. Hygiene and Personal Protective Equipment
19. Defendants will provide (a) Class and Subclass members access to cleaning agents and materials to clean their cells and sleeping areas, in addition to the scheduling cleaning times; and, (b) within thirty (30) days of the Effective Date, Class and Subclass members with either (i) three surgical masks replaced weekly or (ii) two cloth masks not less than two-ply that shall be laundered twice a week by the Jail’s laundry services and that shall be replaced as needed (the “Two-Ply Masks”). If within thirty (30) days of the Effective Date, Defendants are not in possession of a sufficient number of the Two-Ply Masks, then it may supply Class and Subclass members with two cloth masks approved by the Tennessee Department of Health (laundered twice a week by the Jail’s laundry services and replaced as needed) which it will replace continuously with Two-Ply Masks as soon as Defendants, acting with all reasonable dispatch and using their best efforts, acquire them.
VII. Social Distancing
20. In keeping with the June 18, 2020 Order (ECF No. 56), the Independent Inspector shall review the Jail’s efforts to maximize social distancing, including by reviewing the safety of the population levels of the Jail’s housing areas, and the work of the Jail’s Expeditor, and make
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recommendations, as informed by the CDC and other industry-related guidance on COVID-19 safety measures, regarding how Defendants can and should maximize social distancing. Defendants shall implement those recommendations, or explain (in accordance with Paragraph 10) why, using their best efforts, Defendants will not or cannot adopt the Independent Inspector’s recommendation(s).
VIII. Enforcement and Modification
21. This Court shall retain jurisdiction over the parties for purposes of modifying or enforcing this Decree.
22. Dispute Resolution. If a party to this Decree believes a dispute exists relating to the performance or interpretation of this Decree, counsel for the party will notify opposing counsel in writing, describing the dispute and clearly identifying that they are invoking the dispute resolution practice. The other party shall respond in writing to such notice within seven (7) business days of receipt of the notice. Within seven (7) business days of receipt of the response, counsel for both parties shall meet and confer and attempt to resolve the issue. If, however, Plaintiffs’ counsel are notified of an issue posing an immediate and serious risk to the health and safety of Plaintiffs or Class or Subclass members that requires prompt resolution to protect the health of Plaintiffs or Class or Subclass members, Plaintiffs’ counsel will provide written notice to Defendants’ counsel and the parties will engage in good-faith efforts to resolve the matter prior to Plaintiffs seeking court intervention. Notwithstanding the foregoing, Plaintiffs reserve the right to seek court intervention in a shorter timeframe than described elsewhere in this Paragraph should an issue they reasonably believe requires prompt resolution to protect the health and safety of Class or Subclass members arise. Only if the parties are unable to resolve the dispute through the process described in this Paragraph may the dispute be submitted for judicial resolution.
23. Court Resolution. Subsequent to the parties engaging in and completing the dispute resolution process as set forth in Paragraph 22, Plaintiffs may seek enforcement of this decree if Defendants fail to comply with any terms of this Decree, including if Plaintiffs have a good faith basis to believe that Defendants have not engaged best efforts to adopt the recommendations of the Independent Inspector or the Ventilation Expert (if applicable pursuant to Paragraph 13). If Plaintiffs seek enforcement of this Decree and obtain relief from the Court as a result of seeking such enforcement, Plaintiffs may seek an award of the reasonable attorneys’ fees and costs incurred in seeking enforcement of this Decree. Should Plaintiffs elect under such circumstances to seek enforcement of this Decree and the Court deny the relief sought on grounds that Plaintiffs’ action is frivolous, unreasonable, or without foundation, Defendants may seek an award of the reasonable attorneys’ fees and costs incurred in responding to Plaintiffs’ attempt to seek such enforcement.
24. Changes to Defendants’ Policies and Procedures. Plaintiffs recognize that Defendants maintain discretion to implement any and all policies and procedures in responding to emergency situations related to the COVID-19 pandemic taking into consideration legitimate penological interests, constitutional requirements, and their overarching goals and objectives in preventing the spread of COVID-19. Defendants will act in good faith when exercising their discretion and best efforts related to this Decree. Nothing in this Decree limits Defendants’ discretion to respond as it deems necessary to the COVID-19 pandemic. In the event that such a
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response requires a modification of the terms of this Decree, Defendants will give Plaintiffs’ counsel notice of the change as soon as practicable, but within fourteen (14) days of any material alteration. Plaintiffs’ counsel retains the ability to challenge the use of such discretion if Plaintiffs’ counsel has reason to believe that Defendants have not exercised their discretion in good faith. Should any dispute under this provision need to be resolved by the Court, Paragraph 23 shall apply as to awarding fees and costs to the party obtaining relief from the Court. Given the evolving understanding of COVID-19, the changing access to resources and treatments, and the appropriate responses to it, Defendants will continue in good faith to take and incorporate input and updated guidance from the CDC, WHO, Independent Inspector, Ventilation Expert (if applicable pursuant to Paragraph 13), and other public health authorities.
25. Other Modifications. The parties may mutually agree to changes to this Decree at any time before the entry of a final judgment pursuant to the terms of this Decree. If the parties are able to agree on a necessary change to this Decree, they shall present any such changes to the Court for approval by joint motion.
IX. Confidentiality
26. Any information disclosed, shared, or obtained by any party in connection with this Decree and marked “Confidential” is subject to the Stipulated Protective Order dated June 29, 2020 (ECF No. 75).
X. Stay of Litigation
27. Upon entry of this Decree, the case shall be stayed unless and until Plaintiffs undertake any action to seek enforcement of this Decree pursuant to the provisions herein. On motion by either party, the Court will consider whether to lift the stay in the case.
XI. Termination
28. This Decree will terminate upon the earliest of either (a) a declaration by the CDC and the Tennessee Department of Health that the COVID-19 pandemic is over and/or has ended, or (b) an FDA-approved COVID-19 vaccine is offered to and administered according to FDA guidelines to all detainees housed at the Jail for a period of more than fourteen (14) days and who accept a vaccination, along with educational materials about the vaccine and non-punitive incentives to take the vaccine. Upon termination of this Decree pursuant to this Paragraph, the parties shall inform the Court and the Court shall enter a final judgment of dismissal.
29. If this Decree has not otherwise terminated one year after the Effective Date, the parties may, at any time, jointly move the Court to terminate the Decree. If the parties do not agree that the Decree should terminate one year after the Effective Date, Defendants shall have the right, at any time, to petition the Court to terminate the Decree on the grounds that the Decree is no longer necessary.
XII. No Prevailing Party
30. No Party shall be considered to be the “prevailing” or “successful” party within the meaning of any statute or law as a result of this Decree. Each party shall bear its own costs,
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Case 2:20-cv-02359-SHL-atc Document 161-2 Filed 01/22/21 Page 9 of 9 PageID 3211 attorneys’ fees, and expenses incurred up to the date of the entry of this Decree, except for as outlined within the Release and Settlement Agreement agreed upon by the parties.
XIII. 18 U.S.C. § 3626(a)(1)(A) 31. For purposes of jurisdiction and enforcement of this Decree only, the parties jointly
request that the Court find that this Decree satisfies the requirements of 18 U.S.C. § 3626(a)(1)(A) in that it is narrowly drawn, extends no further than necessary to correct any violation of a federal right, and is the least intrusive means necessary to correct any violation of the federal rights of the Plaintiffs. Notwithstanding, nothing in this Decree shall be construed as an admission by any party of any wrongful conduct whatsoever against any person or party. Judgment is hereby entered in accordance with the foregoing Decree this ____ day of ____________, 2021.
____________________________________ The Honorable Sheryl H. Lipman
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 Case 2:20-cv-02359-SHL-atc Document 161-3 Filed 01/22/21 Page 1 of 4 PageID 3212
Exhibit C

Case 2:20-cv-02359-SHL-atc Document 161-3 Filed 01/22/21 Page 2 of 4 PageID 3213

Case 2:20-cv-02359-SHL-atc Document 161-3 Filed 01/22/21 Page 3 of 4 PageID 3214

Case 2:20-cv-02359-SHL-atc Document 161-3 Filed 01/22/21 Page 4 of 4 PageID 3215